As soon as people realized that a new North Carolina law barred public colleges and other state agencies from letting transgender people use the bathrooms associated with their gender identities, critics of the law said it violated a federal statute, Title IX of the Education Amendments of 1972.
On Wednesday, the U.S. Justice Department backed that criticism and told the system president and board of the University of North Carolina that they were breaking the federal law by enforcing the state law.
A letter from the Justice Department gave UNC until the close of business on Monday to tell the agency that the university "has remedied these violations." Such demands are serious, as the government could seek to bar federal funds from UNC campuses over the issue, although that is not a step the government would be likely to take in the near term.
Margaret Spellings, president of the UNC system, issued a statement late Wednesday about the Justice Department letter: "We were notified this afternoon that the Civil Rights Division of the U.S. Department of Justice has determined the UNC system is in violation of federal nondiscrimination law as it relates to the N.C. Public Facilities Privacy and Security Act, commonly known as HB2. We take this determination seriously and will be conferring with the governor’s office, legislative leaders and counsel about next steps and will respond to the department by its May 9 deadline."
The letter to UNC came the same day that the Justice Department told Governor Pat McCrory, a Republican who backs the law, and legislative leaders that the law is illegal. State officials as well were given until Monday to respond.
It is not clear that Republican legislative leaders will agree to changes in or repeal of the state law. Tim Moore, speaker of the House of Representatives, told The Charlotte Observer that the Justice Department letter was “a huge overreach," adding that "it looks an awful lot like politics to me …. I guess President Obama, in his final months in office, has decided to take up this ultra-liberal agenda.”
The North Carolina law was introduced and passed quickly in March, with no public discussion until after the bill was signed into law. The bill has a number of provisions that limit the ability of local governments to bar discrimination against LGBT people.
But the provisions on bathrooms have set off immediate concerns for many in higher education. In North Carolina, many public and private colleges have declared some bathrooms gender neutral and have allowed transgender students and employees to use the bathrooms that reflect their identities, not their legal gender assigned at birth. The new law has already led to lawsuits against the state by university employees and decisions by some higher education groups to relocate events that had been scheduled for North Carolina to locations elsewhere. (Private colleges are not covered by the law, but many officials at those institutions have condemned it nonetheless and worried about its impact on recruiting students and faculty members.)
Spellings has made several statements about the new law -- and the Justice Department letter said that they were contradictory. For example, the letter noted that Spellings said on April 13 that the UNC system "will not tolerate any sort of harassing or discriminatory behavior on the basis of gender identity or sexual orientation."
But on April 5 and again on April 11, Spellings told campus chancellors that UNC "is bound to comply" with the law.
The law constitutes illegal discrimination, the letter said, and so does enforcing it. Under the law, the DOJ letter says, "non-transgender individuals at UNC and its constituent universities may access campus restrooms and changing facilities that are consistent with their gender identity, while transgender individuals may not."
The letter adds that UNC, in saying it will enforce the North Carolina law, also violates other federal statutes, which protect employees and apply to those receiving grants under the Violence Against Women Reauthorization Act of 2013.
Shane Windmeyer, executive director of Campus Pride, said via email that Spellings should reverse course now. "The UNC president should immediately stop enforcing the HB2 law and comply fully with the DOJ ruling," he said. "The UNC system should speak out loudly in agreement with this ruling and demand that the governor and the state Legislature fully repeal HB2."