By David French — May 9, 2016
U.S. Attorney General Loretta Lynch
The state of North Carolina and the federal government are now in a state of declared legal war. On Wednesday afternoon, the Obama administration sent a letter to North Carolina governor Pat McCrory demanding that the state “not comply with or enforce H.B. 2,” its so-called transgender bathroom law. According to the letter, a state requirement that people use the bathrooms reserved for their biological sex violates Title VII of the Civil Rights Act of 1964. The Department of Justice gave the state until today, May 9, to assure the federal government that men can use women’s restrooms and showers in state facilities.
Today, the state answered the Department of Justice — with a lawsuit. In its complaint, filed in federal court, North Carolina accuses the DOJ of engaging in a “baseless and blatant overreach,” an “attempt to rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the courts.” Simply put, Title VII does not establish “transgender status” as a protected class, and any effort to do so by executive fiat violates the law.
Then the DOJ escalated again. At an afternoon news conference, Attorney General Loretta Lynch announced a “significant law enforcement” action — its own lawsuit. At the same time, Lynch indicated that the DOJ retained the authority to federal funding to key state entities, issuing a not-so-veiled threat of dramatic action before the courts issue a definitive ruling. At the same time, she preposterously compared the act of preserving bathrooms for people of the same sex to, of course, “Jim Crow” and hearkened back to the days of segregated water fountains.
A public-relations battle over bathrooms and showers has transformed into a fight over the meaning and indeed authority of the Constitution itself. In its zeal to advance the sexual revolution, the Obama administration has defied the will of Congress, unilaterally rewritten federal law without even bothering to go through a statutory rulemaking process, and now seeks to bring a sovereign state to heel through a combination of threats and lawsuits.
Let’s make this simple. Title VII prohibits private and public employers (including state governments) from discriminating on the basis of “race, color, religion, sex, and national origin.” Title IX prohibits federally funded educational institutions from discriminating on the basis of “sex.” Neither statute prohibits sexual-orientation or gender-identity discrimination. For more than 20 years, LGBT activists have sought to amend federal law through the so-called Employment Non-Discrimination Act, a bill that would essentially add sexual orientation and gender identity as protected classes within federal nondiscrimination law. For more than 20 years, LGBT activists have failed. ENDA hasn’t passed even when Democrats controlled the presidency and both houses of Congress.
Rather than wait for the law to change, however, federal regulators and lawless federal judges have incrementally changed it by executive and judicial fiat, steadily expanding the scope of Title VII until July 2015, when the Equal Employment Opportunity Commission unilaterally amended the statute. In a document entitled “What You Should Know about EEOC and Enforcement Protections for LGBT Workers,” the Commission declared that it interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation” (boldface in original).
At a stroke, the EEOC decided that it was going to essentially enforce ENDA — a statute that doesn’t exist. Democracy wasn’t working fast enough for the Obama administration, so it decided to give authoritarianism a try.
North Carolina’s lawsuit represents a direct challenge to the notion that the EEOC can amend federal law merely by changing its “interpretation.” It also challenges the very idea that requiring people to use bathrooms that correspond with their biological sex represents sex discrimination. The Obama administration credulously buys the notion that a man in a dress or a man who has been surgically mutilated is now a “woman,” and it seeks to enforce that notion with the full power of the federal government. As I said before, quack science meets quack law, and the Constitution is the casualty.
The Obama administration is playing dangerous games with our constitutional republic. Unlike nullification crises in years past, this time the state government is leading the way in attempting to preserve the will of Congress and our nation’s system of checks and balances by defending federal law as written. The executive branch has gone rogue by amending federal law through unconstitutional action.
The administration is supplementing and buttressing its lawlessness with sheer bullying. Governor McCrory and the North Carolina legislature have shown admirable resolve. May they continue to stand firm. We’re way beyond bathrooms now.
— David French is an attorney and a staff writer at National Review.