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. 

Most Popular

U.S.

Baby Please Come Back, Says Andrew Cuomo

Then-mayor Mike Bloomberg famously described New York City in 2003 as a “luxury product,” and therefore priced accordingly. The price hasn’t changed, except to go up slightly — taxes, rents, everything. But few would argue that the product New York offers remains first-rate. The theaters are closed. The ... Read More
U.S.

Baby Please Come Back, Says Andrew Cuomo

Then-mayor Mike Bloomberg famously described New York City in 2003 as a “luxury product,” and therefore priced accordingly. The price hasn’t changed, except to go up slightly — taxes, rents, everything. But few would argue that the product New York offers remains first-rate. The theaters are closed. The ... Read More
The Economy

What’s an ‘American’ Car?

I’m not too sure about Dmitri’s ode to American cars, because I am not too sure what is an American car. In what sense should a Jeep Compass manufactured in Mexico be thought of as American while a Mercedes GLE made in Alabama isn’t? The answer cannot be corporate ownership: Both companies have ... Read More
The Economy

What’s an ‘American’ Car?

I’m not too sure about Dmitri’s ode to American cars, because I am not too sure what is an American car. In what sense should a Jeep Compass manufactured in Mexico be thought of as American while a Mercedes GLE made in Alabama isn’t? The answer cannot be corporate ownership: Both companies have ... Read More

William Tecumseh Sherman: A Warrior in Full

Statues of William Tecumseh Sherman stand throughout the country, including a striking gilded-bronze one by Augustus Saint-Gaudens outside Central Park in New York City. Reading a biography of Sherman in the context of the current spate of iconoclasm brings home how anyone looks immaculate on a pedestal, or to ... Read More

William Tecumseh Sherman: A Warrior in Full

Statues of William Tecumseh Sherman stand throughout the country, including a striking gilded-bronze one by Augustus Saint-Gaudens outside Central Park in New York City. Reading a biography of Sherman in the context of the current spate of iconoclasm brings home how anyone looks immaculate on a pedestal, or to ... Read More