Wednesday, May 4, 2016

Feds go after North Carolina on LGBT discrimination law

Posted By on Wed, May 4, 2016 at 3:17 PM

Big development: The federal Justice Department has told North Carolina that, if it chooses to comply with the state's new anti-LGBT law, it will be violating the U.S. Civil Rights Act and that could cost the state millions in federal funding.

The federal Civil Rights Act prohibits discrimination based on sex, which has been taken to mean gender identity. Said Justice, according to the Charlotte Observer:

“Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition or privilege of employment. Denying such access to transgender individuals, whose gender identity is different from the gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII …

“HB 2...is facially discriminatory against transgender employees on the basis of sex because it treats transgender employees, whose gender identity does not match their biological sex, as defined by HB2, differently from similarly situated non transgender employees…

Based upon the above, we have concluded that in violation of Title VII, the state is engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights byu employees of public agencies…

“Please advise the department, therefore, no later than the close of business on May 9, 2016, whether you will remedy these violations of Title VII including by confirming that the state will not comply with or implement HB2....

“We further inform you that that today the department sent letters addressed to the NC Department of Public Safety and the University of NC similarly notifying them of our conclusion that they have engaged in violations of Title VII as well as violations of Title IX.”

Arkansas hasn't explicitly gone after transgender bathroom users — yet. But it has legalized discrimination against LGBT people on the pretext of religion  and it has attempted to allow the state to block local ordinances that protect LGBT people. I'm still hopeful — though less so given the craven people elected to the Arkansas Supreme Court — that the law banning local non-discrimination policies won't pass constitutional muster. But you have to wonder: If the state overrides a city that attempts to protect people based on sex, isn't it violating the federal Civil Rights Act, too? One of the key defenses of local ordinances is that the state law prohibits local rules only for categories not already protected in law. Under federal and state law, sex is a protected class. And federal courts have interpreted that to include gender identity.

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