By Michael Cork, Esq.
With that rhetorical flourish, North Carolina fired the opening judicial salvo in the transgender war. Plaintiffs, North Carolina Governor, Patrick L. McCrory, and Frank Perry, Secretary of the North Carolina Department of Public Safety, filed a Complaint for Declaratory Judgment in the United States District Court for the Eastern District of North Carolina, Western Division. North Carolina sued the United States, the U.S. Department of Justice, the U.S. Attorney General, Loretta E. Lynch, and her Principal Deputy Assistant Attorney General, Vanita Gupta. Suit was filed May 9, 2016. A copy of the complaint is available upon request.
The dispute arose from North Carolina's March 23, 2016 legislation known as the Public Facilities Privacy and Security Act. That law requires public agencies to limit the use of multiple occupancy bathroom or changing facilities based on employees' biological sex. The DOJ demands that employees be allowed to use the facility coinciding with their gender identity, regardless of biology. North Carolina claims the DOJ's interpretation prevents the state from protecting employee bodily privacy rights—while accommodating transgendered state employees. North Carolina's preemptive action was prefaced by the DOJ's May 4, 2016 demand letters threatening legal action. The DOJ contends that North Carolina has a pattern and practice of discrimination against transgender employees, but the state claims no such complaints exist.
North Carolina cites federal cases from multiple jurisdictions, all refusing "to expand Title VII protections to transgender status absent Congressional action." The state maintains that Title VII permits gender-specific employment regulations and does not prohibit state employers from balancing the special circumstances transgender employees pose with non-transgender employees' bodily privacy rights.
North Carolina seeks a judicial declaration that its law regarding bathroom and changing facility use by state employees does not violate federal law. It comes on the heels of the 4th Circuit Court of Appeals' holding in favor of a transgender male high school student in Virginia. There, the 4th Circuit ruled that another statute, Title IX of the Education Amendments of 1972, required the school to allow the student to use the bathroom or locker room of his choice. North Carolina also resides in the 4th Circuit.