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In March, North Carolina Gov. Pat McCrory signed the state’s so-called transgender law, officially known as HB2. The act bans individuals from using public bathrooms that do not correspond to their biological sex. Its passage unleashed a flurry of criticism, including from the Obama administration who says it’s a violation of Title VII of the Civil Rights Act. Yesterday, North Carolina announced they would sue the federal government, which prompted the Justice Department to say it would countersue. Guest host Susan Page discusses the events with Pat McCrory, Republican governor of North Carolina, and Carrie Johnson, justice correspondent at NPR.
MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. Yesterday, North Carolina Governor Pat McCrory announced he was suing the federal government over the state's so-called bathroom bill. In response, the U.S. Department of Justice announced it would countersue. The issue behind the dueling lawsuits is a new North Carolina law that bans transgender people from using bathrooms that don't match the gender on their birth certificates.
MS. SUSAN PAGETo help us understand the escalation between the government and the state of North Carolina, I'm joined here in the studio by Carrie Johnson, justice correspondent for NPR. Welcome to "The Diane Rehm Show."
MS. CARRIE JOHNSONHappy to be here, Susan.
PAGEBut first, we're joined by phone by the North Carolina governor, Pat McCrory speaking to us from Raleigh, North Carolina. Governor, thanks so much for being with us.
GOV. PAT MCCRORYThank you very much. The one thing I do want to clarify, this so-called bathroom rule only applies to government buildings, highway rest stops, public schools and our universities and that's all it applies to. In fact, if anything, we overturned a local ordinance which was a bathroom rules for all people in the private sector and we didn't want to be -- we have no interest in being the bathroom police in anyone in the private sector. In fact, we never even brought up this issue until it was brought up in Houston, Texas, and then in Charlotte, North Carolina by the political left.
GOV. PAT MCCRORYSo I just want to clarify that, that we're only talking about government buildings regarding this area.
PAGEGovernor, thank you for providing us with that clarification. Now, we know that the justice department had sent you a letter, giving you a deadline of yesterday to rescind the law, saying it was -- it violated the civil rights act. It was unexpected, though, that you countered yesterday by saying you were suing the justice department. Tell us why you decided to do that.
MCCRORYWell, first of all, they only gave us three working days when we got this letter out of the blue with no warning whatsoever. They gave us three working days. They gave it to us late Wednesday and they gave us Thursday, Friday and the decision by Monday. We actually asked for an extension from the justice department along with our university system. We asked for a two week extension. They came back and said, we'll give you one week extension if the governor admits that their laws are discriminatory based upon the justice department interpretation of U.S. federal law.
MCCRORYAnd what we're basically asking for is clarification from the courts. That's why we're taking it -- it's not really a matter of suing. It's asking the courts which are responsible for interpreting the law is to interpret the U.S. federal law on what is the classification of the term "sex," and right now, the Obama administration is saying not only is it also sexual orientation, but it's also gender identity and also gender expression is within their definition.
MCCRORYAnd those definitions have never been around, to my knowledge, up until just the last year or two within the civil justice department. I also think the U.S. Congress has got to step up. It's crazy the way the nation is right now. We have nondiscrimination laws different in every state and every town and every city in the United States of America. And I actually think the federal government needs to clarify. We're one nation and we should have one common nondiscrimination law for everybody and I think U.S. Congress needs to step up and clarify what the new laws are, especially concerning the new rulings of the Supreme Court regarding gay marriage, which has changed the whole dynamics of everything.
MCCRORYBut now, the concept of gay or, I'm sorry, gender identity and gender expression are terms that have never been defined except recently by the civil rights division of the -- an EEOC portion. This, by the way, will imply -- this will apply now to every employer in the United States of America with over 15 employees so their ruling is not just an North Carolina issue. This is now a ruling where they're even saying reasonable accommodators for, for example, transgender people or gender identification issues is not acceptable, that that's discriminatory.
MCCRORYThey should be able to use any multipurpose restroom, locker room or shower facility. And, you know, that's a pretty big change in the norms of our society, especially in our public schools, elementary, junior high, high school and even in our universities. So we're asking for clarification.
PAGEYou know, governor, you, obviously, feel pretty impassioned about this issue. We also heard some passionate words from the attorney general, Loretta Lynch, yesterday. She described this as a debate that should be context of black civil rights. She likened it to Jim Crow laws that followed the Emancipation Proclamation. Does that seem like a fair comparison to you?
