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Three Federal Suits Seek The Same Answer - Does HB 2 Discriminate

Nick De La Canal

The fight over House Bill 2 has moved from business boycotts and the court of public opinion to federal court.

On Monday, Governor Pat McCrory filed a federal suit against the U.S. Justice Department. The Republican leaders of the General Assembly filed their own suit against the DOJ shortly afterwards. In response, the DOJ filed its own suit against the state.

All three seek the same thing in essence, a federal ruling on whether or not North Carolina’s controversial law is a form of discrimination against transgender people.

There was a moment Monday that took Dan Bishop’s breath away. It came as he watched U.S. Attorney General Loretta Lynch announce the federal government was suing North Carolina over House Bill 2. "She said this," and then he reads from a transcript, "It was not very long ago that states, including North Carolina, had other signs above restrooms, water fountains and on public accommodations. Keeping people out based on a distinction without a difference."

That distinction was race, the immutable color of someone’s skin. In her press conference, Attorney General Lynch said House Bill 2’s treatment of LGBT individuals was just as discriminatory as the laws that marked the Jim Crowe era South. And she added, "state sanctioned discrimination never looks good and never works in hindsight."

For Dan Bishop, the Republican State Representative from Mecklenburg County who sponsored House Bill 2, there’s another immutable characteristic at play in this debate. "Sex is a biological trait," he says, "Gender identity is not."

It’s now up to federal judges to decide if that is indeed the case.

Credit NCGA
Republican Representative Dan Bishop of Mecklenburg County

Whether sex is defined strictly by biology, or if one’s gender is as much mental as physical is at the crux of the federal suits filed Monday.

Each seeks what’s known as declaratory judgment, a ruling on whether or not the bathroom provisions of House Bill 2 violate sections of the 1964 Civil Rights Act. Two sections in particular, Title VII which protects against employment discrimination and Title IX which bars discrimination at schools.

At a press conference announcing his suit, Governor Pat McCrory said the actions of the U.S. Justice Department, in essence, amounted to a form of bullying and overreach by the Obama administration. "Our nation is one nation, especially when it comes to fighting discrimination, which I support wholeheartedly," he told those assembled. "Ultimately, I think it's time for the U.S. Congress to bring clarity to our national anti-discrimination provisions under Title VII and Title IX."

Reaction to the various suits came quickly. Chris Brook is legal director of the North Carolina ACLU. "This claim of government overreach by Governor McCory is pretty hard to swallow given that it comes on the heels of unprecedented state over reach in telling Charlotte what is best for their residents."

But for Dan Bishop, the federal case against House Bill 2 is nothing more than the Obama administration looking to set a new precedent for LGBT rights nationwide before the president leaves office. "They want to roll this newest social revolution out across the United States and they don’t have that much time left to do it."

And for Charlotte City Councilwoman Lawana Mayfield, this fight is about more than just a North Carolina law. "Ok, does everyone truly have the right and ability to the pursuit of happiness in the United States of America or do we not?"

For others, House Bill 2 and the corresponding lawsuits will change nothing.

Sitting in her apartment in Charlotte, 26-year-old Jessica Manning freely admits she’s breaking North Carolina Law. "I use the female’s restroom. And I’m not going to stop just because of this bill, or any other bill. I mean, what are they going to do? Arrest me?"

Credit Courtesy of Jessica Manning
Jessica Manning's drivers license

Jessica was born Josh. And even though her driver’s license lists her sex as female, her birth certificate still has the letter M listed under sex.

To Jessica, and other transgender individuals, the fight over which bathrooms they use is more than just a matter of choice or convenience. It’s a civil rights issue. One now before federal judges.