Patrick L. McCrory v US Department of Justice Loretta Lynch, Complaint for declaratory judgement, May 9, 2016, Legal authority recognizes transgender status is not a protected class under Title VII, North Carolina law accommodates transgender employees while protecting the bodily privacy rights of other state employees

“Any biological man – regardless of whether he “identifies” or “expresses” himself as a man OR as a woman – now has the legal right under the City’s amended ordinance to access the most intimate of women’s facilities (and vice versa). Under the ordinance, Charlotte businesses may no longer offer or enforce sex-specific facilities and face penalties if they do.”…NC House Member Dan Bishop

“You can’t fix stupid.”…Ron White

“We are being lied to on a scale unimaginable by George Orwell.”…Citizen Wells

From the  Complaint for declaratory judgement filed in US District Court on May 9, 2016 by NC Governor Pat McCrory against the US Justice Department and Loretta Lynch.

“Plaintiffs Patrick L. McCrory, in his official capacity as Governor of the State of North Carolina (“Governor McCrory”), and Frank Perry, in his official capacity as Secretary, North Carolina Department of Public Safety (“Secretary Perry”), (collectively “plaintiffs”) seek declaratory and injunctive relief against the United States of America (“United States”), the United States Department of Justice, Loretta Lynch, in her official capacity as United States Attorney General, and Vanita Gupta, in her official capacity as Principal Deputy Assistant Attorney General, for their radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered state employees. The United States, through its Department of Justice (“Department”), by letters dated May 4, 2016, threatened legal action against Governor McCrory, Secretary Perry, and others, because plaintiffs intend to follow North Carolina law requiring public agencies to generally limit use of multiple occupancy bathroom and changing facilities to persons of the same biological sex. The Department contends that North Carolina’s common sense privacy policy constitutes a pattern or practice of discriminating against transgender employees in the terms and conditions of their employment because it does not give employees an unfettered right to use the bathroom or changing facility of their choice based on gender identity. The Department’s position is a baseless and blatant overreach. This is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts. The overwhelming weight of legal authority recognizes that transgender status is not a protected class under Title VII. If the United States desires a new protected class under Title VII, it must seek such action by the United States Congress. In any event, North Carolina law allows plaintiffs to accommodate transgender employees while protecting the bodily privacy rights of other state employees, and nothing in Title VII prohibits such conduct or constitutes discrimination in the terms and conditions of employment of transgender employees. Moreover, the Department has similarly overreached in its interpretation of the Violence Against Women Reauthorization Act of 2013 (“VAWA”). Even if VAWA specifically includes gender identity as a protected class, the North Carolina law is not discriminatory because it allows accommodations based on special circumstances, including but not limited to transgender individuals.”

“18. Moreover, the overwhelming weight of authority has refused to expand Title VII protections to transgender status absent Congressional action. Courts consistently find that Title VII does not protect transgender or transsexuality per se. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (“Etsitty may not claim protection under Title VII based upon her transsexuality per se.”); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 658 (S.D. Tex. April 3, 2008) (Atlas, J.) (acknowledging that “[c]ourts consistently find that transgendered persons are not a protected class under Title VII per se”); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000) (“Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation.”); Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541, at *6 (E.D. La. Sept. 16, 2002) (“[T]he phrase ‘sex’ has not been interpreted to include sexual identity or gender identity disorders.”); Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984) (“The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder….”); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (“Because Congress has not shown an intention to protect transsexuals, we hold that discrimination based on one’s transsexualism does not fall within the protective purview of [Title VII].”) 19. In any event, even if transgender employees were covered by Title VII, plaintiffs intend, and are authorized under North Carolina law, to accommodate such individuals in the terms and conditions of their employment. Title VII does not prohibit employers, including state employers, from balancing the special circumstances posed by transgender employees with the right to bodily privacy held by non-transgender employees in the workplace. Title VII allows gender specific regulations in the workplace. See Finnie v. Lee Cnty., Miss., 907 F. Supp. 2d 750, 772 (N.D. Miss. Jan. 17, 2012) (Title VII “was never intended to interfere in the promulgation and enforcement of personal appearance regulations by private employers.”); Jackson v. Houston Gen. Ins. Co., 122 F.3d 1066, 1066 (5th Cir. 1997) (an employer does not violate Title VII by imposing different grooming and dress standards for male and female employees); Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864, 878 n.7 (9th Cir. 2001) (“We do not imply that all gender-based distinctions are actionable under Title VII. For example, our decision does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards”); Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1109-10 (9th Cir.2006) (en banc) (holding that Harrah’s grooming standards requiring women to wear makeup and styled hair and men to dress conservatively was not discriminatory because the policy did not impose unequal burdens on either sex); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1091-92 (5th Cir. 1975) (concluding that a grooming policy concerning hair length differences for males and females did not constitute sex discrimination and noting that such a policy relates “more closely to the employer’s choice of how to run his business than to equality of employment opportunity”).

20. Plaintiffs desire to implement state employment policies that protect the bodily privacy rights of state employees in bathroom and changing facilities. Plaintiffs also desire to accommodate the needs of state employees based on special circumstances, including but not limited to transgender employees. Defendants instead threaten to force plaintiffs to implement their reinterpretation of Title VII and VAWA while ignoring the bodily privacy of plaintiffs’ employees. Such action by defendants threaten to expose plaintiffs to actual liability under Title VII, VAWA, and other provisions protecting the bodily privacy rights of employees in the workplace.”

Click to access North-Carolina-s-Complaint-for-Declaratory.pdf