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US Department of Justice Threatens McCrory Administration Over HB2

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Yesterday, the United States Department of Justice (USDOJ) mailed a letter to Governor Pat McCrory informing him that, in the opinion of USDOJ, House Bill 2 violates federal law. Specifically USDOJ said that HB2 violates Title VII, which prohibits discrimination in the workplace on the basis of sex. USDOJ Principal Deputy Assistant Attorney General Vanita Gupta wrote:

This letter is to inform you that the Department of Justice has determined that, as a result of compliance and implementation of North Carolina House Bill 2 (“H.B. 2”), both you and the State of North Carolina (the “State”) are in violation of Title VII of the Civil Rights Act of 1964…Specifically, 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 of practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies.

The letter then goes into more depth on Title VII and federal law, and states that it finds HB2 to be “facially discriminatory” — meaning that there is no way that it could be applied in a way that complies with Title VII. This brings us to the crux of the matter — what USDOJ is going to do:

When the Attorney General of the United States has a reasonable basis to believe that a state or person has engaged in a pattern or practice of discrimination in violation of Title VII, she may apply to the appropriate court for an order that will ensure compliance with Title VII…This responsibility has been delegated to the Principal Deputy Attorney General of the Civil Rights Division.

Please advise the Department therefore, no later than close of business on May 9, 2016 whether you will remedy these violations of Title VII, including by confirming that the State will not comply with or implement H.B. 2, and that it has notified employees of the State and public agencies that, consistent with federal law, they are permitted to access bathrooms and other facilities consistent with their gender identity.

Essentially, the United States Attorney General has threatened to file a Title VII enforcement action against Governor Pat McCrory, the University of North Carolina, and the North Carolina Department of Public Safety unless they cease the implementation of HB2.

The USDOJ letter comes on the heels of a Fourth Circuit decision holding that a transgender individual can state a claim under under Title IX for discrimination on the basis of gender identity, even though the text of Title IX prohibits discrimination only on the basis of “sex.” Granted, Title IX and Title VII are different sets of law — the former outlaws discrimination based on sex at any educational institution receiving federal assistance, while the latter deals with many forms of discrimination in employment. Nonetheless, the Fourth Circuit decision and the USDOJ letter reflect an increasingly willingness on the part of the federal government to include discrimination against transgender individuals as discrimination on the basis of sex.

Soon after the issuance of the USDOJ letter, the Wall Street Journal reported that the McCrory administration is considering how to move forward:

The Obama administration “has not only staked out its position for North Carolina, but for all states, universities, and most employers in the U.S.,” said Mr. McCrory. “The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy. We will be reviewing to determine the next steps.”

The Wall Street Journal report also indicated that Representative Paul Stam anticipates compliance with the federal mandate, but disagrees with the actions of USDOJ:

House Speaker Pro Tem Paul Stam said he doesn’t support changes to the law for now. “Obviously we’re not going to say ‘Yes sir, yes sir, Mr. President,’ ” he said.

Mr. Stam said it is wrong for the Justice Department to use the letters to send a message about bathroom use by transgender people that could apply to all major employers.

“The Obama administration has declared war on everybody in the whole nation,” he said. “They are saying gender identity is purely subjective, and has no objective criteria.”

For the moment, it is unclear how the McCrory administration and others in state government will handle the issue. The letter reads as though HB2 clearly puts North Carolina out of compliance with Title VII. However, a second glance reveals that none of the federal courts cited in the letter has jurisdiction over North Carolina. According to Thomas Wheatley at The American Thinker, this calls the claims of the letter into question:

Yes, technically, the Justice Department is accurate in saying that “federal courts” have applied Title VII to claims the basis of which is solely a person’s transgender status; rather, a handful of federal courts have held as much.  The overwhelming majority of federal courts have not.

Why did the Department of Justice fail to mention these cases?  Surely the omission was not deliberate.  Don’t they know that, were this an actual case, cherry-picking case law and making an argument based on an incomplete representation of the law flirts dangerously with violating Rule 11(b) of the Federal Rules of Civil Procedure?

No, I’m sure it was an accident.

Regardless, USDOJ gave Governor McCrory and others until next week to respond.

