The Department of Justice Goes to War with Pat McCrory | Triangulator | Indy Week
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The Department of Justice Goes to War with Pat McCrory 

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On Wednesday, as news broke that the Department of Justice had done what any second-year law student could've predicted—ruling that House Bill 2's bathroom provision violated the Civil Rights Act and thus put billions of federal dollars at risk—a haggard-looking Governor McCrory sought to defend himself at the N.C. Chamber's Annual Government Affairs confab at the N.C. Museum of History.

Over the sounds of the Air Horn Orchestra gathered outside, the governor sought yet again to portray himself as a victim of liberal aggression. This is all Charlotte's fault, he insisted. He was only protecting private businesses from government overreach. Besides, he added, twenty-seven other states have "almost the exact same law."

Not quite. While twenty-eight states do not prohibit housing discrimination against LGBTQ people, according to the Movement Advancement Project, only three specifically prohibit local governments from doing so: Alabama, Tennessee, and, now, North Carolina. Moreover, with HB 2, North Carolina became the first state to regulate transgender people's access to public restrooms.

He's right, though, that Charlotte's ordinance is a "mandate" on private businesses—just like all federal laws that prohibit discrimination are "mandates." The only difference is that McCrory deems transgender people less worthy of legal protections than women and minorities.

The U.S. Department of Justice disagrees. As Vanita Gupta, the head of the DOJ's civil rights division, wrote to McCrory on May 4, "The State is engaging in a pattern or practice of discrimination against transgender state employees and both you, in your official capacity, and the State are engaging in a pattern or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies."

Gupta gave the state until Monday to "remedy these violations" by "confirming that the State will not comply with or implement HB 2."

On Thursday, House Speaker Tim Moore said the General Assembly would ignore the feds' deadline: "We will take no action on Monday. That deadline will come and go. We don't ever want to lose any money, but we're not going to get bullied by the Obama administration."

Then, on Monday morning, McCrory filed a federal lawsuit accusing the Obama administration of "baseless and blatant overreach" and asking the court to rule that transgender people are not entitled to protections under the Civil Rights Act. Later that day, Moore and Senate leader Phil Berger filed their own lawsuit, which begins with this whiny discursion: "When people find themselves in the intimate settings of public bathrooms, locker rooms, or showers, they expect to encounter only other people of the same biological sex. ... Yet when North Carolina sought to protect that expectation in law ... a torrent of criticism was unleashed against the State, its officials, and its citizens. The abuse has now reached its apex with the unprecedented threats by the United States Department of Justice."

The DOJ was not amused.

On Monday afternoon, Attorney General (and Durham native) Loretta Lynch held a press conference to announce a "law enforcement action" against North Carolina: the DOJ was suing McCrory, the N.C. Department of Public Safety, and the University of North Carolina, seeking a court order that HB 2's bathroom provision is "impermissibly discriminatory" and a statewide ban on its enforcement. And, Lynch added, "we retain the option of curtailing federal funding."

"This action," Lynch admonished, "is about a great deal more than just bathrooms. This is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect them—indeed, to protect all of us. And it's about the founding ideals that have led this country—haltingly but inexorably—in the direction of fairness, inclusion, and equality for all Americans."

In this way, she linked HB 2 to Jim Crow: "This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation. ... This is why none of us can stand by when a state enters the business of legislating identity and insists that a person pretend to be something they are not or invents a problem that doesn't exist as a pretext for discrimination and harassment."

Long story short: this thing is headed to the Supreme Court, but not before North Carolina once again blows millions of dollars in legal fees defending the morally indefensible.

It's worth reiterating here—as McCrory did to the Chamber last week—that HB 2 does much more than regulate bathrooms. But the bathroom provision was what gave the legislature the room to ram through a veritable grab bag of right-wing policy goals. The transgender bathroom freakout was just the cover.

So even if the DOJ wins in court, HB 2's other components—including a prohibition on living-wage ordinances and eliminating your right to sue over workplace discrimination—will remain.

triangulator@indyweek.com

  • This thing’s headed to the Supreme Court, but not before we blow a few million dollars

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