McCrory suit against feds may shift LGBT law narrative
Raleigh, N.C. — After weeks of taking a beating from critics over North Carolina’s law dictating which restrooms transgender people can use, Gov. Pat McCrory adopted a strategy long favored by Southern conservative governors: He went after the federal government.
The governor, trying to reshape the narrative as he fights for his political life, sued the Obama administration last week and accused officials of yet another overreach into state business. He said a court, not a federal agency, should dictate what the law known as House Bill 2 requires. The Justice Department sued him hours later over the law, with U.S. Attorney General Loretta Lynch casting the fight in stark civil rights terms.
“It’s been successful in changing the discussion from one about the business community and its reactions to H.B. 2 to one that’s more about the state’s rights versus the federal government intervention,” said David McLennan, a political science professor at Meredith College in Raleigh.
The fight, just months before McCrory faces a tough re-election battle, centers around a Justice Department directive that says not allowing transgender people to use facilities matching their gender identity broke the law and puts at least $1.4 billion in education funding at risk. It’s not the first time McCrory has called out the federal government: He joined a lawsuit challenging Obama’s executive action on immigration and his administration has fought regulation of small streams and power plant emissions. He also joined a brief last fall siding with a Virginia school district in its efforts to dictate school bathroom use on the basis of biological sex.
Hundreds of corporate executives, trade groups and other organizations have called for North Carolina to repeal the law. Some businesses have scaled back North Carolina investments or canceled projects, including PayPal, which stopped construction of a call center, costing the state 400 jobs. Entertainers from Bruce Springsteen to Pearl Jam canceled shows in protest of the law, which also limits local government anti-discrimination protections for lesbian, gay, bisexual and transgender people.
Refusing to capitulate to the federal government is fraught with peril, especially when civil rights laws are involved. Previous Southern governors, particularly those in the 1950s who tried to defy federally-mandated school integration, are forever defined as roadblocks to racial equality.
Lynch hinted at that past in announcing the lawsuit, saying North Carolina’s law created “state-sponsored discrimination.”
“It was not so very long ago that states, including North Carolina had other signs above restrooms, water fountains and on public accommodations keeping people out based on a distinction without a difference,” said Lynch, a North Carolina native.
McCrory disagrees that he’s refusing to carry out established civil rights law and said the courts should be the arbiter. He said Congress also should consider stepping in and make clear what sex discrimination means in the Civil Rights Act.
“The Obama administration is bypassing Congress by attempting to rewrite the law and set basic restroom policies, locker room policies, and even shower policies for public and private employers across the country, not just North Carolina,” McCrory told reporters at the Executive Mansion just after he sued the Justice Department.
With McCrory preparing for a re-election campaign against Democrat Roy Cooper, his lawsuit wins him support from conservative Republicans who support the law but may be thinking twice about voting this fall with Donald Trump likely at the top of the ballot. Protracted litigation also could quiet public debate until after November. The cacophony has defined McCrory the past two months, hindering him in talking about a recovering economy he’s wanted to make the centerpiece of his campaign.
“His message was so muddled,” said Mac McCorkle, a consultant for North Carolina’s past two Democratic governors, Mike Easley and Beverly Perdue. “Now he’s able to say, ‘hey, I’m just fighting the good fight, the good conservative fight.’”
His focus upon federal overreach stabilizes him politically for now but is unlikely to undo all the damage, McCorkle said. McCrory’s intervention in social issues also could risk him losing independent voters who helped elect him in 2012, when he was viewed as a moderate, pro-business Republican.
“He’s in a tricky political situation running against the federal government,” said Thomas Keck, a political science professor at Syracuse University, who studies politics and the courts and has written about LGBT rights. “When you’re talking about public restrooms, that directly raises that historical analogy” to racial segregation, Keck added.
Cooper, the state attorney general, opposes the law and said McCrory poured more fuel on the fire with litigation. McCrory’s “continued to make the situation worse every day,” said Jared Leopold with the Democratic Governors Association.
Chris LaCivita, McCrory’s chief campaign consultant, said the debate over transgender people and restrooms doesn’t need the “over the top irresponsible rhetoric from someone in the position as the attorney general of the United States.” He said McCrory has been consistent in his defense of the law since signing it in March and in fighting federal government overreach. A Justice Department letter to McCrory demanding he stop enforcing the law opened the door for the governor to sue.
LaCivita said Lynch’s legal challenge and last Friday’s Obama administration directive to public schools nationwide to let transgender students use bathrooms and locker rooms that match their gender identity “reinforced and prove what the governor’s been saying all along.”