Behind North Carolina’s War With the Feds

A legal war erupted earlier this month between the US Justice Department and the North Carolina governor’s office over the state’s recently passed anti-LGBTQ law.

The law, officially House Bill 2 (HB 2), is often called the “bathroom bill” in the mainstream media, though the ban against trans people who wish to use the bathroom facility corresponding to the gender with which they self-identify is only one of the legislation’s reactionary provisions.

HB 2 was pushed through the Republican-majority state legislature in a late March special session — the first in 35 years — and immediately signed into law by Gov. Pat McCrory to counteract an anti-discrimination measure passed by the Charlotte City Council that made it illegal for businesses to discriminate on the basis of sexual orientation and gender identity.

Since then, HB 2 has been at the center of a national controversy over extending basic civil liberties to trans people. Not only has the federal government taken action, but multinational corporations have protested the North Carolina law and threatened to boycott the state unless the law is revoked.

A few hours before a May 9 deadline set by the Justice Department for North Carolina to abandon HB 2, McCrory filed a lawsuit against the Feds, accusing Attorney General Loretta Lynch and the Justice Department of “baseless and blatant overreach.” Lynch’s department responded hours later with its own suit accusing the state of civil rights violations.

McCrory and the state lawmakers who support HB 2 claim they want to protect women from sexual assault. However, cases of assault committed by transgender individuals in public bathrooms are nonexistent. In reality, the bill is aimed at upholding discrimination against transgender individuals, while also attacking the rights of all workers. As SocialistWorker.org reported in March:

The second part of the bill establishes the ‘Wage and Hour Act,’ and makes it illegal for any local government to impose on employers — including city or county contractors — any requirement on wages, hours, benefits, leave or child labor protection, beyond what the state legislature requires.

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The decision of McCrory and the state legislature to fight three legal battles — in addition to competing suits filed by the state and the Justice Department, North Carolina could lose $1.4 billion in federal funding provided to state schools if the Feds find that HB 2 violates federal Title IX laws — will, at the very least, cost taxpayers hundreds of thousands of dollars in legal expenses.

Losing Title IX funds could cost an estimated 10,000 jobs for teachers and teacher assistants at a time when there is already a shortage of educators in North Carolina. Meanwhile, the state has already refused to expand Medicaid through implementing the federal Affordable Care Act and slashed funding for public schools in the name of “fiscal conservatism.”

If the “threat” to women that the law claims to address is nonexistent, and it faces significant opposition, even among business, locally and nationally, why won’t McCrory just drop it? Even Fox News anchor Chris Wallace encouraged Pat McCrory to “let it go.”

Public statements last week from NC Chamber, the state’s largest business lobby, may provide some answers.

NC Chamber CEO Lee Ebert stated in an interview that the group supported HB 2, particularly the provisions restricting employment discrimination suits from entering state courts. Ebert also proposed that grievances be channeled to the notoriously conservative state Department of Labor — and that the time limits on complaints be reduced to 180 days, down from three years.

As Rob Schofield, writing at the NC Policy Watch website, explained:

[R]ather than having a right to file directly in state Superior Court as they do now, wronged workers would have to apply for a “right to sue” from [Commissioner] Cherie Berry’s Department of Labor — the state agency that has become nationally notorious for its refusal to enforce worker protection laws and that has openly bragged for years about the awards it gets from the state’s business community.

Furthermore, with election season around the corner, Republicans have made it clear that they intend to make HB 2 their campaign issue — top officials talk about making the November vote a “referendum” on the bill.

Thus, McCrory responded to the Justice Department’s ultimatum to repeal the discriminatory bill with a request for more time — at the end of which, he announced the state’s lawsuit. Hours later, Attorney General Lynch announced the DOJ was filing a federal civil rights lawsuit against McCrory, the state of North Carolina, the state Department of Public Safety and the University of North Carolina (UNC).

During her press conference, Lynch directly addressed the trans community and pledged that DOJ and the Obama Administration was going “to do everything we can to protect you moving forward”.

