News DOJ & North Carolina Sue Each Other Over LGBT Bathroom Law

The U.S. Department of Justice (DOJ) filed a lawsuit after the State of North Carolina filed one earlier concerning the constitutionality of HB 2, informally known as the LGBT bathroom law. The Public Facilities Privacy & Security Act (Session Law 2016-3 House Bill 2) requires that people use public restrooms corresponding to their biological sex as stated on their birth certificate.

The Difference Between Sex and Gender

Man-Woman-Wheelchair.jpg While many use the words "sex" and "gender" interchangeably, they actually have two distinct meanings. Gender refers to the sex which one personally identifies internally and socially - what they project to others. The Oxford English Dictionary defines gender as:

The state of being male or female (typically used with reference to social and cultural differences rather than biological ones)

Sex refers to the genetic and biological makeup of a person. A person who has male genitals and genes but who internally identifies with a female (and may outwardly present themselves as female) would be considered being of the male sex and female gender.

The Origin and Reasoning Behind the LGBT Bathroom Law

In February, the Charlotte City Council voted 7-4 to approve a non-discrimination ordinance which allows people to select a restroom based upon the gender with which they identify. Testimony included a transgender woman, born a man, who insisted that danger and violence would likely occur if she were to use a men's bathroom. In opposition, a woman expressed her concern for safety - fear of deviant men posing as women for the purpose of gaining access to exploit women (and who are more likely to be overpowered.)

Subsequently, the Public Facilities Privacy & Security Act was enacted and would prevent cities and municipalities from circumventing the desires of the State. The DOJ claims that House Bill 2 is a violation of the 1964 Civil Rights Act and "stigmatizes and singles out transgender employees, results in their isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect." North Carolina governor, Pat McCrory, asserts that people should not be taken for what they are not and that the bill is a safety measure. And since LGBT / transgender people are not considered a constitutionally "protected class" under the Title VII of the U.S. Constitution, the Obama administration is overreaching in attempting to strike down laws made by and within the powers of a State. Attorney General, Loretta Lynch, countered by calling the North Carolina bathroom law "state sponsored discrimination" against LGBT people.

Legal Issues Extend Beyond The Bathroom

The bathroom issue is a smaller one to opponents of the law. Their concern is primarily about the State using House Bill 2 to stifle efforts to expand protections afforded to others (such as LGBT people) by local governments such as Charlotte. Part III of the bill is also of concern, entitled "PROTECTION OF RIGHTS IN EMPLOYMENT AND PUBLIC 53 ACCOMMODATIONS." It specifically carves out protection for discrimination to sex, not gender, in stating:

It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, biological sex or handicap by employers which regularly employ 15 or more employees.

Part III also preempts and prevents any local law or ordinance which would conflict with the State's policies, which limits legal protections to sex and not gender. The effect is also a repeal of existing civil-rights ordinances, enacted to protect the LGBT community, making the entire issue a matter to be decided at the State level.
Legal Practice
Rights - Discrimination
  1. North Carolina
Court of Law
U.S. District Court
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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