The head of the federal Justice Department’s Civil Rights Division wrote to North Carolina Governor Pat McCrory that HB2 (see our previous blog posts about HB2 here and here), a law banning public agencies from allowing transgender individuals to using restroom and locker room facilities that correspond with their gender identity, violates two federal civil rights laws.
The letter notes that the Department of Justice (DOJ) and other federal agencies have interpreted Title VII and Title IX to prohibit discrimination against transgender individuals as discrimination based on sex. According to the DOJ, HB2 is facially discriminatory because it treats transgender employees, whose identity does not match their “biological sex” differently from similarly situated non-transgender employees. The DOJ applies the same logic to those covered by Title IX and cites case law that educational institutions “generally must treat transgender students consistent with their gender identity.
After signing the law, the Governor issued an Executive Order indicating that the law would be enforced (although in a limited fashion). The DOJ said that was not okay and said the law shows that both the Governor and State are engaged in a pattern and practice of discrimination in violation of Title VII and Title IX. The DOJ gave the state of North Carolina until May 9 to confirm that they will not comply with or implement HB2 at public agencies and entities.
The DOJ would have to file an action in court against the State or Governor for a determination that HB2 violates Title VII. However, under Title IX, over $4.5 billion dollars in federal education money to public schools and universities could be at risk this year if the Department of Education decides to cut off the funding due to the violation.
Governor McCrory stated that his office will review the letter, but that “the right and expectation of privacy in one of the most private areas of our personal lives is not in jeopardy.” As of this writing, it is unclear if any other states with similar laws have received such a letter from the DOJ.