The first polling results have been released since Republican North Carolina Gov. Pat McCrory signed SB 353, an omnibus anti-choice bill that has the potential to close many of the abortion providers in the state, and the governor’s approval rating has taken a hit.
New polling by Public Policy Polling (PPP) puts the governor’s approval rating at just 39 percent, and for the first time in his term a majority of voters (51 percent) disapprove of his job in office. According to PPP, Gov. McCrory’s total approval rating has dropped 26 percent in five months. “McCrory’s signing of a controversial abortion bill and the way he’s handled it is responsible for a lot of his problems,” wrote PPP chief pollster Tom Jensen. “Just 27% of voters think he kept his campaign promise not to enact any further restrictions on abortion, [compared] to 50% who think he broke it.”
Soon after signing SB 353 into law, the governor brought a plate of cookies out to reproductive rights advocates who were protesting outside the governor’s mansion. Of those polled, 57 percent said it “was inappropriate for him to give protesters cookies instead of meeting with them,” and only 26 percent considered the move acceptable.
“Considering his behavior over the last few weeks, we were not surprised to see the poll this morning showing that the governor’s approval rating has plummeted,” Suzanne Buckley, executive director of NARAL Pro-Choice North Carolina, said in a statement. “North Carolina voters recognize a broken promise when they see it, and the bottom line is that McCrory lied. Governor McCrory made a campaign promise not to support any more restrictions on abortion care, and then he signed SB 353, a law that contains a multitude of provisions that directly and indirectly restrict access to abortion care.”
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“McCrory’s cookie debacle shows not only a lack of respect for his constituents, but an egregious level of condescension and disrespect for women,” Buckley continued. “He and his administration are out of touch with the values of North Carolina voters.”
Gov. McCrory’s claims to want to protect North Carolinians are not holding water if he and state Republicans continue to ignore policies that will keep all citizens safe and healthy and, instead, show support for legislation that would make it easier for people to access guns.
This piece is published in collaboration with Echoing Ida, a Forward Together project.
We all watched the news of the Pulse nightclub massacre in horror.
In my state, on June 13, one day after the shooting, the North Carolina General Assembly moved forward on reading an amendment that would lift restrictions on our right to carry a concealed weapon. Currently, people have to take classroom training and pass a background check. The new measure would allow concealed weapons in public without many requirements. While it’s unclear when state legislators will take action on this bill, it’s troubling to know that some state leaders are not bolstering comprehensive gun control in light of the massacre.
These same legislators claim that they are supporting and passing policies that will keep citizens safe. But at the same time that hate has fueled deadly shootings in this country, state Republicans have introduced anti-trans legislation that has coincided with a wave of violence against trans people.
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Earlier this spring, North Carolina Gov. Pat McCrory signed into law a much talked about bill that discriminates against transgender people in the state, a group of citizens already at risk for violence and harassment not only in bathrooms, but in most public places.
While there is no clear link connecting the shooting to these discriminatory bathroom policies, we know that hateful beliefs and violent actions preluded the brutal killings in Orlando, and that intolerance can fuel laws like North Carolina’s HB 2.
Just this week, state lawmakers were considering revising the law, but those changes would effectively privilege trans people who are able to, or wish to, have gender reassignment surgery over other transgender or gender-nonconforming people. Rightly so, advocacy groups were quick to criticize the proposals, which would do nothing to allow individuals to use the bathroom of their gender identity.
Gov. McCrory and state leaders talk about protecting women, but they should be concerned with protecting the safety of all residents, especially the most vulnerable: transgender residents. HB 2 puts transgender individuals more at risk of violence in public spaces. We cannot continue to have these safety and privacy arguments at the expense of transgender North Carolinians.
This cannot be overstated: There have been no incidents of transgender individuals attacking people in public bathrooms. However, there has been an uptick of attacks in public bathrooms in response to the fear HB 2 has incited. The disgraceful conversation about “scary” trans women in women’s bathrooms has people mistaking cis women for trans women and harassing them in bathrooms. A woman entering a Walmart bathroom sporting a short hairstyle was told by a stranger, “you’re disgusting!” and, “you don’t belong here!” Trans women experience this quite frequently, which is why Charlotte passed the ordinance to allow North Carolinians to use the bathroom of their gender identity, to keep trans women safe in public spaces. But then HB 2 gave license to individual citizens to police who enters public bathrooms, adding to the violence marginalized groups already experience—not reducing it.
As actress and activist Candis Cayne explained on CNN, “[HB 2] will stop people from being comfortable in this society. It will stop people from wanting to leave their house, because going to the bathroom is such a natural function. You leave your house every day. You want to go shopping. You want to go to the post office, but if you have to go to the bathroom along the way, you’re not allowed to. It’s a bill that’s really kind of making people in my community have to stay home, have to not be a part of our society.”
After Gov. McCrory signed and was heavily criticized for HB 2, he claimed that the state government was looking out for women’s privacy.
