Gov. Pat McCrory argued against the Obama administration’s view that federal civil rights law protects transgender individuals as well as prohibiting racial discrimination. Feds sue North Carolina over transgender law Attorney General Loretta Lynch compares House Bill 2 to Jim Crow laws

The State of North Carolina and the federal government exchanged lawsuits Monday over the state's effort to limit legal protections for transgender people, but Attorney General Loretta Lynch's withering verbal assault on the state's so-called bathroom bill may wind up resonating as loudly as any shots fired in the legal fusillade.

Explicitly invoking her heritage as a North Carolina native and implicitly drawing on her status as the first African-American woman to serve as the nation's top law enforcement official, Lynch blasted the state law known as House Bill 2, calling it the modern-day equivalent of the post-slavery Jim Crow laws that were challenged in the civil rights movement of the 1960s.


"This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation. We saw it in the Jim Crow laws that followed the Emancipation Proclamation. We saw it in the fears and widespread resistance to Brown v. Board of Education," Lynch declared in a press conference at the Justice Department headquarters in Washington.

While the dispute over bathroom use by transgender individuals might not seem to some to be as weighty as the fight that led Gov. George Wallace to stand astride the schoolhouse door at the University of Alabama, Lynch made clear Monday she sees North Carolina's law as being as mistaken as anything from the Jim Crow era.

"This action is about a great deal more than bathrooms," Lynch declared. "State-sanctioned discrimination never looks good and never works in hindsight. It was not so 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. We have moved beyond those dark days, but not without a tremendous amount of pain and suffering and an ongoing fight to keep moving forward. Let us write a different story this time."

Lynch's sharp language didn't sit well with North Carolina’s Republican Gov. Pat McCrory, who set off Monday's legal action by filing suit against the federal government to head off its threat to cut off federal aid over the hotly-disputed legislation.

"Gov. McCrory is appropriately seeking legal certainty to a complex issue impacting employers and students throughout the country," McCrory spokesman Josh Ellis said Monday night. "In contrast, the attorney general is using divisive rhetoric to advance the Obama administration's strategy of making laws that bypass the constitutional authority of Congress and our courts."

The North Carolina law, passed in March, requires that people using bathrooms, locker rooms and similar facilities in state and local buildings use the facilities corresponding to the gender listed on their birth certificates. The measure also blocks localities from implementing anti-discrimination provisions for lesbian, gay, bisexual and transgender people.

The Justice Department's suit, filed in U.S District Court in Greensboro, N.C., on Monday afternoon, seeks a preliminary injunction to block implementation of House Bill 2. The complaint claims that the North Carolina measure violates Title VII of the Civil Rights Act of 1964, prohibiting discrimination in the workplace, and Title IX of the Education Amendments of 1972, which prohibits discrimination based on gender in schools and school activities.

Those laws don't explicitly include protections for transgender people, but the Justice Department suit notes that the Violence Against Women Act reauthorization bill Congress passed in 2013 did prohibit states receiving funding under that law from discriminating based on "sex" or "gender identity."

The Justice Department's legal action amounted to a counter-suit to the one McCrory filed early Monday. In tandem, the cases create the potential for a future Supreme Court case that could set a precedent, like last year's historic decision legalizing gay marriage nationwide.

“This is not just a North Carolina issue. This is now a national issue,” McCrory declared after filing the suit.

Despite the rush to the courts, the governor said he believes lawmakers on Capitol Hill should settle the matter. "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," he said.

McCrory's suit, filed in U.S. District Court in Raleigh, N.C., asks for injunctive relief to block the Justice Department's demand that the state stop implementing House Bill 2. McCrory, who is up for reelection, seemed to welcome a drawn-out legal fight with the Obama administration, arguing that the Justice Department overstepped its executive authority in interpreting federal civil rights law to provide protections for transgender individuals.

During a press conference Monday, he said that he “asked a federal court to clarify what the law actually is.” And he said he anticipates he will have backing in the coming legal dispute from North Carolina's Legislature as well as from “private sector entities from throughout the United States and possibly other states."

McCrory's suit charges that the Justice Department's effort to force North Carolina's hand “is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the courts.”

The Justice Department last week gave the state and the University of North Carolina System a Monday deadline to stop enforcing the bill or face a federal lawsuit.

Lynch publicly suggested that McCrory's tactics involved a degree of deception. She said the state asked the feds to extend that deadline, then raced to court to file the suit early Monday.

House Bill 2 made North Carolina the first U.S. state to require transgender individuals to use bathrooms that align with the gender on their birth certificate. It was passed in a single-day special session of the state Legislature, and immediately triggered intense protest and became a flashpoint on the campaign trail.

North Carolina risks the potential loss of up to $2 billion in federal education aid. The 17-campus University of North Carolina system alone could be stripped of more than $1.4 billion in federal funding. However, Lynch said Monday that the federal government was not immediately taking steps to cut off that funding.

