“This regime would, among other things, force individuals using all manner of state property to share restrooms, showers and other such facilities with members of the opposite sex,” the lawyers wrote. “It would necessitate restructuring the operations of state educational institutions, including the manner in which funding is equitably allocated, athletic teams are organized, and student safety is ensured.”
They added: “It would require that correctional institutions be reevaluated to determine how they may comply with these new directives while simultaneously protecting the safety and security of inmates and state employees. And, it would compel state officials to follow a wholly uncharted course in preventing and remedying complaints of sexual harassment throughout state government’s day-to-day operations.”
The filing is the latest salvo in a legal showdown over whether North Carolina’s new rule — which bans transgender people from using bathrooms that don’t match the gender on their birth certificates and has become a focal point in a broader fight over transgender rights — violates civil rights law. Last month, the Justice Department and North Carolina announced dueling lawsuits over the bill, and the dispute is making its way through the federal court system.
Federal authorities alleged in their complaint that North Carolina’s bill violated Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, creating for transgender people “a sense that they are not worthy of equal treatment and respect.” The Justice Department wrote that enforcing North Carolina’s law would amount to discrimination on the basis of sex.
On Tuesday, lawyers for McCrory and the state of North Carolina filed their answer to the Justice Department’s complaint, raising several grounds on which they think the government’s lawsuit against them should be thrown out. They argued that North Carolina was protected from such suits by “sovereign immunity,” that gender identity was not a protected class under the laws the Justice Department cited, and that the Justice Department improperly defined the term “sex.” The Justice Department’s suit had said determining one’s sex required an assessment of “hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female,” and that gender identity was critical.
“For individuals who have aspects of their sex that are not in alignment, the person’s gender identity is the primary factor in terms of establishing that person’s sex,” Justice Department lawyers wrote. “External genitalia are, therefore, but one component of sex and not always determinative of a person’s sex.”
The battle is still making its way through U.S. District Court in North Carolina, though it seems destined for higher levels of the U.S. legal system. Earlier this week, a federal appeals court that sided with a transgender teen suing a Virginia school board over its policy banning him from the boy’s bathroom declined to rehear the case before a full panel of judges, and one judge indicated he would like to see the legal fight move quickly to the U.S. Supreme Court.