North Carolina attorney general won’t defend transgender law: It’s a ‘national embarrassment’

One day after civil liberties groups filed suit to fight a controversial “bathroom bill” in North Carolina that they say discriminates against the LGBT community, state Attorney General Roy Cooper announced that he would not defend its constitutionality.

“We should not even be here today, but we are. We’re here because the governor has signed statewide legislation that puts discrimination into the law,” Cooper told reporters in Raleigh Tuesday.

According to Cooper, House Bill 2 (HB2) is in direct conflict with nondiscrimination policies at North Carolina’s justice department and treasurer’s office, as well as many of the state’s businesses. Though the LGBT community is targeted, he said, it could ultimately result in the discrimination of other groups as well.

“House Bill 2 is unconstitutional,” he said. “Therefore, our office will not represent the defendants in this lawsuit, nor future lawsuits involving the constitutionality of House Bill 2.”

Cooper called the new law a “national embarrassment” that will hurt North Carolina’s economy if not repealed. And there are already signs that he might be right.

San Francisco Mayor Ed Lee banned nonessential publicly funded travel there in a show of opposition to the law on Friday. New York Gov. Andrew Cuomo and Seattle Mayor Ed Murray followed suit on Monday.


North Carolina Attorney General Roy Cooper speaks at a news conference in his state offices in Raleigh, N.C., on Tuesday. (Photo: Harry Lynch/The News & Observer via AP)

“In New York, we believe that all people — regardless of their gender identity or sexual orientation — deserve the same rights and protections under the law,” Cuomo said in a statement. “From Stonewall to marriage equality, our state has been a beacon of hope and equality for the LGBT community, and we will not stand idly by as misguided legislation replicates the discrimination of the past.”

Cuomo, a Democrat, said his ban on travel to the Tar Heel State would last “as long as there is a law in North Carolina that creates the grounds for discrimination against LGBT people.”

In its most literal application, House Bill 2 requires people to use only bathrooms reserved for their biological sex, which the bill defines as “the physical condition of being male or female, which is stated on a person’s birth certificate.”

But the reach of this bill, which goes into effect on Friday, will go far beyond bathrooms: It also prohibits local governments from passing new ordinances that would ban discrimination against specific groups.

North Carolina lawmakers approved the bill last week in reaction to a February ordinance by the Charlotte City Council. That ordinance would have outlawed discriminating against gay and transgender people and affirmed that transgender people can use restrooms that match their gender identities.

Supporters of HB2 argued that the ordinance would have allowed men to enter women’s restrooms, showers and locker rooms in public buildings — placing women in danger. Opponents of HB2 argued that the lawmakers were playing on fears to legalize discrimination.


New York Gov. Andrew Cuomo leaves a minimum wage rally in Albany, N.Y., on March 15. (Photo: Mike Groll/AP)

“Charlotte had chosen to be a fair and welcoming city, to express its values in a local ordinance,” Tara Borelli, the senior attorney at Lambda Legal, said in an interview with Yahoo News. “And HB2 really runs roughshod over those values by passing this outrageous law. It really tarnishes the reputation of the state.”

The North Carolina Family Policy Council, a socially conservative nonprofit supporting HB2, argues that the council’s “radical and hazardous” ordinance undercuts the privacy, safety and dignity of women, children and the elderly.

“This is an appalling and inexcusable effort to supersede common sense laws in North Carolina and replace them with radical policies that are clearly out of touch with the values of the majority of North Carolinians,” organization president John L. Rustin said in a statement. “It is particularly disturbing that those who oppose HB 2 continue to misrepresent the law in outlandish ways and seek to put the safety of women, children, elderly, and others at risk to accommodate the desires of a few!”

Ross Murray, GLAAD’s programs director for the South, said the pro-HB2 arguments are based on “outdated and frankly horrific stereotypes” about transgender women as sexual predators and distract from the necessity of nondiscrimination ordinances to protect an already vulnerable population.

“Bills like this always get boiled down to talking about bathrooms, but it’s really important to understand that we are also talking about nondiscrimination in terms of employment and in terms of housing and being able to let people live their everyday lives,” Murray said to Yahoo News.

House Bill 2 is just one of many so-called bathroom bills in state legislatures throughout the United States. These include high-profile cases in Texas, Minnesota, Kansas and South Dakota.

LGBT rights groups have been fighting these bills, and North Carolina’s is no exception. On Monday, the American Civil Liberties Union, ACLU of North Carolina, Lambda Legal and Equality North Carolina filed a lawsuit hoping to overturn HB2.


People protest outside the North Carolina Executive Mansion in Raleigh, N.C., on March 24. (Photo: Emery P. Dalesio/AP)

The plaintiffs argue that the bill violates the Equal Protection and Due Process clauses of the 14th Amendment by discriminating on the basis of sex and sexual orientation and is therefore unconstitutional. They also say the bill violates Title IX because it discriminates based on sex.

“We were extraordinarily disappointed. There were clear statements on record by the governor and lawmakers, but we really hoped that reason and fairness would prevail. This law, it’s just a travesty,” Lambda Legal attorney Borelli said.

North Carolina Senate Leader Phil Berger and House Speaker Tim Moore, both Republicans, released a joint statement Monday in response to the lawsuit that accused the “far-left groups” behind the lawsuit of using the state as a pawn in their “extreme agenda.”

“This lawsuit takes this debate out of the hands of voters and instead attempts to argue with a straight face that there is a previously undiscovered ‘right’ in the U.S. Constitution for men to use women’s bathrooms and locker rooms — but we are confident the court will find the General Assembly acted properly in accordance with existing state and federal law,” the statement reads.

The lawsuit was filed against Republican North Carolina Gov. Pat McCrory, Attorney General Cooper and the University of North Carolina on behalf of transgender UNC employee Joaquín Carcano, transgender UNC student Payton McGarry and Angela Gilmore, a lesbian North Carolina Central University law professor.

A firestorm of outrage erupted on March 23 after McCrory signed the bill into law, accusing Charlotte’s mayor and city council of breaching basic privacy and etiquette by going far beyond their core responsibilities.

“The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte,” McCrory said in a statement. “This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play.”

Mike Meno, the communications director for the ACLU of North Carolina, said the “ugly and distorted rhetoric” of lawmakers to pass House Bill 2 is among the most harmful consequences of this controversy.


North Carolina Gov. Pat McCrory speaks at the Wake County Republican Party 2016 County Convention in Raleigh, N.C., on March 8. (Photo: Al Drago/CQ Roll Call)

“Transgender people face high rates of harassment and sometimes even assault in public accommodations. That is exactly what Charlotte’s ordinance was trying to protect people from,” Meno said to Yahoo News.

Sections 3.1 and 3.3 of House Bill 2 specifically protect people from discrimination based on race, religion, color, national origin, age, biological sex or handicap. In fact, “biological sex” is underlined in what was likely intended to distinguish it from gender identity.

Opponents of House Bill 2 say that the new law essentially legalizes discrimination against gay and transgender people.

“That’s something that flies in the face not only of American values but North Carolina’s values. And I think the outpouring of opposition from people across our state and across our country points to how out of step this extreme legislation is with our values,” Meno said.

In fact, on Monday, the LGBT community got other signs that the tide may be slowly turning in its favor. White House Press Secretary Josh Earnest condemned HB2 as “mean-spirited.” And Republican Georgia Gov. Nathan Deal announced that he intends to veto a “religious liberty” bill that protects opponents of same-sex marriage, saying, “I do not think that we have to discriminate against anyone to protect the faith-based community in Georgia.”

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