In May, the U.S. Department of Justice (DOJ) and the Department of Education (ED) issued a joint letter condemning North Carolina's House Bill 2 (HB2), enacted on March 24. The law holds so-called transgender people must use the bathroom that coincides with the gender indicated on their birth certificate.
Since then, 23 states have filed a lawsuit in federal court against the administration, requesting that the court rule the mandate illegal and inapplicable. In the first legal response to the lawsuit, attorneys for the Obama administration submitted a filing Wednesday maintaining the mandate is considered "guidance" and not "legally binding."
"These guidance documents — which are the focal point of plaintiffs' claims — are merely expressions of agencies' views as to what the law requires," the statement declared. "They are not legally binding, and they expose plaintiffs to no new liability or legal requirements."
The plaintiff states maintain the injunction is based on previous exchanges with members of the Obama administration regarding HB2. Although the letter conveys that "[t]his guidance does not add requirements to applicable law," members of the Obama administration have been using the letter in an attempt to strike down HB2 and similar state laws.
North Carolina was specifically threatened by the Obama administration, receiving a letter from the DOJ accusing the state of "engaging in a pattern or practice of discrimination against transgender state employees."
Secretary of Transportation Anthony Foxx, maintains the nearly $1 billion granted yearly to North Carolina is under review because of HB2, with the Department of Housing and Urban Development (HUD) also conducting its own review.
Department of Education spokeswoman Dorie Nolt said nearly $4.5 billion in funding for grades K–12 are also under under reconsideration. "We will not hesitate to act if students' civil rights are being violated."
Attorney General Loretta Lynch also supported the mandate. "There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," she insisted. "This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies."
The White House commented on the intentions of the Obama administration:
This Administration is strongly committed to advancing the cause of equality for LGBT Americans and to ensuring that they do not face discrimination simply because of who they are or who they love. ... [W]e are concerned about the potential harmful impact of this law, especially on transgender youth, and believe it is mean-spirited and sends the wrong message.
The directive and the administration's actions were also interpreted by others as a veiled threat. Republican congressmen were so alarmed that 73 of them sent President Obama a letter in May demanding he answer certain questions about the mandate, including what penalties schools would suffer if they failed to accommodate transgender students.
Attorneys for the administration, however, are claiming the mandate is merely "guidance" and that plaintiffs cannot prove its implementation would cause "irreparable harm." They maintain harm must be "real," "substantial" and "immediate."
In light of the clarification from the federal government, it's unclear whether the lawsuit will proceed.