Tar Heel Toilets and Terrible Reporting: Setting the Record Straight on North Carolina’s Public Accommodation Law

Responding to rejoinders that conservatives are racists and bigots, I joined the Thom Hartmann show last week to set the record straight about the federal government’s lawsuit against North Carolina’s public accommodation law.

First, a little background.  North Carolina passed a law, known as HB2, determining that public restrooms, locker rooms and shower facilities, including some in educational settings, should be used by individuals based on their biological sex.  The U.S. Department of Justice (DOJ) has gone to federal court to argue the law should be thrown out because assigning sex by biology constitutes illegal “sex discrimination.”  The DOJ is arguing that under the 1964 Civil Rights Act, the 1972 Education Act Amendments and the 2013 Violence Against Women Act, assigning a person a sex based on their physiology constitutes illegal sex discrimination.

Here’s the rub, those laws don’t speak to transgender issues.  Instead, the DOJ is relying, in-part, on its own rewrite of those laws in which it boldly declares that gender identify discrimination is sex discrimination.

But that’s not how the Founding Fathers set up our system of government.  Congress has the power – and the duty – to write and amend laws.  The executive branch has the duty to faithfully execute those laws.  The executive branch cannot simply rewrite laws.  This would lead to the absurd result of nearly every partisan law changing every time the American people elect a new President who happens to be from a different party than his predecessor.

As a Constitutional matter, this case is extremely important since it speaks to the very nature of the federal government’s structure.  However, the case caught our attention at the National Center’s Free Enterprise Project for another reason.  More than 60 major American companies joined an amicus brief that, specifically, called for an injunction against HB2’s enforcement and, generally, supported the DOJ’s overall lawsuit.  Over the last few months, I attended that annual shareholder meetings of two of these corporations, Nike and Red Hat, where I confronted corporate executives for supporting the DOJ’s efforts.

Fast forward to my visit with Hartmann last Monday.  He, like much of the liberal media, seem unwilling to look past the headlines and realize the legal slippery slope that this case might create.  Castigating conservatives far and wide, Hartmann claimed with a straight face that right-of-center Americans “not only seem to hate trans people, they love to beat them up for political gain, which is exactly what [North Carolina Governor] Pat McCrory is doing.  He is shouting out to bigots for purely political reasons.”

It’s sometimes hard to get a word in edgewise with Hartmann, but I calmly explained that, McCrory “is standing up for the bedrock principle of this country and that is separation of powers.  That the executive branch does not write laws in this country.”

Here is the full video of the interview:

It’s clear that Hartmann – and many others in the liberal media – are trying to contort the issues in the case to fit their preconceived notions.  Unfortunately, it seems that many in corporate America are equally ignorant to the potential fallout of this case.  As I explained in a press release following Nike’s shareholder meeting:

Perhaps Nike’s executives remain blind to what the real legal issues are in the HB2 litigation.  The Obama Administration’s Justice Department is pulling a classic bait and switch.  The DOJ is using the siren song of discrimination over the use of public restrooms in North Carolina to try to wrest power away from Congress.  What the DOJ is really seeking is executive authority to rewrite federal law.  Viewed through the correct legal lens, companies such as Nike aren’t combating discrimination, they are supporting the Obama Administration’s goal of expanding executive branch power.

For a list of all 68 companies supporting the Obama Administration’s case against North Carolina, click here.

As the case continues, expect the rhetoric regarding bigotry and discrimination from the liberal media to increase.  Just don’t expect it to be accurate.

The National Center for Public Policy Research is a communications and research foundation supportive of a strong national defense and dedicated to providing free market solutions to today’s public policy problems. We believe that the principles of a free market, individual liberty and personal responsibility provide the greatest hope for meeting the challenges facing America in the 21st century.