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Discussion

  1. Like their fascist brown-noser Lonnie who’ll doubtless be spewing one of his mindless non sequitur “talking points” trollings at this article pretty soon, Loretta Lynch and all the other gaystapo goose-stepping leftard bullies attacking this bill have no logical case whatsoever, just a fallacious mixture of appeal to the masses (of other states, since North Carolina’s population overwhelmingly favors HB2) and appeal to force (“Do what a few unelected tyrants in black say, or we cut off your funds!”).

    Should any lawless federal judges hand down any more nonsensical rulings like the Fourth Circuit’s, I suggest our state’s government should just reject Title IX and Title VII funds altogether, and direct the government-funded schools to make up the deficit by firing everyone whose job title includes any version of the words “diversity” or “sensitivity” or “tolerance” in it. Those child-abusing parasites ought to be in prisons and padded cells anyway, not in public institutions poisoning children’s minds with their evil and treasonous ideology.

  2. Pinto,
    Your best post,yet.No doubt the village idiot will be coming along real soon with a bless your heart or a false narrative.

  3. The NC State Legislature nor the US Congress can pass laws stripping minority citizens of their individual freedoms under the US Constitution. The Salem Witch Hunts would be unconstitutional today no matter how popular or how much they were promoted by Civitas Institute and Art Pope.
    The Joe McCarthy Era paranoia called McCarthism used fear to ruin innocent lives for his personal political gain and also violated the constitutional rights of people like Pete Segger.
    Jim Crow era segregation and terrorism was popular in souther states but violated the constitutional rights of people of color.
    The State of NC will loose in court because is cannot defend bigotry nor discrimination. Conservative groups like Civitas Institute and Evangelical groups are pushing false narratives which will easily be disproved in formal court proceedings.
    Trying to defend the anti LBGT legislation in Federal court will be a waste of taxpayer money.

  4. Hey Lonnie,
    When has a waste of money been a problem with you? You didn’t have a problem when Omoron doubled the national debt.The Gimmedats have been wasting my money my whole life.You and the queers have finally awaken the normal people in this country.I hope you get this law changed so when men go in woman’s restrooms 95% will never vote for the Gimmedats again.

  5. Larry
    What gives greater political power or citizenship rights than “those people ” ?

  7. American Thinker lays the smack down on Loretta Lynch and her gaystapo goose-steppers’ lies about Title VII:

    Sensing something amiss (citing an EEOC opinion as primary foundation for federal law signals desperation), I looked into whether Title VII protects against discrimination on the basis of gender identity. After spending about thirty minutes researching at my local law library, I found the following cases, all of which hold that Title VII does not protect against discrimination on the basis of gender identity alone:

    Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ. (Western District of Pennsylvania – 2015): “[N]early every federal court that has considered the question in the Title VII context has found that transgender individuals are not a protected class under Title VII.”

    Lopez v. River Oaks Imaging & Diagnostic Grp., Inc. (Southern District of Texas – 2008): “Courts consistently find that transgendered persons are not a protected class under Title VII per se.”

    Etsitty v. Utah Transit Auth. (10th Circuit – 2007): “[This Court] concludes discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.”

    Sweet v. Mulberry Lutheran Home (Southern District of Indiana – 2003): “Discrimination on the basis of sex means discrimination on the basis of the plaintiff’s biological sex, not sexual orientation or sexual identity, including an intention to change sex.”

    Oiler v. Winn-Dixie La., Inc. (Eastern District of Louisiana – 2002): “After a review of the legislative history of Title VII and the authorities interpreting the statute, the Court agrees… that Title VII prohibits employment discrimination on the basis of sex, i.e., biological sex. While Title VII’s prohibition of discrimination on the basis of sex includes sexual stereotypes, the phrase “sex” has not been interpreted to include sexual identity or gender identity disorders.”

    Ulane v. E. Airlines, Inc. (7th Circuit – 1984): “While we recognize distinctions among homosexuals, transvestites, and transsexuals, we believe that the same reasons for holding that the first two groups do not enjoy Title VII coverage apply with equal force to deny protection for transsexuals.”

    Sommers v. Budget Mktg., Inc. (8th Circuit – 1982): “Although this circuit has not previously considered the issue raised on this appeal, we are in agreement with the district court that for the purposes of Title VII the plain meaning must be ascribed to the term “sex” in absence of clear congressional intent to do otherwise. Furthermore, the legislative history does not show any intention to include transsexualism in Title VII”.

