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U.S. Attorney General Loretta Lynch on Monday vowed to strike down the most controversial law in North Carolina.
Lych’s declaration, delivered during a Monday afternoon press conference, marks the latest salvo fired in an increasingly fiery legal battle between the federal government and the Tar Heel State over House Bill 2, a recently passed law that forbids transgender people from using single-sex bathrooms that correspond with their gender identity.
Lynch spoke alongside the Justice Department’s Civil Rights Division head Vanita Gupta to announce a federal lawsuit against the state of North Carolina, Gov. Pat McCrory, the state’s Department of Public Safety, and the University of North Carolina.
The Justice Department first warned McCrory, a Republican, in a May 4 letter stating that his passage of H.B. 2 violates Title VII of the Civil Rights Act of 1964. In addition to targeting bathroom genders, the law—which has sparked nationwide protests including business boycotts and travel bans—also blocks local governments from raising the minimum wage or passing LGBT anti-discrimination laws.
The DOJ filed its federal lawsuit just hours after McCrory filed his own lawsuit against the Department of Justice, in which he claimed that HB 2 does not single out transgender citizens and called the federal definition of the Civil Rights Act “overreach.”
“Here are the facts: Transgender men are men–they live, work and study as men. Transgender women are women–they live, work and study as women.”
“They created state-sponsored discrimination against transgender individuals,” said Lynch at the start of the press conference.
Lynch reiterated that the North Carolina law stands in direct violation of federal civil rights law, and that the DOJ is prepared to halt federal funding to the state if McCrory continues to resist calls to drop H.B. 2. She also said that the Justice Department is seeking a court order to bar HB 2 statewide, and to rule it “impermissibly discriminatory.”
In a moving speech, Lynch compared the North Carolina law to other forms of discrimination throughout U.S. history, including codified racism and the ban on same-sex marriage.
We have seen bill after bill in state after state taking aim at the LGBT community. Some of these responses reflect a recognizably human fear of the unknown, and a discomfort with the uncertainty of change. But this is not a time to act out of fear. This is a time to summon our national virtues of inclusivity, diversity, compassion and open-mindedness. What we must not do – what we must never do – is turn on our neighbors, our family members, our fellow Americans, for something they cannot control, and deny what makes them human. This is why none of us can stand by when a state enters the business of legislating identity and insists that a person pretend to be something they are not, or invents a problem that doesn’t exist as a pretext for discrimination and harassment.
Gupta also took the podium to address and criticize McCrory’s lawsuit in its misidentification of gender identity.
“Proponents of measures like H.B. 2 misinterpret or make up facts about gender identity,” Gupta said. “Here are the facts: Transgender men are men–they live, work and study as men. Transgender women are women–they live, work and study as women.”
According to the Justice Department’s letter to North Carolina, the law’s singling out of transgender citizens violates the sex discrimination coverage of the Civil Rights Act. But McCrory disagrees, telling Fox News on Sunday that the feds are “trying to define gender identity. And there is no clear identification or definition of gender identity.”
The May 4 letter gave North Carolina authorities until the end of Monday to stop enforcing H.B. 2. Instead of complying, McCrory filed a lawsuit against the federal government on Monday, saying that the feds had issued a “radical reinterpretation” of civil rights law in stating that it covers transgender citizens.
“This is an attempt to unilaterally rewrite long-established federal civil rights laws,” reads McCrory’s lawsuit, which was jointly filed alongside North Carolina Department of Public Safety head Frank Perry. “In a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts.”
McCrory’s lawsuit against the Justice Department goes on to claim that no transgender employee of the state of North Carolina has sued on the basis of Title VII discrimination. This stance was countered soon after the bill’s passage with a lawsuit against the state by a number of transgender state employees and students arguing that HB 2 is discriminatory under Title IX.
Despite McCrory’s assertion that Title IIV does not apply because no citizen has referenced it in a private lawsuit, his claim may not hold up in court. The U.S. Equal Employment Opportunity Commission (EEOC) states clearly on its website that state laws like H.B. 2 are in violation of federal employment law.
EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.
The federal agency goes on to clarify that such discrimination includes “denying an employee equal access to a common restroom corresponding to the employee’s gender identity.”
At Monday’s Justice Department press conference, Gupta clarified that while laws like H.B. 2 proliferate due to language around restroom use, they are a smokescreen for blanket discrimination.
“Calling H.B. 2 a ‘bathroom bill’ trivializes what this is really about. H.B. 2 translates into discrimination in the real world.”
“Calling H.B. 2 a ‘bathroom bill’ trivializes what this is really about,” said Gupta. “H.B. 2 translates into discrimination in the real world.”
Lynch and Gupta both took moments during their speeches Monday to directly address the transgender community. After explaining why and how the DOJ was launching its legal strike against the North Carolina law, Lynch struck a tender tone in her reassurances to trans citizens.
“No matter how isolated or scared you may feel today,” Lynch said, addressing transgender Americans, “we stand with you; and we will do everything we can to protect you going forward.”
After referring to the “dark days” of Jim Crow laws with “signs above restrooms, water fountains and on public accommodations,” Lynch reminded reporters at the press conference that North Carolina is her home state. She concluded with a pledge to continue fighting discriminatory state laws.
“This country was founded on a promise of equal rights for all,” said Lynch. “And we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy—but we’ll get there together.”
Mary Emily O'Hara is an LGBTQ reporter. Her work has appeared in Rolling Stone, NBC Out, Daily Dot, Broadly, Vice, the Daily Beast, the Advocate, Huffington Post, DNAinfo, Al Jazeera, and Portland's Pulitzer Prize-winning newsweekly Willamette Week, among other outlets.