by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law, and affiliated faculty member in the IU Department of Gender Studies and the Kinsey Institute.
Why did the United States sue the governor and various state agencies of North Carolina?
As an employer, sponsor of public universities, and provider of federally funded public safety programs and services, North Carolina’s state government is obligated to comply with the non-discrimination requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Act (“VAWA”). All of these federal civil rights laws prohibit discrimination on the basis of sex. VAWA also prohibits discrimination by federal grant recipients like North Carolina on the basis of gender identity.
North Carolina’s recently enacted H.B. 2 requires that multiple-occupancy bathrooms and changing facilities located in North Carolina public agencies “be designated for and only used by individuals … based on their biological sex.” “Biological sex” is defined as ““[t]he physical condition of being male or female, which is stated on a person’s birth certificate.”
On behalf of the United States, the Department of Justice (“DOJ”) alleges that this so-called “bathroom law,” as enforced against transgender persons, is illegal discrimination on the basis of sex. (Other provisions of H.B. 2, such as its preemption of Charlotte’s city ordinance prohibiting discrimination on the basis of sexual orientation and gender identity, are not at issue in the suit.)
Why did North Carolina Governor McCrory sue the United States?
McCrory’s lawsuit asked for a declaratory judgment that North Carolina was not in violation of federal civil rights laws as the DOJ alleges. Essentially, it was a preemptive strike in the face of warnings by the DOJ. The legal questions in both suits are essentially the same.