Bench Memos

Law & the Courts

Obama Administration’s Outrageous War on North Carolina—Part 6 (Some General Observations)

See Parts 1, 2, 3, 4, and 5

Some observations to wrap things up, at least for now:

1. The Obama administration’s claim, in its threatening letter to North Carolina governor Pat McCrory, that the state’s H.B. 2 violates Title VII is utterly baseless.

Even on the assumption that Title VII prohibits discrimination on the basis of gender identity, 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.

2. It should be no surprise that H.B. 2 does not violate Title VII, for, wild myths and propagandizing aside, all that H.B. 2 does is codify, for North Carolina’s public schools and government buildings, the basic rules of bathroom and shower access that have long existed for multiple-occupancy facilities. It allows schools and agencies to provide single-occupancy facilities available to anyone, And it leaves private businesses free to adopt their own rules.

3. It is appalling that the Obama administration does not have the courage to attempt to pursue its bizarre and radical transgender agenda through the democratic processes and that it is instead pursuing it through bureaucratic bullying.

4. Don’t be fooled into thinking that this is only a war against North Carolina. Like any bully, the Obama administration is picking first on targets that it thinks are weak. But it is intent on imposing its agenda on restrooms and showers nationwide, and it’s counting on being able to intimidate everyone else into surrender. 

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