MCCRORYAbsolutely not. In fact, I'm sitting here with my chief of staff, who grew up in Durham and his father was a civil rights pioneer, and we were watching that together and he just went, don't go there. There is absolutely no correlation between that struggle and -- and this is a basic struggle and very narrowly defined over restrooms, locker rooms and showers, which is -- we do not know the identity. We need to figure out what is the national definition of gender identity and gender expression.
MCCRORYIf you went and asked anyone on the street, they don't know it and I'm just asking as a governor what is the federal definition and I'm asking -- I'm going to be writing a letter to Congress, going Congress needs to have -- we don't need to have different nondiscrimination laws in every state, in every town in the United States of America. We need -- we're one nation regarding nondiscrimination and I don't believe we should have discrimination of any kind. But we are now also -- we have a conflict between privacy and discrimination because there is an expectation of privacy for many citizens when they go into a multi-use or a locker room or shower facility.
MCCRORYThey assume the only other people walking in are those people of their gender and that's been the expectations for a long time and I think that's the real dispute that needs to get resolved. And I'm actually -- I'm asking for that resolve and when the courts or Congress decides, I will follow that law as I'm sworn to uphold the Constitution.
PAGEGovernor, of course, the University of North Carolina system was also part -- also received a letter from the justice department last week about this issue. But my understanding is that Margaret Spellings, someone -- a very familiar figure here in Washington did not join in the press conference you did yesterday. Does the university system disagree with what you're doing on this issue?
MCCRORYWell, first of all, there are two different lawsuits. One is related to Title VII, which is employment discrimination, which is what they're charging me with because they're saying employees of the state of North Carolina are being discriminated against regarding gender identity for not being able to access to a shower, locker room or a restroom facility of their choice, based upon the gender they think they are, not the gender of their biology -- biological sex. And the charge against the university system is Title IX, which is totally different and I did not talk about Title IX.
MCCRORYI'm not being related to that. But I think Margaret will be and her board of governors will be responding today or tomorrow. They're having a board of governors meeting. They only gave them until yesterday, too, and by state law, she can't meet with her board of governors without notice. And so this is -- I think the justice department is being extremely unreasonable and we should've had discussions and thought, but frankly, it's not the executive branch's decision to interpret law.
MCCRORYThat's what the courts do and then, I think, the Congress needs to start making some laws and clarifying the 1964 civil rights act and maybe even updating it during this debate.
PAGEGovernor, we're almost out of time. Just one last question. Some people say this is a solution in search of a problem, the issue of transgender people using public bathrooms hasn't been something that's caused a lot of controversy or difficulty. How would you respond to that?
MCCRORYI would agree, 100 percent. We never had this issue. It was the political left that first brought this issue up in Houston, Texas, just six months ago and the voters defeated a similar ordinance by 61 percent of the vote in Houston, Texas, which is a fairly liberal town with a gay Democratic mayor. And no one raised any Cain. The justice department didn't sue Houston, Texas, or the NCAA didn't boycott it. This was never an issue for me. I never heard of this issue until five months ago. This issue is being brought up by the political left and now the justice department.
MCCRORYAnd it was brought then to Charlotte, North Carolina, where they had a mandate -- they passed a mandate for all private sector employees to recognize gender identity and gender expression for bathroom, locker rooms and other facilities. So we -- I was mayor of Charlotte for 14 years. This issue was never an issue. It was never an issue in a governor's race and now I'm having to talk to national publications. It's quite amazing. So this actually was initiated by the political left, not the political right.
MCCRORYAnd believe me, I've called out the political right on some social issues, too, but this is the political left that has made this a national cause for transgender rights regarding bathroom, locker room and changing room facilities. So that’s something that's not been represented well in the national media.
PAGEIt could cost the state a lot. It could cost you billions of dollars in federal aid. It's cost you in tourism. You've had some business investments as well.
MCCRORYWell, we don't think it's going to cost -- the federal government, sadly, is using money as a -- the Obama administration is threatening us with state funds, but, you know, now it's not just a state issue, but it's a national issue and I'm sure the courts would stop that. This needs to be clarified not by the executive branch, but by the judicial branch and then, sooner or later, again, the U.S. Congress has got to quit avoiding this issue and confront it so we have one nondiscrimination law for the entire nation and not separate -- we're almost, you know, we're having states boycotting states and cities boycotting cities based upon this issue.
