Justice Department tells North Carolina HB2 violates federal law.

Justice Department to North Carolina: Your Anti-LGBTQ Law Violates the Civil Rights Act

Justice Department to North Carolina: Your Anti-LGBTQ Law Violates the Civil Rights Act

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Expanding the LGBTQ Conversation
May 4 2016 6:06 PM

Justice Department to North Carolina: Your Anti-LGBTQ Law Violates the Civil Rights Act

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Will North Carolina Gov. Pat McCrory heed the DOJ's warning?

Chris Keane/Reuters

On Wednesday, the U.S. Department of Justice warned North Carolina that its recently enacted anti-LGBTQ statute violates two federal laws and entreated the state not to enforce the measure. Specifically, the DOJ expressed concern about a provision of the North Carolina law that forbids trans people from using the bathroom that aligns with their gender identity in any government building—including state universities. If the state enforces these provisions against employees, the DOJ noted, it would violate Title VII of the Civil Rights Act of 1964. 

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

“Federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity,” the DOJ wrote, according to a report by the Charlotte Observer. The DOJ is apparently referencing determinations by the Equal Employment Opportunity Commission as well as several federal judges that “sex discrimination” encompasses trans discrimination.

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“HB2 … is facially discriminatory against transgender employees on the basis of sex,” the letter continues, “because it treats transgender employees, whose gender identity does not match their biological sex, as defined by HB2, differently from similarly situated non transgender employees. … Based upon the above, we have concluded that in violation of Title VII, the state is engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights by employees of public agencies.”

The DOJ then requests that North Carolina inform it “no later than the 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 HB2.”

A similar letter advises the University of North Carolina that HB2’s implementation would also violate Title IX of the Education Amendments of 1972. Title IX also prohibits “sex discrimination,” which the Department of Education has similarly interpreted to include discrimination on the basis of gender identity.

Whatever the outcome of this particular fight, the DOJ’s letter further demonstrates the Obama administration’s low-key but vigorous defense of trans rights across the country—a defense that has proved to be strikingly effective.