His claims have been debunked over and over again, and based on past legislation, we can see that state Republicans have not prioritized the needs of the state’s most marginalized populations over their own need to breed intolerance and government interference in the health and well-being of those populations.
I’m sure many of Rewire’s readers remember HB 465, signed into law last summer. The law stipulates that women must wait 72 hours to access an abortion. The medically unnecessary legislation directly contradicts McCrory’s statements in support of the anti-trans law HB 2 about the need to protect women’s privacy and safety, considering doctors are now required to send private ultrasounds of women who have had abortions to a governmental agency. North Carolina pro-choice advocates have been pushing that this stipulation is unnecessary and downright creepy. It also fuels stigma around a basic health-care service. That law went into effect January 1, but if McCrory and other legislative leaders truly believed in women’s privacy, they would look again at HB 465.
While we’re on the subject of privacy and safety, state Republicans leaders have forgotten that a great way to keep women safe is to ensure their economic sustainability. Many have noted that HB 2 not only affects those who can or cannot enter a public restroom, it takes away municipalities’ power to raise the minimum wage. Who will be most affected by this stalemate? Women, of course, who make up two-thirds of the people who work minimum-wage jobs.
A couple of years ago, the North Carolina state budget also reduced after-school care for children. Does this policy protect women and families? No. Not only that, it further stigmatizes low-income mothers, who are hard-hit by such budget cuts. For North Carolina women, the fear is not in bathrooms, but in the low-wage positions we are placed into.
Gov. McCrory’s claims to protect North Carolinians are not holding water if he and state Republicans continue to ignore policies that will keep all citizens safe and healthy and, instead, show support for legislation that would make it easier for people to access guns. We haven’t expanded Medicaid, we have continued restrictions on reproductive health care, and so many North Carolina women don’t make a living wage.
Trans-inclusive policies, like the Charlotte ordinance that intended to allow transgender individuals to use the bathroom of their gender identity, are not a threat to the safety of North Carolinians, but lifting gun requirements may threaten our safety. It’s time for state Republicans to give North Carolinians what we are demanding: an inclusive, safe, and healthy state that we all want to live in.
In what promises to be one of the most closely watched legal showdowns of the year, North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against one another on Monday, each asking a federal court to determine the legality of the anti-trans bathroom discrimination provisions in the state’s recently enacted HB 2.
HB 2 is the grossly discriminatory law that overturns local anti-discrimination laws, bans cities or counties from setting a minimum wage for private employers, and mandates that access to restroom facilities in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate.And even with the relative lack of legal precedent relating to trans people’s civil rights, if history is any indication, North Carolina very well may find itself on the losing end of this fight.
During a Monday press conference, U.S. Attorney General Loretta Lynch announced that the DOJ would be filing a lawsuit seeking a permanent injunction to block the bathroom discrimination provision of HB 2 and accused North Carolina of creating “state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security—a right taken for granted by most of us.”
Speaking directly to the transgender community, Lynch said, “[N]o matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”
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The DOJ had previously given North Carolina Gov. Pat McCrory (R) the opportunity to avoid the expense and hassle of defending a lawsuit against the United States. Principal Deputy Assistant Vanita Gupta gave McCrory an ultimatum in a letter last week: Confirm that the state of North Carolina would not“comply with or implement” HB 2, or risk a civil rights lawsuit and a curtailment of the nearly $861 million in federal funds North Carolina receives annually. Gupta gave the state until this last Monday to think about it and to notify employees that, consistent with federal law, they are permitted access to bathrooms and other facilities that align with their gender identity.
McCrory responded by filing an utterly pointless lawsuit. North Carolina could have easily saved itself thecost of filing, told the DOJ that it would move ahead with HB 2, and just waited to be slapped with a lawsuit. The cases are going to be consolidated anyway. But wasting taxpayer dollars in the persistent effort to oppress marginalized people seems to be a favorite tactic among states with nothing better to do.
Instead of confirming that he would stop the campaign against trans people, McCrory sued the Obama administration in federal court in North Carolina for its “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 [sic] state employees.”
Title VII prohibits sex-based employment discrimination, among a number of other protections. According to the tortured analysis in McCrory’s complaint, the DOJ is “ignoring the bodily privacy” of state employees, particularly women and girls who, as a result of bathroom equality, could be vulnerable to assault by any sexual predator claiming to be a woman in order to gain easier access to their prey, despite the fact that there is not a single reported incident of a trans person assaulting anyone in a bathroom.
McCrory’s complaint cites a handful of cases out of the Seventh, Eighth, and Tenth Circuit Courts of Appeal, all of which stand forthe proposition that Title VII doesn’t protect transgender people as transgender people per se, and that it doesn’t protect people with “sexual identity disorders.”And besides, McCrory argues, even if transgender employees are covered by Title VII, the statute doesn’t prohibit employers from balancing special circumstances they pose with “the right to bodily privacy held by non-transgender employees in the workplace.”
