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US Justice Department Says Bathroom Parts Of HB2 Violate Federal Law

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The U.S. Justice Department has determined North Carolina’s House Bill 2 violates the Federal Civil Rights Act by discriminating against transgender individuals. It’s given the state until close of business Monday to confirm "the state will not comply with or implement House Bill 2."

Ever since it was passed, supporters of House Bill 2 have said it’s just about the bathrooms, ignoring other aspects of the wide-ranging law.

Now the US Justice Department says that bathroom provision is the problem.

"Well, that’s very interesting and it’s very consistent with federal case law right now," says civil rights lawyer Luke Largess.

Two weeks ago, the 4th U.S. Circuit Court of Appeals indicated that transgender students should be allowed to use the bathroom corresponding to their gender identity. The case was in Virginia, but that court has jurisdiction over North Carolina as well.

With that ruling in hand the DOJ is "telling the state of North Carolina you’re in violation of federal law right now," says Largess.

That's in two key ways, both of which are part of the 1964 Civil Rights Act.

First, there’s Title VII which prohibits discrimination in employment.

The DOJ says House Bill 2 discriminates against transgender state employees by forcing them to use the bathroom that matches the sex on their birth certificate, which they argue is a form of sex discrimination.

The Second violation is of Title IX, which  deals with gender discrimination in the educational environment as opposed to the employment environment. That's because there’s a section of House Bill 2 that specifically spells out the use of restrooms and locker rooms in public schools and universities.

All of this was laid out in a letter sent to Governor McCrory on Wednesday.

But that letter does not lay out specifics on what would happen if the state does not comply.

A Justice Department Official tells WFAE they hope North Carolina will come into compliance voluntarily, so that they may continue to receive federal funds.

Estimates vary, but those federal funds total roughly $4.5 billion this year, mainly through money tied to Title IX education programs.

The DOJ could also seek compliance through a court order.

In a statement, UNC President Margaret Spellings says the university system is taking this determination seriously and will confer with the Governor, legislative leaders and lawyers about their next steps.

Lawmakers have had a more testy response. 

"I’m always frustrated when the Federal Government overreaches on something like this. And I’m particularly frustrated when it’s on something that’s just basic common sense," North Carolina House Speaker Tim Moore told WUNC.

In a statement Senate Pro Tem Phil Berger called it a “gross overreach by the Obama Justice Department that deserves to be struck down in Federal Court.”

Governor Pat McCrory says, “The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy.” Then adds, “We will be reviewing to determine the next steps.”

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WFAE's Michael Tomsic discusses the US Justice Department's letter to Governor McCrory regarding HB2 during All Things Considered Wednesday afternoon.

The U.S. Justice Department is threatening legal action against North Carolina over a law requiring transgender people to use the bathroom that corresponds to their birth certificate. The department sent Governor Pat McCrory a letter Wednesday afternoon, and WFAE's Michael Tomsic joined Mark Rumsey to discuss it. 

What's the letter say?

That North Carolina's controversial new law, commonly called House Bill 2, violates civil rights law. Specifically, it violates two parts of federal law that apply to sex discrimination in employment and education. The Justice Department says in both settings, transgender people must be allowed to use the bathroom corresponding to their gender identity, rather than what's on their birth certificate.

That's essentially the same thing a federal appeals court ruled two weeks ago, right?

Right, but just on education. The federal appeals court over our region ruled in a case out of Virginia that lower courts need to defer to the federal Education Department's guidance. On this issue, that guidance is clear: transgender students must be able to use the bathroom of their gender identity. The letter to McCrory references that ruling. 

And what's the legal argument for employment settings?

The bathroom parts of House Bill 2 apply to schools and public buildings, including the governor's mansion, the legislature and local boards of education. The Justice Department says requiring transgender state employees to comply with that is discriminatory.

But the letter stops short of a lawsuit, correct?

Exactly. It gives North Carolina until the close of business Monday to tell the Justice Department "the state will not comply with or implement H.B. 2."

House Bill 2 made changes that go far beyond the bathroom, such as excluding LGBT people from protection against discrimination. Does the letter address that?

It does not. It focuses on the violations relating to bathroom policy. That said, it's not completely clear how broad the letter's attack on the law is. Again, it directly tells the state not to implement H.B.2.

Has Governor McCrory responded yet?

We've requested an interview with him and have not heard back yet.