But the University of North Carolina is Not

Tim Burke, Manley Burke, tburke@manleyburke.com

At lightning speed for a legislative body, North Carolina’s legislature, in a one-day special session, adopted a state law (HB2) prohibiting transgender individuals from using any bathroom other than the one that conforms to their birth certificate.  The law was adopted in response to a City of Charlotte ordinance which provided protections to transgender individuals, allowing them to utilize the bathroom which conformed to their gender identity rather than the sex assigned to them at birth.  While much of the focus of the controversy over the bill has been around bathroom rights, opponents also argue that the new state law guts municipal ordinances designed to provide broader protections to LGBT individuals, and may also repeal protections against other minority groups.

But the focus of the national discussion the law has generated is on bathroom rights.  HB2 mandates that “public agencies shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex.”  Biological sex is defined in the law as “the physical condition of being male or female, which is stated on a person’s birth certificate.”

HB2 was adopted by the State Legislature and signed into law by the Governor in the space of 12 hours on March 23, 2016.

It did not take long for the United States Department of Justice to determine that the act was a violation of Title VII of the Civil Rights Act of 1964, as amended, and that the state was “engaging in a pattern or practice of discrimination against transgender state employees.”  That was the clear message in a May 4, 2016 letter to the Governor of North Carolina from Vanita Gupta, the Principal Deputy Assistant Attorney General writing on behalf of the Attorney General of the United States.

Of particular importance to those involved in higher education in the State of North Carolina was a separate letter from Principal Deputy Assistant Attorney General Gupta to the President of the University of North Carolina system and the Chairman of the University of North Carolina Board of Governors.  That five-page letter, also dated May 4, 2016, made clear Justice’s determination that the North Carolina law and the UNC system’s compliance with that law, placed UNC in violation of Title VII, Title IX and the Violence Against Women Act (VAWA).”

The letter points out that the Violence Against Women Act provides that “no person in the United States shall, on the basis of actual or perceived … sex, gender identity … be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the act.”  UNC had, according to the letter, signed assurances acknowledging that requirement and pledged its compliance with VAWA.

Similarly, UNC had committed in writing to comply with Title IX as a condition of receiving federal funds.  The U.S. Department of Education, Office of Civil Rights (OCR) had, according the letter, “issued Title IX guidance clarifying that all students, including transgender students, are protected from sex-based discrimination under Title IX and that Title IX’s prohibition on sex discrimination extends to discrimination based on gender identity.  As the Justice Department’s letter makes clear:

“Under the Department of Education’s interpretation of its regulations, where a school provides separate restrooms for men and women, barring a student from the restroom that corresponds to his or her gender identity because the student is transgender, constitutes unlawful sex discrimination in violation of Title IX.”

The letter points out that the 4^th Circuit United States Court of Appeals issued an opinion in G.G. v. Gloucester Cnty. Sch. Bd.,¹ regarding educational institutions’ obligations to transgender students under Title IX and, in particular, under an implementing regulation promulgated by the Department of Education governing acts as to restrooms and locker rooms, 34 C.F.R. Section 106.33.  In the Gloucester decision, the 4^th Circuit held that the Department of Education’s guidance that educational institutions “generally must treat transgender students consistent with their gender identity is entitled to “controlling weight”” under a prior decision by the same court.²

The letter goes on to point out that Title VII also prohibits an employer from discriminating against an individual on the basis of sex.  Gupta’s letter cites to several federal court decisions which agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity.³

It should be noted that both public and private colleges and universities receive large amounts of federal funds.  Deliberate and ongoing violations of Title VII, Title IX and VAWA can jeopardize those funds at both publics and privates alike.

The Justice Department’s letters imposed a Monday, May 9^th deadline for both the Governor and the President of the UNC system to respond.  Shortly before the deadline would have expired, the state of North Carolina and the Governor filed suit against the federal government, claiming that the Justice Department’s position was “a baseless and blatant overreach,” stemming from a “radical reinterpretation of the Civil Rights Act of 1964.”⁴

Attorney General Loretta Lynch responded by announcing that the Justice Department had filed its own suit against both the state of North Carolina and the University of North Carolina system, stating that HB2 “created state-sponsored discrimination against transgender individuals who simply seek to engage in the most private of functions in a place of safety and security.”⁵

The law generated widespread criticism.  Some artists cancelled concerts, at least one corporation cancelled plans to bring hundreds of new jobs to the state, and various groups have called for boycotts against the State of North Carolina.

But it is the impact on the higher education system of North Carolina which has the greatest potential to impact fraternities and sororities.

The clear position taken by the Justice Department will encourage those colleges and universities which have already adopted policies against discriminating against their students based on transgender or gender identity status (and hundreds have), to maintain those policies.   More schools will likely follow suit.

Time magazine’s cover story of June 9, 2014 calling transgender rights “America’s next civil rights frontier” has proven to be accurate.  Those who wish that a new federal administration might change this position ought to remember that rights once recognized are very difficult to repeal.

1. G.G. v. Gloucester Cnty. Sch. Bd., No. 15-2056, 2016 WL 1567467 (4^th Cir. Apr. 19, 2016).
2. Auer v. Robbins, 519 U.S. 452, 461 (1997), Gloucester, 2016 WL 1567467 at *11.
3. Glenn v. Brumby, 663 F.3d 1312, 1315-20 (11^th Cir. 2011); Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6^th Cir. 2005); Smith v. City of Salem, 378 F.3d 566, 572-75 (6^th Cir. 2004); Schroer v. Billington, 577 F.Supp.2d 293, 303-08 (D.D.C. 20080; Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995, at *4-11 (EEOC Apr. 20, 2012).
4. New York Times, May 10, 2016, “North Carolina and U.S. Duel on Access Law.”
5. Id.