News: CJ Exclusives

N.C. Republicans Condemn Federal Bathroom Edict

Republican members of Congress, the governor, state legislators, and education officials say the Obama administration's threat to pull funding from public schools over bathroom policy is an overreach.

Gov. Pat McCrory, General Assembly leadership, and Republican congressional members condemned the letter from Obama’s Departments of Education and Justice threatening local school districts with possible loss of federal funding if they don’t conform to federal rules regarding transgender students and school bathrooms.

McCrory said the federal edict affects “employees as well as every parent and child within a public school system. This national bathroom, locker room, and shower policy for almost every business, university and now K-12 school in our country changes generations of gender etiquette and privacy norms which parents, children, and employees have expected in the most personal and private settings of their everyday lives.”

He called on the federal courts and Congress “to stop this massive executive branch overreach, which clearly oversteps constitutional authority.”

The executive branch “does not have the authority to be the final arbiter” of the law, McCrory said.

Meanwhile, all 10 Republican members of Congress sent a letter to Secretary of Education John King requesting “immediate assurances that you are not directing or otherwise condoning any efforts of your agency to curtail funds designated for North Carolina based on a perceived violation of law that was passed by Congress.”

Lt. Gov. Dan Forest issued a statement reminding North Carolina public schools in receipt of the president’s letter that “there is a binding state law on the books governing bathroom policy, and the president’s non-binding directive is merely his attempt to push his version of a social policy on our state with no constitutional authority to do so. It should be rejected as a matter of principle and policy.”

He said North Carolina would not “stand by and let our locker rooms, and high school showers be used for social experimentation at the expense of the privacy and protection of our young boys and girls.”

State Board of Education Chairman Bill Cobey said there would be no board action compelling local school districts to comply with Thursday’s White House directive to allow transgender students in K-12 public schools and universities to use bathrooms and locker rooms of the gender with which they identify themselves even if it does not correspond to their biological anatomy.

“There’s really nothing we can do about it. We’re subject to state laws,” Cobey said of the federal demand letter. “Our governor has filed a lawsuit, our legislature has passed a law, so we’re going to comply with whatever the law addresses us to do.”

“President Obama seems to believe he is a monarch, ruling through edict like kings of old, instead of governing responsibly as one part of an accountable, carefully divided system of government. He can’t just create new laws based on how he’s feeling today,” said U.S. Rep. Robert Pittenger, a Republican representing the state’s Ninth District.

“Big picture, we need to reinforce the Constitution’s separation of powers, and I’m actively engaged with colleagues in exploring reasonable options to restrict the ability of the Executive Branch to bully a state or local government,” Pittenger said. “Our Founding Fathers gave us a system for changing or updating laws. It involves Congress, not royal decree.”

“I’m disappointed that this administration is doubling down on their efforts to go outside of their constitutional authority, and bully North Carolina. The law is clear, and executive agencies can’t simply rewrite or redefine it to push this administration’s radical social agenda,” said Congressman Richard Hudson, a Republican representing the Eighth District.

Yet Obama and and U.S. Attorney General Loretta Lynch issued Thursday’s letter anyway, saying that their departments interpret the word “sex” in federal Title VII, barring employment discrimination, and Title IX, barring discrimination based on sex at universities accepting federal funds, to include an individual’s perception of their “gender” regardless of biological reality. The Department of Education also released a document containing “emerging practices” to help school systems deal with transgender students.

A student’s parent or guardian may notify a school that a student’s gender identity has changed from previous records, and the school must begin treating that student according to that gender, according to the letter. No medical diagnosis or treatment requirement is necessary.

McCrory and the General Assembly filed suit Monday against the Justice Department for attempting to make the state open girls bathrooms, locker rooms, and showers to men, and vice versa. The Justice Department countersued hours later. Those actions stemmed from the state’s passage of House Bill 2, which struck down a local Charlotte ordinance allowing men to use women’s facilities.

