RALEIGH — Gov. Pat McCrory has urged North Carolina Attorney General Roy Cooper to join South Carolina in filing a friend-of-the-court, or amicus, brief opposing the Obama administration and the ACLU in a lawsuit that could require North Carolina K-12 schools to open restrooms and locker rooms to transgender students of a different biological sex.
The Obama administration has issued a directive ordering school authorities in North Carolina and around the country to allow transgender students to use sex-specific bathrooms designed for students of the opposite sex, “and is threatening resistant schools with legal action and loss of federal funding,” McCrory said in a news release.
North Carolina-based advocacy organizations on both sides of the issue have weighed in on McCrory’s request, which could have electoral implications. Cooper is running for the Democratic nomination to challenge Republican McCrory’s re-election bid in 2016. A spokeswoman for the state Department of Public Instruction also suggested that the state may follow Obama’s directive.
“In order for the state to have the strongest possible legal position in defending its schools, you, as attorney general, should sign on to the amicus brief” by a Wednesday deadline, McCrory said in a Nov. 21 letter to Cooper.
“However, if you believe that President Obama’s federal directive is appropriate, I will sign on in my capacity as Governor of North Carolina to protect the autonomy of our local school districts,” McCrory wrote.
“Our office has received the request and is reviewing the brief,” Cooper spokeswoman Noelle Talley said, responding to a request for comment.
Mark Powell, spokesman for South Carolina Attorney General Alan Wilson, provided little information about the details of that state’s friend-of-the-court filing.
“Because our office is still preparing our amicus brief, it would be inappropriate to comment at this time,” Powell said.
It is unclear what legal document must be filed by Wednesday, and whether General Assembly leaders would consider hiring outside legal counsel to join in the lawsuit if Cooper opted out.
The governor’s office did not respond to calls and emails.
Amy Auth, spokeswoman for Senate Leader Phil Berger, R-Rockingham, said he and his general counsel were out of the office today, and Berger and his staff had not addressed McCrory’s request with Cooper.
House Speaker Tim Moore, R-Cleveland, did not respond to requests for comment.
Gavin Grimm, a Virginia girl who began identifying as a boy in 2014, is the plaintiff in the case, G.G. v. Gloucester County School Board. She used the boys’ facilities at Gloucester High School for seven weeks until a backlash developed.
The school designated a unisex bathroom for transgender students, and said Grimm also had the option of using the girls’ facilities.
Grimm, whose therapist says suffers from gender dysphoria — stress created by gender identity confusion — and is taking hormones to assume male characteristics, said not being allowed to use the boys’ bathroom would be stigmatizing and discriminatory.
The ACLU took on the case, saying the school’s designation violates the 14th Amendment and Title IX, a federal law prohibiting sex discrimination by schools that receive federal funds. A federal District Court judge threw out the case. It is now on appeal at the 4th U.S. Circuit Court of Appeals.
The Obama administration’s “extreme position directly contradicts the express language of federal law and threatens local control of our schools,” McCrory said. “It also disregards the safety and privacy concerns of parents and students.”
He said the “federal overreach is unacceptable and unnecessary,” and that if the 4th Circuit rules in Grimm’s favor, it “would be binding precedent on North Carolina federal courts. It would remove local districts’ flexibility and force the federal government’s extreme views on all of our schools.”
“This move is transparent and political. The governor’s language shows a politician pandering to a small minority of primary voters, and not a statesman leading the Old North State,” said Chris Sgro, executive director of Equality NC, a lobbying organization for the lesbian, gay, bisexual, and transgender community.
“Equality NC and our friends at ACLU will continue to stand up for trans students, and applauds the White House’s clear direction that trans students should be able to use the restroom that matches their identity,” Sgro said in a news release. “With youth bullying and suicide rates being a crisis in this nation, picking on kids as a way to win political points is never acceptable.”
Tami Fitzgerald, executive director of the NC Values Coalition, commended McCrory for his “commonsense approach to an issue that should be pretty clear, and that is that parents do not want to have their children exposed to members of the opposite sex either in the bathroom or the locker rooms in public schools.”
There is no right under state or federal law for students of the opposite sex to demand access to sex-specific bathrooms, Fitzgerald said.
She said the Obama administration has been “influenced by a vocal and abusive minority” in issuing its directive that schools allow transgender students to use bathrooms and locker rooms not consistent with their birth anatomy.
“It defies logic, it defies common sense, and it defies biology to do so,” Fitzgerald said. “It violates the privacy of all the boys to go to the bathrooms,” because many male bathrooms don’t have privacy dividers between urinals.
“The courts have said that people have a reasonable right of expectation to privacy in bathrooms and locker rooms,” Fitzgerald said.
Vanessa Jeter, spokeswoman for DPI, said the department had no statement regarding McCrory’s request of Cooper. She said local schools generally make decisions based on their own situations.
“Also, generally, we would use the federal Office of Civil Rights guidelines or policies to guide local policies,” she said.
Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.