Although the response by the Justice Department is encouraging — and tougher than the stance it has taken, for example, toward police departments implicated in the epidemic of racist police violence — it should be understood that its actions are limited.

The Feds are only challenging the section of the bill that legislates against the right of transgender people to use the proper bathroom. Portions of the bill that permit employment discrimination and prohibit local governments from issuing laws protecting all workers aren’t contested.

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Resistance to HB 2 has been widespread. Immediately after the passage of the transphobic bill, protests demanding its repeal erupted around the state. Chants like “No more hate in our state” and “Hey hey, ho ho, HB 2 has got to go” rang out at North Carolina’s public universities — despite a weak response from new UNC President Margaret Spellings to a bill that directly impacts her students’ lives.

In April, McCrory released an executive order modifying the law that the Atlantic called “nearly meaningless.” Under the order, state-operated facilities have to maintain a standard of anti-discrimination policies, but private businesses can choose to discriminate freely. McCrory retracted the part of HB 2 blocking municipalities and counties from suing the state, but he left in place the restriction on local governments raising the minimum wage above the state level.

With McCrory putting funding for schools at risk, members of Organize 2020, a grassroots caucus in the North Carolina Association of Educators, held actions throughout the state this month in response to the state’s lawsuit against the federal government.

“Public schools are inclusive, cooperative environments, and we will not tolerate these attacks on our students and staff in the form of legalized discrimination,” teacher Todd Warren and a member of the caucus said in a statement. “This is a dangerous game of chicken with resources our children cannot afford to lose based in a political gamble to prop up our embattled governor during an election year.”

Earlier, on April 25, state legislators were welcomed back into official session by two protests.

The first, a Moral Monday march led by the North Carolina NAACP, brought together several hundred people to mark the third anniversary of the mass protests against a range of right-wing policies by demanding the repeal of HB2.

After a moving rally, hundreds of demonstrators entered the Capitol building in waves. The last group remained inside and staged a sit-in, occupying House Speaker Tim Moore’s office. A total of 54 people were arrested, including clergy, students and fast-food workers from the Fight for 15 movement.

While the arrests were still taking place, a second demonstration, organized by Southerners on New Ground (SONG), got started, with protesters disrupting the stat House’s first session with shouting and chanting for a repeal of HB 2. Protesters took turns interrupting the session and were escorted out. They were joined by more demonstrators in the lobby of the building for a militant rally calling for a people’s legislative session.

The Moral Monday protests have mobilized thousands of people over the years around a 14-point progressive agenda in opposition to the Republican-run state government. But the movement has, from the beginning, been connected to support for Democratic lawmakers. In the case of HB 2, this raises questions: 11 Democrats voted for the law in the state House, and state Senate Democrats walked out on the vote.

SONG, the Queer and Trans People of Color Collective and Black Lives Matter groups have coordinated various actions around the state, including protests that have blocked intersections and disrupted meetings. These demonstrations have put the stories of those most affected by HB 2 at the forefront and given voice to the anger and frustration of young queer folks of color.

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Beyond this, however, a longer-term strategy is necessary that can build the largest possible protests against HB 2 inside North Carolina. In the event that the law is put to a referendum vote in November, the left must be prepared to mount an energetic campaign to defend the rights of transgender people and the working class. This will require coalitions and coordinated actions involving all the different forces that have protested HB 2 so far.

As McCrory prepares to devote huge sums of taxpayer dollars — and risk the state’s public schools — in a game of chicken with the federal government, we need a coordinated and unified movement of workers, students and activists.

It will be important to remember that the devastated conditions of North Carolina schools didn’t begin with the threats caused by HB 2. They are the result of a decade of bipartisan attacks that have made this state a testing ground for neoliberal austerity. Taking on our powerful enemies today means organizing a movement that can demand the repeal of HB 2 — as well as bigger and bolder measures to win a better world for all people.