- The Washington Times - Monday, May 9, 2016

The federal government compared a North Carolina law regulating bathroom access by sex to Jim Crow, and North Carolina accused the federal government of grossly overstepping its authority, as both sides filed lawsuits and slung mud at each other Monday.

The legal brouhaha concerns North Carolina law HB2, which prohibits people from using public facilities of the opposite sex.

At a press conference, Attorney General Loretta Lynch said the law discriminates against transgender people and compared it to the racial codes adopted after the Civil War.

“This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation,” Ms. Lynch said. “We saw it in the Jim Crow laws that followed the Emancipation Proclamation.”

The attorney general said government should not be in the business of “legislating identity,” which she defined as forcing people to “pretend to be something or someone that they are not.”

While North Carolina Gov. Pat McCrory and a Republican legislature said the law is aimed at protecting women and children from predatory men, Ms. Lynch said the law provides “no benefit to society” and only “harms innocent Americans.”

SEE ALSO: N.C. sues Justice Dept. over transgender bathroom law

The federal lawsuit levied against North Carolina says HB2 is in violation of three federal statutes: Title VII of the Civil Rights Act, which prohibits discrimination on the basis of “sex” in employment; Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of “sex” in education; and the Violence Against Women Reauthorization Act of 2013, which prohibits funds for victims services from being allocated on a discriminatory basis of “gender identity,” which is listed as a separate category from “sex.”

North Carolina, meanwhile, said the agency has no authority to interpret federal sex discrimination prohibitions, which refer to an element of biology, as applying to gender identity, which is a psychological state that transgender activists are usually eager to distinguish from biological sex.

Gay rights groups praised the Justice Department for taking action against North Carolina, calling HB2 “a discriminatory and dangerous piece of legislation that violates federal civil rights law.”

“We commend Attorney General Lynch and the Justice Department for taking action to enforce the rule of law and protect the civil rights of all North Carolinians,” Human Rights Campaign President Chad Griffin said in a statement.

But Joseph Backholm, executive director of the Family Policy Institute of Washington, said the Justice Department’s actions are “the best example of government overreach in the history of government overreach.”

“These changes to the Civil Rights Laws that the Obama administration is pushing have been proposed and rejected in Congress for years,” Mr. Backholm said in a statement. “The Executive Branch does not have the authority to change the Civil Rights Act of 1964 on its own.”

The attempt to interpret Title IX as applying to “gender identity” stems from a 2014 letter from the Department of Education, telling schools that discrimination against transgender students is impermissible under the statute.

Although courts have split on the issue, the most recent decision, handed down by the 4th U.S. Circuit Court of Appeals last month, sided in favor of a transgender student in Virginia who said his high school discriminated against him by refusing to let him use the restroom of the opposite sex.

The school built several single-stall, private restrooms for students uncomfortable with sex-segregated restrooms to use, but the 4th Circuit said such accommodations were tantamount to the “separate but equal” ethos of segregation.

Travis Weber, director of the Center for Religious Liberty and the Family Research Council, said that ruling was based on the Justice Department’s own interpretation of the law. By writing, enforcing and interpreting legislation, Mr. Webber said, the agency has “unilaterally hijacked” the law.

“I think it’s kind of a joke that they’re claiming, ‘Look at what the law provides,’ but when you look at the legal argument, it’s based on their letter, their interpretation of the law,” Mr. Webber said.

The federal government became ensnared in the debate over the North Carolina law Friday, when the Justice Department sent an ultimatum to Mr. McCrory, threatening to pull federal funding from the state’s schools if the law was not repealed by Monday.

In its lawsuit, North Carolina asked a federal court for an injunction against the ultimatum, saying the timetable allowed by the agency was insufficient.

North Carolina’s legislative leaders said in the state’s lawsuit that allowing “anyone to use any public bathroom, locker room or shower based solely on that person’s self-declared gender ‘identity’” would “create an opportunity for sexual predators of any sexual orientation to abuse the policy to facilitate their predation.”

At the press conference, Ms. Lynch would not rule out cutting federal education funding for North Carolina schools but said no plan to do so is imminent.

“We are deferring on requesting the curtailment of funding now, but we do retain that right,” she said. “It would be premature right now to give a date on when we will actually take that step.”

The state’s public universities get about $1.4 billion from Washington, and their students receive about $800 million in federally backed loans.

The White House similarly refused Monday to rule out the threat, with press secretary Josh Earnest calling the North Carolina law “mean-spirited.”

The loss of federal funding would significantly hinder Mr. McCrory’s chance of re-election in November because he faces a difficult race against Democratic attorney general Roy Cooper.

Equality NC Executive Director Chris Sgro on Monday said Mr. McCrory is risking “billions of dollars in federal funding to uphold a law that never should have been passed in the first place.”

But Mr. McCrory said his opposition of the Justice Department’s order concerns not just bathrooms in North Carolina, but also the federal government’s ability to influence state policy across the nation.

“This is no longer just a North Carolina issue,” the governor said on Fox News Sunday. “This is a basic change of norms that we’ve used for decades through the United States of America, and the Obama administration is now trying to change that norm. Again, not just in North Carolina, but they’re ordering this to every company in the United States of America.”

Reporters at Ms. Lynch’s press conference were cognizant of the Justice Department order’s wide-ranging consequences. If North Carolina cannot prohibit people from using restrooms of the opposite sex, then can any state? she was asked.

“To the extent that we’re made aware of them, and we know that there are a few of them out there, we are monitoring and reviewing those situations as well,” Ms. Lynch said.

Perhaps that prompted lawmakers in California to act Monday, as the Assembly passed a bill on a 52-18 vote requiring that single-person public restrooms be gender-neutral. But, if it wasn’t enough for the 4th Circuit, some wonder whether that would be enough for the Department of Justice.

• Bradford Richardson can be reached at brichardson@washingtontimes.com.

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