MCCRORYAnd that's -- we should be one nation regarding good, strong, nondiscrimination policy, but we also have to respect privacy and this is a privacy issue regarding the most private areas of our life, and that's a restroom, locker room and shower facility and it's a gray area that we need clarification on and it's caused a lot of dissention on all sides on this issue for families and men and women and boys and girls. And there's a lawsuit in Virginia on this right now regarding a person with gender identity issues for a high school or junior high student regarding what restroom to use.
MCCRORYSo this is a new issue that needs to be resolved and I hope we get it resolved and move on.
PAGEGovernor McCrory, thank you so much for joining us on "The Diane Rehm Show."
MCCRORYThank you very much. I appreciate it. Give my best to Diane, too.
PAGEThis is -- that was the North Carolina Governor Pat McCrory definitely on the hot seat in this issue. When we come back after a short break, we'll talk to NPR correspondent Carrie Johnson for her view of what's going on here and what we just heard. We hope you'll stay with us.
PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And in just a minute we're going to talk about some of these critical Senate races in 2016 and the impact that Donald Trump may have at the top of the ticket for some Republican candidates. First, we want to talk to Carrie Johnson, NPR's justice correspondent about what we just heard from the Governor of North Carolina, Pat McCrory, about the state's confrontation with the federal government. Carrie, thanks for being with us. So what did you think of what you heard from the governor?
JOHNSONSo Governor McCrory cast of those Justice Department interpretation of civil rights laws as being radical, as being an overreach, as taking authority that is really Congress' authority to decide. But if you talk to Justice Department lawyers and the head of the Civil Rights Division, they'll tell you that this is another step in a long process. That, in their view, the 1964 Civil Rights Act contemplates protections for transgender people under the sex discrimination clauses, under gender identity. And, in fact, dating back to late 2014, then Attorney General Eric Holder sent a memo to all the prosecutors in the federal government saying this is our interpretation of the law.
JOHNSONMoreover, toward the end of his remarks, Governor McCrory referenced a lawsuit in Virginia going on now involving a transgender high school student. What he didn't say is that the Appeals Court, just two weeks ago, allowed that transgender high school student's lawsuit -- discrimination lawsuit to proceed. The Appeals Court hearing that case also covers the state of North Carolina, which is the precedent the Justice Department is likely to use in this legal battle with the state now.
PAGEDo you think it is likely that North Carolina will lose this case in court, given the precedent you just mentioned?
JOHNSONIt is hard to say what an individual lower court federal judge will do, Susan. But it's worth noting that over the last seven years, President Obama has been able to turn the tide, the balance of the Fourth Circuit Court of Appeals, which is the ultimate court that will decide this case. And that court is now a majority of Obama and Clinton appointees. And barring any decision from the Supreme Court, that's the court that's going to make this decision.
PAGEYeah. Another sign of how elections matter. What about the court of public opinion? When you talk to the American people, when there's polling -- national polling, does -- do people -- do Americans tend to see this as a civil rights issue? Or do they see it as a privacy issue, as the governor said?
JOHNSONTo be sure, the people and their positions on LGBT issues have changed rapidly. In the last 10 years or so, we've had the Supreme Court, in essence, grant a right to same-sex marriage. And this issue of transgender protections is still new. That said, people in the historical Civil Rights Movement, starting with the Attorney General, Loretta Lynch, who talks about going to civil rights rallies in Greensboro, N.C., as a toddler on the shoulders of her father, who was a Baptist preacher, people like that cast the fight for LGBT rights as the latest step in this arc toward justice. They view this as a straight line or maybe a curved line that encompasses the right for racial equality and now the fight for equality based on gender identity.
JOHNSONAnd courts are going to have to decide that issue. But younger people, historically, in this country have had less of a problem with that than older people. And of course it's a younger country than it was.
PAGEYeah. A big divide there on age. One last question. I'm interested that Margaret Spellings, who was once the education secretary in the George W. Bush administration, now head of the University of North Carolina university system, meets today with her board. Is it possible they will split with the approach that the governor has taken on this?
JOHNSONIt is possible. We're going to have to wait and see what that board comes out and says. But the Justice Department and Attorney General Loretta Lynch say, we are not at this point asking to yank $4 billion in federal education funds from the state of North Carolina, because we've been having productive conversations with Margaret Spellings. We want that process to continue. Justice reserves the right to try to seize those monies. But at this point, there is the possibility of a compromise here.
PAGEAll right. Carrie Johnson, justice correspondent for NPR. Thanks so much for joining us.
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