As per the Department’s letter last week, the suit alleges that HB2 violates both Title VII (nondiscrimination in the workplace) and Title IX (nondiscrimination in education), as well as the Violence Against Women Act, by requiring transgender people to use restrooms according to the gender assigned at birth. The protections afforded on behalf of “sex,” they argue, extends to transgender people.
The suit outlines how gender identity and sex intersect, noting that an individual’s sex “consists of multiple factors,” including “hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female.” The factors may not always be in alignment with each other, and when they aren’t, “the person’s gender identity is the primary factor in terms of establish that person’s sex.”
It also notes that while “there is not yet one definitive explanation for what determines gender identity,” research has shown that there are biological factors, “most notably sexual differentiation in the brain.” Regardless, “gender identity and transgender status are inextricably linked to one’s sex and are sex-related characteristics.”
McCrory claimed in his suit that HB2 does not treat transgender employees differently because “all state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”
It is this very provision that the Department explains is unlawful discrimination. By prohibiting trans people from using the restroom that matches their gender identity, “HB2 stigmatizes and singles out transgender employees,” and “results in their isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect.”
The Department’s suit names both the University of North Carolina and its Board of Governors as defendants because of the Title IX violations required by HB2. McCrory’s suit did not even address the Title IX violations, focusing only on state employees.
There are now a grand total of three lawsuits addressing HB2. Mere days after it passed, Lambda Legal and the ACLU of North Carolina filed a suit on behalf of three individuals, including two transgender men, who argue that the law requires discrimination against them. All three, whether considered separately or consolidated, will fall under the jurisdiction of the Fourth Circuit, which recently issued a decision in favor of a transgender student’s right to access the proper facilities at his school.
