While other Republican governors, such as Nathan Deal of Georgia, shrink from doing anything to annoy the federal government or mega-corporations, Governor Pat McCrory of North Carolina seems to be made of sterner stuff. The Obama administration’s Department of Justice demanded on May 4 that the N.C. state government drop its law (HB-2) reserving public restrooms for members of the designated biological sex. McCrory was given four days — including a weekend — to knuckle under.
The Governor’s response? We’ll see you in court.
On Monday (deadline day), McCrory filed a lawsuit in federal court in North Carolina challenging the Justice Department’s lawless attempt at intimidation. The clear message to an out-of-control Justice Department is that although the denizens of faculty lounges may see nothing wrong with men’s using restrooms and locker rooms with little girls, the vast majority of North Carolinians (and other Americans) still inhabit planet earth and will stand for common sense, decency, and reality.
The theory of the federal threat is that HB-2 constitutes illegal sex discrimination against North Carolina public employees under Title VII of the 1964 Civil Rights Act. But the North Carolina lawsuit points out that “the overwhelming weight of [legal] authority has refused to expand Title VII protections to transgender status absent Congressional action.”
There is no argument — none — that the members of Congress who voted for Title VII in 1964 thought they were passing a statute allowing men to use women’s restrooms just because they feel feminine. If the statute is to be used that way, it must be amended by Congress, not through policy decisions of federal bureaucrats. This is Obama’s “phone and pen” run amok.
And even if Title VII did cover transgender employees, the lawsuit argues, the statute allows reasonable accommodations, which the state intends to take. “Title VII does not prohibit employers, including state employers, from balancing the special circumstances posed by transgender employees with the right to bodily privacy held by non-transgender employees in the workplace,” the lawsuit states. It cites numerous cases in which courts allowed reasonable gender-specific regulations in the workplace.
The Justice Department’s threat also includes a nice Kafka-esque touch by claiming the North Carolina privacy bill violates the Violence Against Women Act (VAWA). The purpose of VAWA was to strengthen the legal response to crimes involving physical violence against women (in glorious irony, VAWA was signed by Bill Clinton). So now, by protecting women against violence that may occur when men invade private spaces such as restrooms and locker rooms, North Carolina is accused of participating in violence against women. Got that?
The North Carolina lawsuit also argues that complying with federal demands to open up restrooms to whoever wants to enter them “threaten[s] to expose plaintiffs to actual liability under Title VII, VAWA, and other provisions protecting the bodily privacy rights of employees in the workplace.” By catering to the preferences of a vanishingly tiny minority of employees, the Justice Department is trampling on the rights and genuine safety and privacy concerns of all the other employees.
Governor McCrory is thus asking for a declaratory judgment that HB-2 does not violate either Title VII or VAWA. In a sane world, he would get it by return mail. But that world seems to be long gone.
Thus unfolds another chapter in the Left’s war on reality. Reality is that (except in extraordinarily rare cases) human beings are either one sex or the other. Reality is that the vast majority of members of each sex do not want to engage in private functions in front of members of the opposite sex. Reality is that opening private spaces to men who think they are women will also open them to men who are simply predators.
Reality is that powerful people have lost their minds. Hurray for Governor McCrory.
Jane Robbins is an attorney and a senior fellow with the American Principles Project.