RALEIGH — In what is evolving into a war of words and political philosophies, Gov. Pat McCrory said he would pursue what Attorney General Roy Cooper would not — formal opposition to a Virginia transgender student’s lawsuit that could force North Carolina to allow both sexes to use the same K-12 public school bathrooms and locker rooms.
Cooper is running for the Democratic gubernatorial nomination against incumbent Republican McCrory, who will use his capacity as governor to sign on to South Carolina’s amicus, or friend-of-court, brief in the case of G.G. v. Gloucester County School Board, according to a news release issued late Tuesday afternoon by the governor’s office.
McCrory spokesman Josh Ellis said the governor would notify South Carolina Attorney General Alan Wilson of his intent to sign on to the amicus brief by a noon Wednesday deadline Wilson requested for responses. Wilson’s office said the brief could be filed in court next week.
Several states were invited to support the South Carolina document to enhance its impact.
“I would expect the final version would be more than just North Carolina signing on,” Ellis said.
Because South Carolina is the lead state and is writing the brief, North Carolina would not need to hire outside counsel to become a signatory, Ellis said.
He likened this situation to North Carolina’s previous engagement in a lawsuit by Texas challenging the Obama administration’s executive actions on immigration. Texas did the legal work; a coalition of states supported its cause.
“North Carolina parents deserve certainty about who is entering their children’s bathrooms and locker rooms at our public schools, and students must be confident that their privacy and well-being will be respected,” McCrory said in a written statement released late Tuesday afternoon.
“Transgender identity is a complex issue, and is best handled with reason and compassion at the local level instead of mandates being forced on the people by Washington and the Obama administration,” McCrory said.
“The Obama administration is threatening schools that resist with legal action and the loss of federal funding,” McCrory said. “As governor, I will protect North Carolina values from the imposition of extreme views from Washington.”
The governor requested Cooper as the state’s attorney to sign on to South Carolina’s amicus brief, but Cooper refused.
“Adolescence is hard enough without being bullied by an elected official. Next week, who knows who’ll be the target of a governor whose only path to re-election is dividing North Carolina,” Cooper campaign spokesman Jamal Little said in announcing Cooper’s decision.
Gavin Grimm, a girl who identifies herself as a transgender boy, sued the Gloucester County School Board because she was not allowed to use the boys’ facilities. The ACLU and Obama administration are supporting her.
The case is before the 4th U.S. Circuit Court of Appeals, which has jurisdiction over North Carolina. Should Grimm win, the ruling would be binding on North Carolina K-12 public schools, requiring access to sex-specific bathrooms and locker rooms be given to transgender students with a different birth anatomy.
“Gov. McCrory is right,” Senate Leader Phil Berger, R-Rockingham, said in a news release. “The concerns of transgender students can be easily accommodated without forcing children and teenagers to use shared, dual-sex locker rooms and bathrooms.
“This is political correctness run amok, and it’s a shame Roy Cooper is pandering to the political extremes of his base instead of putting student safety and common sense first,” Berger said.
“If the attorney general thinks forcing middle school-aged boys and girls to use the same locker room is going to create jobs for anyone other than his trial lawyer friends, he should explain how,” Berger said.
Bill Cobey, chairman of the State Board of Education, also sided with McCrory. He said his personal opinion is that suitable accommodations could be made for transgender students without empowering them to use bathrooms for students with different anatomy.
The issue has not come up with the state board, or, to his knowledge, with the state Department of Public Instruction, Cobey said. State Superintendent of Public Instruction June Atkinson did not respond to a request for an interview.
“The General Assembly may decide to weigh in, I don’t know. They may direct us to weigh in,” said Cobey. “Decisions like this are usually up to the local [school district] to deal with. … They have a great deal of autonomy.”
“Politically, this is better for McCrory than it is for Cooper,” said Chris Cooper, who chairs Western Carolina University’s political science department.
“I don’t have any polling on transgender people in bathrooms, but I think I could say with some confidence that North Carolinians in general would be opposed to this,” Cooper said. “Here McCrory is able to make an issue, and drive a wedge essentially, and say this is where I’m different than my Democratic opponent … It’s sort of agenda-setting in a lot of ways.”
He said McCrory and Cooper are “using their formal positions to spar at each other electorally,” which won’t make anyone feel better about government. “You definitely don’t look at this and say this is the way the process should work,” but since public opinion probably is more heavily in McCrory’s favor instead of evenly divided, voter dismay would be muted.
Joe Stewart, executive director of the North Carolina Free Enterprise Foundation, said polling consistently shows the 2016 governor’s race is likely to be decided by suburban swing voters.
“Ultimately, what matters most is which of the candidates comes up with issues, and messages, and a strategy to effectively reach those suburban swing voters,” Stewart said.
“I would be surprised if we don’t see a lot more of this kind of back and forth between Cooper and McCrory” on other issues as they try to diminish their opponent in the eyes of that important swing voter, Stewart said.
Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.
UPDATE: House Speaker Tim Moore, R-Cleveland, provided the following statement late Tueaday evening:
“I commend and support Governor McCrory’s decision to ask Attorney General Roy Cooper to join South Carolina on an amicus brief in a case that could force local school districts to open their sex-specific bathrooms to members of the opposite biological sex.
“This extreme position not only violates our children’s privacy, but also goes against all common sense. Private bathrooms have accomplished bringing security and confidence to children that identify differently than their biological sex, while also not infringing on the security of others.
“I join in calling upon our attorney general to put political pandering aside and place the best interests of North Carolina’s children first.”