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The U.S. Just Threw Down the Hammer Over North Carolina’s Transgender Bathroom Law

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Updated: | Originally published: ;

The state of North Carolina has effectively been warned by the Department of Justice: Back down from banning transgender people from certain bathrooms or unpleasant things will ensue. The letter that Republican Gov. Pat McCrory received from the federal agency on Wednesday demanded a response by close of business on Monday. If he doesn’t do what the Justice Department asks, the state could be slapped with a lawsuit and potentially denied millions in federal funds. And while it’s unlikely, this could also be the beginning of a historic precedent being set.

At issue is HB2, a law that state legislators called a special session to pass in March, which mandates that state residents must use the public bathrooms that match their “biological sex,” defined as the sex on their birth certificate. Lawmakers crafted the measure in response to the state’s largest city, Charlotte, passing local LGBT non-discrimination protections that, among other things, affirmed the right of transgender men and women to use the bathrooms that match their gender identity.

In the letter, the Justice Department alleges that this law violates federal civil rights protections because discriminating against transgender people is a form of sex discrimination. The bulk of the letter concentrates on the treatment of state employees. And the argument is this: If the state allows “non-transgender” employees to use the sex-segregated bathrooms that align with their gender identity but denies that right to transgender employees, then the latter are not receiving full and equal access to bathrooms—and that’s sex discrimination. The letter demands that the state cease implementation of the law.

A Justice Department official told TIME on Wednesday that it hopes North Carolina will comply with federal law, but that the department is prepared to use tools at its disposal to compel the state to comply if necessary.

North Carolina House Speaker Tim Moore, a proponent of the law, said on Thursday that state lawmakers will not meet the deadline that the Department of Justice laid out. “We will take no action by Monday,” Moore told reporters, in remarks reported by the Charlotte Observer. “That deadline will come and go. We don’t ever want to lose any money, but we’re not going to get bullied by the Obama administration to take action prior to Monday’s date. That’s not how this works.”

The question of ‘sex discrimination’

The Department goes on to quote a 2015 ruling from the federal Equal Employment Opportunity Commission, which found that the Army discriminated against a transgender civilian employee in denying her access to the women’s room after she transitioned on the job. The EEOC said bathroom access is “a significant, basic condition of employment” under Title VII of the Civil Rights Act.

Several other rulings, including one in North Carolina’s own Fourth Circuit, have similarly found that denying transgender people such bathroom access is a form of sex discrimination. Under President Obama, the Department of Justice has repeatedly said that transgender people are protected by long-standing bans on sex discrimination, and the Department of Education has issued similar guidance. (Sexual orientation hasn’t found such robust protection under those bans, one of the few ways in which transgender Americans have made more legal progress than their lesbian, gay and bisexual peers.)

It isn’t that unusual for the Department of Justice to send out a warning shot like this, former government civil rights enforcers say. What is unusual is that there are no complicated questions about the facts in this case, no particular instances to be fleshed out. “According to the Department, the way this law is written, the only way it can be enforced is by discriminating,” says University of San Francisco law school dean John Trasviña, a former assistant secretary for fair housing and equal opportunity in the U.S. Department of Housing and Urban Development. “The vast majority [of such cases] always typically settle,” he adds. “But this is one where you can’t really compromise.”

So what happens next? The simplest outcome is that McCrory complies, finally caving to this last increase in pressure after already losing millions in economic activity as hundreds of businesses and public figures have come out against the law. “If the governor comes back and says ‘No,’ this letter means the Department is prepared to file a lawsuit,” says William Yeomans, an American University law professor who spent 26 years working on civil rights cases at the Justice Department.

If that lawsuit were filed in North Carolina, the state should be prepared to lose on the first go-round, given the precedent that’s already been set by the Fourth Circuit. Should both sides dig their heels in and appeal to the Supreme Court—and should the court take the case up—it could set a precedent that all courts must interpret laws banning sex discrimination as also banning unequal treatment based on gender identity. And that could give transgender rights advocates protections they have sought for decades. On the other hand, the Supreme Court could rule against that interpretation of the law, particularly if presumptive Republican presidential nominee Donald Trump wins the 2016 election and has the chance to install a fifth conservative on what is currently a split, eight-member court.