Peter Lake, a professor of law at Stetson University College of Law, said the issue “had to go to court, it was just a question of who was going to take it there first.”

The pair of lawsuits, and the conflicting state and federal policies, put officials like University of North Carolina System President Margaret Spellings in a “no-win situation,” Lake said, noting that Spellings, a former Education Department secretary, is now faced with the choice of breaking state law or losing federal funding.

Spellings said as much in a letter to federal officials on Monday.

"We hope that the Department of Justice appreciates that the university is in a difficult position,” she wrote. “The university, created by the state of North Carolina, has an obligation to adhere to laws duly enacted by the state's General Assembly and governor. So, too, does the university have an equally clear obligation to follow federal law, including federal prohibitions on discrimination.”

“At this time,” Spellings added, “the university pledges its good faith commitment to assure the proper application of non-discrimination law in the university setting, where there remain many difficult and unanswered questions.”

Spellings walked a fine line, saying the university will abide by federal civil rights laws while noting that the university can't change state law. She also noted that a request is pending for further review of a federal appellate court's ruling last month in favor of a transgender Virginia student, Gavin Grimm, who wanted to use the boys' bathroom at his high school.

That ruling from the 4th Circuit, which creates precedent that is binding in North Carolina, appears to support the Justice Department's position.

"In terms of recent interpretation, the attorney general has the stronger case,” said Jay Holland, an employment lawyer with Maryland law firm Joseph Greenwald & Laake.

However, the 4th Circuit case is more limited than it might appear. The 2-1 decision didn't directly conclude that federal law requires protections for transgender individuals. Instead, the court said Education Department guidance on that subject should be deferred to. And the decision only directly addressed bathrooms, leaving aside the potentially more complex issue of locker rooms, changing facilities and showers.

"I think [the state] will make that argument and say it was narrower. I don’t know whether they'll win on that or not," said University of Richmond law professor Carl Tobias. "It's an arguable argument to be made on the breadth of Grimm."

The Justice Department suit directly tees up that issue, objecting to both the bathroom limits in the North Carolina bill and to restrictions on transgender individuals' use of "changing facilities."

Asked Monday why federal authorities believe there is no distinction between the two, Lynch said: "HB2 doesn't distinguish amongst them. ... There are any number of ways to accommodate privacy interests in a bathroom or in a changing area as long as they are equally available to all students and all employees. You cannot single out any one particular group of people to be treated differently."

The federal government's lawsuit does not take on an even broader question raised by HB2: whether it's constitutional for the state to prohibit local ordinances granting anti-discrimination protections to gays and lesbians. In 1996, the Supreme Court struck down a similar measure in Colorado.

Lynch said the feds plan to leave that to others, apparently referring to a legal challenge the American Civil Liberties Union filed in March.

"There are other lawsuits that are currently pending that we feel will be moving forward at the same time … all of which recognize that HB2 has set in place state-sanctioned discrimination, and we will support those actions, as well," she said.

President Barack Obama has called the North Carolina bill “wrong” and urged its repeal — an opinion shared by civil liberties and LGBT groups, scores of business leaders, entertainers and fellow politicians, including presumptive Republican nominee Donald Trump. A handful of businesses have scaled back operations in the state; some associations have refused to hold conventions there, and Bruce Springsteen and Pearl Jam, among other musical acts, canceled concerts.

Supporters of the measure, including social conservatives and former Republican presidential candidate Ted Cruz, argue the measure protects women and children from being molested by sexual predators in public restrooms.

Following news of the North Carolina suit, Chase Strangio, staff attorney for the LGBT & HIV Project at the American Civil Liberties Union, said McCrory seems like he does not "want to accept transgender people as part of public life."

"It is disheartening to see political leaders digging into a political position that is not only plainly discriminatory and devastatingly harmful to the transgender community, but also unpopular and costly to the entire state of North Carolina," Strangio added.

Even in the court districts where Monday's suits were filed it was possible to detect apparent jockeying by the two sides. McCrory's suit was filed in Raleigh, which is in the state's eastern federal district. The Justice Department suit was filed in Greensboro, which is in the state's middle district.

The Eastern District "is generally more conservative [while] the Middle District has a fair number of more moderate judges and some Obama appointees, as well as some conservatives, too," Tobias said.

The state's lawsuit was assigned to Judge Terrence Boyle, a Reagan appointee whose nominations to the 4th Circuit were blocked by Democrats who pointed to his work as a staffer for late Sen. Jesse Helms (R-N.C.) The Obama administration's suit had not been assigned a judge as of Monday night, but may wind up in front of the judge already handling the ACLU-backed case, Thomas Schroeder. Schroeder, a George W. Bush appointee, issued a 485-page opinion last month upholding a North Carolina voter ID requirement and other voting changes that critics said put unnecessary obstacles in the path of minority voters.

Brianna Gurciullo contributed to this report.



CORRECTION: An earlier version of this alert incorrectly cited a false report that Michael Jordan had threatened to move the Charlotte Hornets out of North Carolina.