The Obama administration announced Thursday that it was not going to halt federal funding to North Carolina as it had threatened, but just hours later disclosed it was sending out the nationwide compliance letter.

The UNC System has been threatened with $1.4 billion in loss of funding for not complying with HB2, and its Board of Governors met in special session Tuesday to hire legal representation for the matter.

“They’re nationalizing this issue now. It’s not just a North Carolina issue, it’s an issue for all states, and it will be interesting to see how the different states respond to this,” Cobey said. “It’s certainly an overreach, and it’s going to be played out in the courts even though it should be a matter of Congress and not the courts, but we live in different times.”

In the meantime, and amid the turmoil, “We’re trying to educate young people, and of course we don’t want any bullying and any discrimination going on out there in our schools, and there are state laws that address that,” Cobey said.

“Nothing has come to my attention” that there has ever been a problem or complaint in North Carolina public schools regarding transgender students, Cobey said.

He said he doesn’t believe the administration “is going to take money away for lunches for kids living in poverty,” or special education instruction. “These are the neediest children in our state, and in our society that benefit from these federal funds.”

Senate Leader Phil Berger, R-Rockingham, responded in a prepared statement: “The last time I checked, the United States is not ruled by a king who can bypass Congress and the courts, and force school-aged boys and girls to share the same bathrooms and locker rooms. This is an egregiously unconstitutional overreach of the president’s authority, and North Carolina’s public schools should follow state law, which protects our children’s safety and privacy,” Berger said.

House Speaker Tim Moore, R-Cleveland, was equally combative. “We all have to wonder what other threats to common sense norms may come before the sun sets on the Obama administration,” Moore said in a news release.

First District Democratic Congressman G.K. Butterfield, however, supported the sweeping federal mandate.

“I commend the Department of Education for putting the needs of students above playing politics. The department’s guidance is a much needed step to ensuring the transgender community’s voices are heard,” Butterfield said.

“Our public schools must serve as safe havens where students can grow and learn without worrying which facilities to use,” Butterfield said. “North Carolina’s HB2 is about much more than bathrooms, and it infringes on the rights of many more than just the LGBT community. This law is taking our state and country backward. … Discrimination has no place in our schools or society.”

Republican Fifth District U.S. Rep. Virginia Foxx, disagreed. “Today’s directive is yet another outrageous example of the Obama administration exceeding its constitutionally granted authority, and attempting to change law through executive fiat,” she said. “This action ignores the views of millions of students, parents, teachers, and administrators across the country. It is unacceptable and unlawful.”

Sixth District Republican Congressman Mark Walker said, “Gender identity is not included in the definition of sex discrimination as it relates to The Civil Rights Act, Title VII, and Title IX. Any confirmation or expansion of discrimination law should come from federal or state legislatures. The Obama administration is well beyond their authority; they are trying to unilaterally rewrite federal statute.”

The White House’s action “is certainly a radical move to demand that every school receiving public funding follow guidance based on DOJ’s preferred version of the law, rather than precedent or statute,” Walker said.

Like his GOP colleagues, Third District U.S. Rep. Walter Jones said this was “gross executive overreach” by the Obama administration. “Once again they are flouting the plain language of the law in order to force their radical agenda onto the American people. To use children as pawns in that effort is just wrong. Like I’ve said for decades, we need to get the federal government out of our local schools, period.”

Republican Congressman Mark Meadows, representing the 11th District, said the president’s overruling state and local bathroom safety policies is “federal overreach, this time by usurping local school boards and superintendents.”

Issuing the order only days after the federal government filed a lawsuit “calls into question the political independence of the Department of Justice, and shows a fundamental misunderstanding in this administration of the role of local governments,” Meadows said. “If the federal government can reach into the privacy of our bathrooms and locker rooms, is there anything that is truly off limits to their executive reach?”

As of this writing, Republicans U.S. Sens. Thom Tillis and Richard Burr, and Democratic U.S. Reps. David Price of the Fourth District, and Alma Adams of the 12th District, had not responded to requests for comment on the federal letter.

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.