    Powell v. Read’s, Inc. (District of Maryland – 1977): “A reading of [Title VII] to cover plaintiff’s [gender identity discrimination] grievance would be impermissibly contrived and inconsistent with the plain meaning of the words.”

    Grossman v. Board of Education (District of New Jersey – 1975): “In the absence of any legislative history indicating a congressional intent to include transsexuals within the language of Title VII, the Court is reluctant to ascribe any import to the term “sex” other than its plain meaning. Accordingly, the Court is satisfied that the facts as alleged fail to state a claim of unlawful job discrimination based on sex.” (This decision was later affirmed by the Court of Appeals for the 3rd Circuit.)

    Again, this was after spending only thirty minutes searching.

    http://www.americanthinker.com/blog/2016/05/justice_department_ignores_crucial_precedents_on_the_north_carolina_bathroom_bill_.html

  8. Gaystapo goose-steppers’ higher center of leftard brainwashing to lose its federal funding if we don’t let guys pretending to be girls expose their wieners to girls and women while watching them change their clothing in ladies’ locker rooms:

    http://abcnews.go.com/US/wireStory/north-carolina-leaders-denounce-federal-threat-lgbt-law-38892672

    Oh no, genital mutilators and sexual predators might not be allowed to extort any more taxpayer funding to poison students’ minds with their bigoted misogynistic child-abusing sex-offending-exhibitionist-and-voyeur-enabling ideology! What a tragedy! Someone call the waaahhhmbulance!

  9. Larry
    What gives you greater political power or citizenship rights than “those people ” ?

  10. Lying Lonnie,
    I have no clue what point you are trying to make.Maybe because those people need mental help just like you.

  11. You always have a long list of scapegoats ( those people ) with no wealth or political power who are the people you have been trained to blame and hate ( People of color, Musliums, LBGT, Liberals, RINOs, )

  14. Lying Lonnie,
    I thought you were a big Union man.When Ostupid and Hillary cost the coal workers union to lose their jobs,that was alright with you.I love showing you Liberals hypocrisy.You aren’t for Unions,you are just mouth.

  18. Instead of learning from their experience, politicians who pass transgender laws – which male pedophiles could use to find new victims – turn the tables by implying the victims are the problem.

    Triller says this is not a hypothetical concern. Shortly after Washington state changed gender identity status under the law, a man exposed himself to a girls swim team. When asked what he was doing, he replied, “The law has changed, and I have a right to be here.”

    “The message that sends really loud and clear to those teenage girls,” Triller says, finally breaking out into tears, “is that that’s OK, that a grown man can come and watch them shower, and we’re not going to do anything about it. That tells me that the lack of education isn’t on our side.”

    The only way to end the “rape culture,” a continual concern of feminists, is to deny men access to potential victims and protect women from the jarring, scarring memories that always lurk near the surface.

    “That’s a piece of this conversation that’s been missing,” she says.

    https://www.lifesitenews.com/news/these-sexual-assault-victims-want-you-to-know-why-open-bathroom-bills-are-a

    Lonnie, you misogynist bigot, why do you hate rape victims so much?

  20. How many city employees of Baltimore came to N.C. In a year? Maybe two?Those two probably would only come to see Lonnie about causing a riot at a conservative rally.We have seen what those shoppers did in the businesses of Baltimore.Just a peaceful group of activists like Lonnie.They are always peaceful and nice,unlike the Tea Party that said hateful things like “No men in Women’s bathrooms.If I was the Govenor I would send that borderline retard a thank you letter of thanks for not coming.

  22. Meanwhile, Target continues to circle the toilet bowl:

    http://www.breitbart.com/big-government/2016/05/12/target-ceo-says-reaction-bathroom-policy-just-like-first-used-blacks-ads-2/

    In the company’s initial April 19 statement, the store said, “we welcome transgender team members and [customer] guests to use the restroom or fitting room facility that corresponds with their gender identity.”

    The statement came as Americans were recognizing and rejecting the revolutionary political agenda behind the push for transgender status.

    Since April 19, “We had a lot of tough feedback. But sitting here today, we know we made the right decision,” Cornell insisted.

    That tough feedback includes a consumer boycott that now has 1.2 million supporters, much damage to the company’s brand, and a massive sell-off on Wall Street that has chopped the company’s share price from almost $84 on April 19 to $75.70 on May 11.

    That’s a loss of $8.30 per share, or 10 percent, or almost $5 billion since April 19.

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