Department of Justice – North Carolina Duel Over Transgender Individuals’ Civil Rights.


By: Agne Krutules

On May 9, 2016, the Department of Justice (DOJ) filed a complaint against the State of North Carolina, the University of North Carolina (UNC) and the North Carolina Department of Public Safety (DPS) in the U.S. District Court in Greensboro, North Carolina.  The lawsuit seeks a preliminary injunction to block implementation of House Bill 2 (H.B.2), the North Carolina law passed in March, which requires that people using bathrooms, locker rooms and similar facilities in state and local buildings use the facilities corresponding to the gender listed on their birth certificates.  H.B.2 was prompted by the City of Charlotte’s adoption of an ordinance barring discrimination against gay or transgender individuals and specifically allowing them to use bathrooms and locker rooms that conform to their gender identity.   Thus, the measure also blocks localities from implementing anti-discrimination provisions for lesbian, gay, bisexual and transgender individuals.

The DOJ complaint claims that the North Carolina measure violates Title VII of the Civil Rights Act of 1964 (Title VII), prohibiting discrimination in the workplace, and Title IX (Title IX) of the Education Amendments of 1972, which prohibits discrimination based on gender in schools and school activities, and the Violence Against Women Reauthorization Act of 2013 (VAWA), which prohibits states receiving funding under that law from discriminating based on “sex” or “gender identity.”  The DOJ’s legal action amounts to a counter-suit to the one that Patrick L. McCrory, North Carolina’s Governor, filed earlier on Monday in the U.S. District Court in Raleigh, North Carolina, where he sought injunctive relief to block the DOJ’s demand that the State stop implementing H.B.2, and asked the court to declare that H.B.2 did not violate Title VII or VAWA.

In tandem, these cases create the potential for a future Supreme Court case interpreting whether federal civil rights law provide protections for transgender individuals. Although neither Title VII not Title XI explicitly include protections for transgender individuals and several Circuit Courts have held that Title VII does not outlaw discrimination against transgender persons, the Supreme Court has yet to rule on this issue.  Thus, the implications of such a decision will be significant and one that employers will need to continue to monitor.