U.S. Department of Justice Civil Rights Division Washington. D. C. 205.30 May 4, 2016 Via electronic and overnight mail Governor Pat McCrory State of North Carolina North Carolina Of?ce of the Governor 116 West Jones Street Raleigh, NC 27603-8001 Dear Governor McCrory: This letter is to infonn you that the Department of Justice has determined that, as a result of compliance with and implementation of North Carolina House Bill 2 both you and the State of North Carolina (the ?State") are in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000c, et seq. (?Title Speci?cally, the State is engaging in a pattern or practice of discrimination against transgender state employees and both you, in your of?cial capacity, and the State are engaging in a pattern or practice 0 t? resistance to the full enjoyment of Title VII rights by transgender employees of public agencies. Title VII prohibits an employer from discriminating against an individual on the basis of sex and from otherwise resisting the full enjoyment of Title VII rights. See 42 U.S.C. 2000e-2. The Supreme Court made clear in Price Water-house v. Hopkins that discrimination on the basis of ?sex? includes di??erential treatment based on any ?sex-based consideration?." 490 U.S. 228, 242 (1989) (plurality). Federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity. Sec, Glenn v. 663 F.3d 1312, 1315-20 (1 1th Cir. 201 Barnes v. City ofCincinnati, 401 F.3d 7?29, 737 (6th Cir. 2005); Smith v. City ofSaiem, 378 F.3d 566, 572-25 (6th Cir. 2004); Schroer v. Billingmn, 577 F. Supp. 2d 293. 303-08 (D.D.C. 2008); Macy v. Holder, Appeal No. 0120120821, 2012 WL1435995, at *4?11 (EEOC Apr. 20, 2012). Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition, or privilege of employment. Denying such access to transgender individuals, whose gender identity is different from their gender assigned at birth, while affording it to similarly situated non?transgender employees, violates Title VII. Signi?cantly, the LES. Equal Employment Opportunity Commission recently addressed this very issue and held that access to restrooms is a signi?cant, basic condition of employment,? and that dcnyin transgender individuals access to a restroom consistent with gender identity discriminates on the basis ofsex in violation of Title Lnsardi v. Dep?i' ofthe Army, No. 0120133395, 2015 WL 1607756, at *9 (EEOC Apr. 1, 2015). And, in interpreting the analogous sex discrimination provision of Title 1X of the Education Amendments of 1972,] the United States Court of Appeals for the Fourth Circuit held in G. G. v. Gloucester Cary. Sch. 3d, No. 15- 2056, 2016 WL [567467 at (4th Cir. Apr. 19, 2016), that the Department of Education?s guidance that educational institutions ?generally must treat transgender students consistent with their gender identity? is entitled to ?controlling weight? under Auer v. Robbins, 519 U.S. 452, 461 1-1.8. 2, which took effect on March 23, 2016, is faciaily discriminatory againsr transgender employees on the basis of sex because it treats transgender employees, whose gender identity does net match their ?biological sex," as de?ned by HB. 2,2 differently from similarly situated non-transgender employees. Under HR. 2, non-transgender state employees may access restrooms and changing facilities that are consistent with their gender identity in public buildings, while transgender state employees may not. H.B. 2 places similar restrictions on access to restrooms and changing facilities for all public agencies3 in North Carolina, including, for example, all political subdivisions of the State. On April 12, 2016, you issued Executive Order 93, reaf?rming the applicability of this provision of i-l.B. 2 to all cabinet agencies. By requiring compliance with HR. 2, you and the State are therefore resisting the full enjoyment of Title VII rights and discriminating against transgender employees of public agencies by requiring those public agencies to comply with H.B. 2. Based upon the above, we have concluded that, in violation of Title VII, the State is engaged in a pattern or practice of discrimination against its employees and both you and the State are engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights by employees of public agencies. When the Attorney General of the United States has a reasonable basis to believe that a state or person has engaged in a pattern or practice of discrimination in violation of Title VII, she may apply to the appropriate court for an order that will ensure compliance with Title See 42 U.S.C. This responsibility has been delegated to the Principal Deputy Assistant Attorney General of the Civil Rights Division. Please advise the Department, therefore, no later than close of business on May 9, 2016 whether you will remedy these violations of Title VII, including by con?rming that the State will not comply with or implement H.B. 2, and that it has noti?ed employees of the State and public agencies that. consistent with federal law, they are permitted to access bathrooms and other facilities consistent with their gender identity. We ?n?ther inform you that today the Department sent letters addressed to the North Carolina Department of Public Safety and the University of North Carolina similarly notifying Courts consider oi?ten Title VII and Title TX precedent together when analyzing discrimination claims. See, ag, Franklin v. Gwinner! Cary. Pub. Sch, 503 U.S. 60, ?14 (1992); Jennings v. Univ. ofNC., 432 F.3d 636, 695 (4th Cir. 2007); Murray v. N. Y. Univ. Cali. ofDemirrm 57 F.3d 243, 249 [2d Cir. 1995}. 2 H.B. 2 de?nes ?biological sex" as the ?physical condition oi'bcing male or female, which is stated on a person?s birth certi?cate.? NC. Gen. Stat. 3 ?Public Agencies" are de?ned by the Act as including: executive branch agencies; all agencies, boards, of?ces, and departments under the direction and control of a member of the Council of State; units, as de?ned in NC. Gen. Stat. public authorities, as de?ned in NC. Gen. Stat. local boards of education, the judicial and legislative branches, and any other political subdivision of the States. NE. Gen. Stat. 2 . . -- them of our conclusion that they have engaged in violations of Title VII, as well as violations of Title IX and its implementing regulations, and the 1'lt'iolence Against Women Reauthcrization Act of 2013 Courtesy copies of those letters are enclosed. If you have questions about this letter, please contact Delcra Kennebrew at (202) 514- 3 33 1/ Delora.Kennebrew@usdcj .gcv. Sincerely, 7W Vanita Gupta Principal Deputy Assistant Attorney General