Even setting aside McCrory’s problematic intimation that transgender employees don’t have the same “right to bodily privacy” that cisgender employees do, McCrory’s complaint misses the point.
The issue is not discrimination against transgender people for being transgender people, but rather, as the DOJ pointed out in its letter to Gov. McCrory, the issue is that discrimination against transgender people is discrimination based upon sex, and discrimination based on sex is a violation of Title VII.
Citing the landmark decision Price Waterhouse v. Hopkins, in which the Supreme Court made it clear that discrimination on the basis of “sex” includes differential treatment based on any “sex-based consideration,” the DOJ noted that federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity.
In Hopkins, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination, and held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.
It makes sense that the same principle would apply to transgender people. Ann Hopkins was treated differently at work because she expressed her gender in a manner that did not conform to arbitrary societal standards. Similarly, transgender people who are prohibited from using the bathroom that conforms to their identity are being treated differently than cisgender people, because transgender people, as far as some of the courts are concerned, are not expressing their gender in a manner that parts of society deem suitable.
As the 11th Circuit noted in the 2011 case Glenn v. Brumby, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.”
If cisgender people can use facilities for people who share the biological gender with which they identify, then it is discriminatory to deny transgender people that same personal dignity. Full stop.
McCrory doesn’t seem to understand this and is stuck on the notion of “biological sex”: In his complaint, he protests that “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”
One can imagine making the same argument with respect to, say, racially segregated bathrooms: “All state employees are required to use the bathroom and changing facilities assigned to persons of their same race.”
And one hopes McCrory would agree that such an argument would fall flat on its face.
Ultimately, the fight between the United States and North Carolina is about more than just bathrooms. It’s also about conservative panic about the seeming cultural lawlessness of the Obama administration.
Conservative commentators are caterwauling that the Obama administration is rewriting Title VII and its sister act, Title IX of the United States Education Amendments of 1972—which prohibits discrimination in schools—to advance a transgender agenda. They complain that transgender people are not a protected class under Title VII or Title IX, and that extending the anti-discrimination protections found in those statutes to transgender people requires Congress’ stamp of approval.
Notably, McCrory’s complaint is silent on Title IX, presumably because the Fourth Circuit (which is where North Carolina sits) announced last month that it would defer to the Obama administration’s Title IX guidelines, which require schools that receive public funding to permit transgender students to use bathrooms consistent with their gender identity. The Obama administration reaffirmed this guidance in a letter to public schools on Friday.
The primary complaint of McCrory and his cronies is that the Obama administration is redefining “sex,” and that the new definition far exceeds anything that Congress could have contemplated when it enacted the twin statutes in 1964 and 1972. McCrory’s complaint about the “radical reinterpretation” of Title VII underscores that point.
But that’s not necessarily true. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for interpreting and enforcing Title VII under the Obama administration, isn’t redefining “sex” for purposes of the prohibition against sex discrimination in Title VII. Not really. Rather, the EEOC has given the term some context in light of Hopkinsand similar cases, in which courts have recognized that sex discrimination includes gender stereotyping.
And the EEOC is well within its right to do so. In 1997’s Auer v. Robbins, the U.S. Supreme Court ruled that federal agencies are entitled to interpret their own regulations as they see fit, as long as their interpretation isn’t erroneous and doesn’t conflict with the plain language of the statute or regulation.
Assuming the North Carolina federalcourt follows the Auer rule, McCrory won’t have a legal leg to stand on.
McCrory will likely argue that Congress did not intend the term “sex” to mean anything other than “biological male” or “biological female.” But certainly the EEOC’s more expansive interpretation—that sex includes gender identity—is not contradicted by Title VII or by congressional intent. Indeed, the legislative history regarding Title VII is rather sparse because the prohibition against sex discrimination was a last-minute addition to its protections.
Title VII initially was conceived to prohibit racial discrimination in the workplace. Rep. Howard Smith (D-VA) introduced an amendment to add sex discrimination protections to Title VII a mere two days before the House of Representatives was scheduled to vote on it. Smith, who was a vocal opponent of civil rights for Black people, was considered a staunch supporter of women’s rights. (How he felt about Black women—or whether he even knew that they existed—is anyone’s guess.) So any discussion of congressional intent with respect to sex discrimination and Title VII is going to be short-lived.
An argument could certainly be made that Congress was not contemplating that “sex” would mean anything other than “male or female” and that it didn’t intend sex discrimination to encompass gender identity when it passed the statute, but if there’s nothing in the legislative history, then who can tell?
Besides, as a wise man once said, “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
That’s Justice Antonin Scalia writing the majority opinion in Oncale v. Sundowner Offshore Services, a case involving male-on-male sexual harassment. Scalia noted that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.”
Almost assuredly, neither was transgender bathroom access, but that doesn’t mean denying transgender people the dignity of using a bathroom aligned with their gender identity is not a “principal evil” prime for redress under Title VII.
After all, if it’s good enough for Scalia, it should be good enough for Gov. McCrory.