Suit First, Ask Questions Later

Barb Wire

The Justice Department promised a lawsuit over the bathroom debate — and today, it got one! There’s just one twist: the federal government isn’t the plaintiff — North Carolina is! After mulling it over, Governor Pat McCrory (R-N.C.) decided to go on the offensive in the showdown with the Obama administration over the state’s Public Facilities Privacy & Security Act (H.B. 2).

Late last week, the DOJ tried to force the governor’s hand with its usual scare tactics: financial blackmail. This time, the agency vowed to pull the plug on the state’s federal funding unless it agreed to stop enforcing a popular law that passed overwhelmingly in the legislature. And, to add insult to injury, the government gave them less than a week to do it! Using a staple of the Left, the Obama administration is finding new meaning to the 1964 Civil Rights Act. The Justice Department is accusing North Carolina of engaging in “a pattern or practice of discrimination with its employees,” which it claims violates the 50-year-old Act’s Title VII. Legal experts like Ed Whelan and David Frenchwould have laughed at the suggestion if it weren’t such a serious controversy.

“Even on the assumption that Title VII prohibits discrimination on the basis of gender identity [which it doesn’t], H.B. 2 clearly does not discriminate on the basis of gender identity. Rather, it is the Obama administration’s position in favor of transgender access to bathrooms and showers that discriminates (explicitly so) on the basis of gender identity. The Obama administration’s confused conception of discrimination on the basis of gender identity collapses into incoherence, as its transgender illogic would disallow any system of single-sex facilities to survive, even the system of transgender-modified facilities that it favors. Neither of the two decisions that the DOJ letter cites supports its claim, and the analysis in the second decision — the recent Fourth Circuit ruling on transgender bathroom access — would defeat DOJ’s claim.”

Like the entire transgender bathroom debate, the Justice Department’s argument isn’t rooted in reality. Nothing in the 1964 law could even mildly be construed as a ban on biologically-based bathrooms. “It’s the federal government being a bully,” McCrory said matter-of-factly. “It’s making law.” Given the tight turnaround, the governor did ask for an extension of the deadline, which was today. Yesterday on “Fox News Sunday,” he explained how the government replied. “They gave the ninth largest state in the United States… three working days to respond to a pretty complex letter and to a pretty big threat,” McCrory said. “Well, we don’t think three working days is enough to respond to such a threat.” “Did they respond…?” Chris Wallace asked. “Yes,” McCrory replied. “They said, no, unless we will give you a one-week extension if the governor admits publicly that the ruling that their language regarding bathrooms does, in fact, discriminate. Well, I’m not going to publicly announce that something discriminates, which is agreeing with their letter because we’re really talking about a letter in which they’re trying to define gender identity. And there is no clear identification or definition of gender identity.”

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In a statement about the lawsuit today, the governor made it clear that he’s not just fighting for North Carolina — he’s fighting for every state. “The Obama administration is bypassing Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina. This is now a national issue that applies to every state, and it needs to be resolved at the federal level. They are now telling every government agency and every company that employs more than 15 people that men should be allowed to use a women’s locker room, restroom, or shower facility.” Like us, he’s also calling on Congress to bring some clarity to the debate. We applaud Governor McCrory for his political courage and moral clarity in resisting the overreach of the Obama administration. If the White House can dictate the policies of the bathrooms of America, is anything beyond its reach?

The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

Tony Perkins
Tony Perkins is president of the Washington, D.C.-based Family Research Council. He is a former member of the Louisiana legislature where he served for eight years, and he is recognized as a legislative pioneer for authoring measures like the nation’s first Covenant Marriage law. (Via FRC’s Washington Update. Tony Perkins’ Washington Update is written with the aid of FRC senior writers.)

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