North Carolina Governor Pat McCrory attacked the Obama Department of Justice as an overreaching bully in comments made to Fox News on Sunday, even suggesting that he would be justified in taking legal action against them. North Carolina filed the lawsuit Monday morning. McCrory denounced the DOJ’s ruling, saying that it essentially violates the Constitution by making law and setting a dangerous precedent.
Last Wednesday, the DOJ gave in to the demands of LGBT activists in attempting to strike down North Carolina’s House Bill 2, which reserves multiple-stall restrooms to either men or women. In a letter to McCrory, an official notified the governor that the bill violates the Civil Rights Act of 1964 by discriminating against transgender people. The department gave North Carolina until Monday to say it will not enforce the law, or lose millions — up to $4.5 billion — in federal education funding.
“This unrealistic deadline by the federal government is quite amazing,” McCrory told Fox News’s Chris Wallace. “We don’t think three working days is enough to respond to such a threat,” he added. “It’s the federal government being a bully, it’s making law.”
McCrory argued that the Justice Department has no authority to enforce this view of the Civil Rights Act, and is essentially making law by doing so. This could give him grounds for a lawsuit, should the DOJ carry out its threat. The North Carolina Republican Party has announced it will not reject the law, and McCrory’s comments show he has no legal authority to do so himself.
The governor told Wallace that he had asked for an extension until this coming Friday, but the Department of Justice denied it, unless “the governor admits publicly that [House Bill 2] does, in fact, discriminate.” McCrory declared, “I’m not going to publicly announce that,” because such a statement would be giving in to the DOJ’s interpretation of the bill.
H.B.2 was written to protect the privacy of the vast majority of biological men and women who prefer to use restrooms dedicated only to their biological sex. The law only applies to restrooms with multiple stalls, so single-stall restrooms and neutral “family” restrooms are still available (although perhaps not in as large a supply) for those who do not wish to use the restroom corresponding to their sex.
The Department of Justice argued that such a law violates the Civil Rights Act by discriminating “on the basis of sex,” but “transgender” is not a sex. “Sex” is the term for biological maleness or femaleness, not a person’s identifying with a gender. A male-to-female transgender person may identify as a woman, but that does not change the biological fact that she is male. The DNA in question will still have one “x” chromosome and one “y” chromosome.
McCrory pointed this out in his interview. “The federal law uses the term ‘sex,’ and Congress does not define sex as including gender identity,” he explained. “So right now the Justice Department is making law for the federal government as opposed to enforcing law.”
The governor laid out the two ways the federal government can determine that a bathroom policy like North Carolina’s violates national law. On the one hand, Congress can pass a law determining national bathroom policy and have the president sign it. On the other hand, the federal government could present a “dictate from a regulatory agency.” But the DOJ is not a regulatory agency — it’s a law enforcement agency. It cannot make law, no more than Governor McCrory himself can.
The other absurdity in this ruling is that the governor does not have the authority to comply with the DOJ’s dictate. “I don’t have the authority to change the law as governor of North Carolina,” McCrory explained, law “is made by the North Carolina legislature.”
The DOJ also sent a letter to North Carolina’s universities with the same deadline. This is also unrealistic because “our university, by state law, has to go to the Board of Governors which cannot meet until Tuesday.”
Next Page: Cultural overreach?
Beyond the many legal issues, McCrory also said this move represents a cultural overreach by the federal government. “This is a basic change of norms that we have used for decades,” he explained, “and the Obama administration is trying to change that norm.”
He further argued that liberals originally pushed for bathroom laws, and that he does not want government to get involved in the facilities of private companies. “We did not start this on the right, who started it was the political left,” McCrory said. In the case of North Carolina, it is true that the city of Charlotte passed a pro-transgender bill first, and H.B.2 was a response to it.
McCrory defended the law as a way to preserve the “expectation of privacy” in bathrooms and other facilities. He emphasized that the DOJ’s action makes this no longer a North Carolina issue, but a national one. “The federal government is going to tell almost every private sector company in the United States who can and who can’t come into their bathrooms, their restrooms, their shower facilities.”
He argued against enforcing one policy on all businesses with over 50 employees across the entire nation.
When pressed about the negative response to H.B.2 by companies like PayPal, McCrory pointed out the hypocrisy of businesses which condemn a common sense bathroom bill while doing business in countries which execute homosexuals. “This is the same PayPal that did business in Sudan, that did business in Iran, does business in Saudi Arabia,” the governor declared. He called such a hypocritical response “selective outrage.”
The deadline looms — McCrory said he understands he has until 5 p.m. on Monday. Before the Department of Justice could carry out its threat, North Carolina has issued the lawsuit. Taking the first shot was likely a good decision, as it gives McCrory the upper hand in negotiations. One thing is for certain: the state is in for a tough few months going forward.