Photos: Meet Transgender America

Laverne Cox Laverne Cox grew up in Mobile, Ala., a town where she recalls everybody being in everybody else’s business. In third grade, after a teacher saw Cox flitting a handheld fan like Scarlett O’Hara, she called Cox’s mother with a message: your son is going to end up in New Orleans wearing a dress. That moment, Cox says, was “profoundly shaming.” Cox later attempted suicide in sixth grade. Her lonely youth started to change when she went to an arts academy for high school and then on to New York City, where she became an actor, landing a featured role in Netflix’s hit Orange Is the New Black. “I absolutely have a lot of work that I still have to do around shame, lingering shame from childhood,” she says. “It’s a struggle every day, to stay present, not to become that, you know, eight-year-old who was bullied and chased home from school.” Gillian Laub for TIME
Laverne Cox Laverne Cox poses for a portrait while on her way to an event in New York City.Gillian Laub for TIME
Paisley Currah Paisley Currah made the decision to transition after he had already become a tenured political science professor at the Brooklyn College, City University of New York. “It’s hard to get fired when you have tenure, but even in that situation I was nervous about it,” Currah says. It went relatively smoothly, much like his childhood in the “gender-free culture” of the 1970s, when there were fewer rules about how young ladies were expected to act. Like many other trans men, he says that his path, though trying, has been an easier one than those trans women have to walk. “The culture tends to assign more authority and gravitas to men,” says Currah, noting that he gets fewer late papers now than when he appeared female. “It makes me think a lot about the pervasiveness of sexism.” Gillian Laub for TIME
Jamie Ewing Jamie Ewing served in the Army and then the National Guard for five years—until November 2013, when she says she was discharged for being transgender. (The military does not allow trans people to serve openly.) Ewing is now working as a defense contractor, getting paid much more for similar work. “I would trade my current job in a heartbeat for the Army if it meant I could wear a uniform again," she says. “It's all about that sense of serving my country.” In her current role, she interacts with many of the same commanders she worked with while in uniform. "They know me. They know my work ethic and skill sets, and they have no issues,” the 28-year-old says. “I'm still the same person." Gillian Laub for TIME
Cassidy Lynn Campbell Cassidy Lynn Campbell learned at a young age that she identified as a girl. But she was ostracized by her peers when she showed up in middle school wearing long hair and girl jeans. After pretending to be gay through most of school, a decision she says instantly made her friends, Campbell finally came out as transgender at the beginning of her senior year. Her classmates in the conservative California town of Huntington Beach turned around and elected the 17-year-old homecoming queen. Her father, who still introduces her as his son Lance, hasn’t been so accepting. “I wish he could see me as what I want him to see me,” she says.Gillian Laub for TIME
Cassidy Lynn Campbell Cassidy Lynn Campbell poses with her friend Victoria Avalos, 18, who has also transitioned from male to female. Gillian Laub for TIME
Ashton Lee After coming out to his family at the beginning of sophomore year at Manteca High School, Lee started collecting signatures to support a California bill that would ensure his right to use the boys’ bathroom and play on boys’ sports teams at his school. The measure, the first of its kind in the U.S., was signed into law by Gov. Jerry Brown in 2013. “People used to shove me in the hallways and call me names,” he says. But that’s changed with the new law. “People have been standing down and backing off,” he says, “because they know they’ll get in trouble.”Gillian Laub for TIME
Rose Hayes Rose Hayes, a software engineering director at Google, quickly lost her wife of nearly 23 years when she came out a few years ago. But despite a painful divorce, she says her life is generally much happier. “There’s no comparison,” she says. “There are so few pictures of me smiling from before … and my ability to interact with people, I don’t have this veil in between me and them that used to be there.” Before identifying as transgender, Hayes went through phases of identifying as queer, bisexual and gay. She says that she isn’t a different person now than when she understood herself to be a male, just a more fully realized one. “Yes, my center of gravity moved from that tiny area it was trapped in, but that tiny area is still part of me.”Gillian Laub for TIME

The dollar bills

Right now, as one law professor puts it, “while this may not be the most welcoming letter, it is the beginning of a conversation,” one that could be over in weeks. But LGBT rights advocates are concentrating on a possible outcome much further down the line, pointing to this letter and saying that the state is at risk of losing millions, if not billions, in federal funding. Because civil rights violations can put federal funding at risk.

Toward the end of the letter, the Department of Justice notes that the feds have also interpreted this state law to violate the Violence Against Women Act and Title IX, which prohibits sex discrimination in education. By the ACLU’s calculation, that means that $4.5 billion in federal funds, particularly for things like schooling, could be denied to the state. Former agency officials, however, say that it is “extremely rare” for this “nuclear option” to be deployed. More often it is left unsaid or, occasionally, levied as a threat. “Nobody,” says University of Michigan law professor Samuel Bagenstos, “wants to inflict that kind of pain on the students.”

Even during desegregation, when many state officials were refusing to comply with federal rules, one can only find “the occasional withholding,” says Bagenstos, who previously served as the No. 2 official in the Justice Department’s Civil Rights Division. And the figures aren’t so clear cut either, he says. Each agency is in control of its own funds and some funds are indirect, like money that comes from the Department of Agriculture and pays for lunches in public schools. The Department of Justice cannot put Department of Education funds on the chopping block without the latter initiating the process, Bagenstos says.

University of San Francisco’s Trasviña believes that if the governor refuses to comply, “the outcome of this complaint letter will definitely go into the next administration.” It’s unlikely that a Democrat would roll back the Obama administration’s LGBT-inclusive interpretations of the law. And while Trump might win and install a conservative justice on the Supreme Court, the likelihood of him having his attorney general send an “actually, never mind about that” letter are smaller, former officials say. “If he wanted to change enforcement policy here, he would have the power to do it. It would be more problematic to interfere with an ongoing enforcement matter,” says American University’s Yeomans. “If things are already in the pipeline, it looks very political to pull the plug.”

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