The Obama Department of (In) Justice Takes on North Carolina, Civil Rights, and Sexual Difference

The Gender Identity Movement insists upon recognition in the civil law of the State a newly manufactured right to choose one's gender, and to change one's mind, at any time. The proponents insist upon civil and criminal laws which accommodate, fund, and enforce this new right.

If you rely on the main stream media for your news reports, you will not hear the truth of what is really happening in North Carolina. Much of the media uses Orwellian newspeak in its reports and has degenerated into a propaganda wing of the current Administration. You are being asked to suspend common sense and accept the notion that the State of North Carolina and its Governor is discriminating against what are now referred to as "trans-genders", men who assert that they are women and women who assert that they are men. The facts are quite different. The Federal Department of (In) Justice of the Obama Administration has decided that they will now become the enforcers of a new cultural revolutionary movement.

CHESAPEAKE, VA (Catholic Online) - A few weeks ago, in an article for THE STREAM entitled Boys are Boys and Girls are Girls, Say Pediatricians and Pope , I wrote:
 
"A  movement whose acronym keeps growing has set its sights on a cultural revolution that denies the objective reality of sexual difference. That's bad enough. But worse, it now wants to wield the police power of the state to compel everyone to accept this deluded view of men and women. I refer to what is usually called the LGBT movement. In some circles it is called the LGBTQI movement. That longer acronym stands for Lesbian, Gay, Bisexual, Transgender, Queer and Intersex.

"In their new world, one can choose his or her "gender" and dress and act accordingly. Furthermore, the entire social order must be changed to accept such behavior as normal. Anyone who disagrees is disparaged as a bigot and, if many in that movement have their way, will experience the boot of punitive legal measures.

The most extreme promote the notion that children should be able to determine whether they are male or female. If their choice does not comport with the biological facts, they should be able to undergo dangerous hormone replacement therapy and bodily mutilation masquerading as medical surgery.

"The American College of Pediatricians (ACP) recently condemned this idea in a document entitled Gender Ideology Harms Children. They explained that "Human sexuality is an objective biological binary trait: 'XY' and 'XX' are genetic markers of health - not genetic markers of a disorder."

"This highly respected group of pediatricians and health care professionals continued: "The norm for human design is to be conceived either male or female. Human sexuality is binary by design with the obvious purpose being the reproduction and flourishing of our species. This principle is self-evident."

However, to many in this LGBTQI movement, it is not self-evident. The ACP insists that:

"A person's belief that he or she is something they are not is, at best, a sign of confused thinking. When an otherwise healthy biological boy believes he is a girl, or an otherwise healthy biological girl believes she is a boy, an objective psychological problem exists that lies in the mind not the body, and it should be treated as such. These children suffer from gender dysphoria."

The Federal Department of (In) Justice of the Obama Administration has decided that they will now become the enforcers of a new cultural revolutionary movement. The latest example of where they are headed in this errant use and abuse of governmental power is taking place just miles from my home in Chesapeake, Virginia, in the neighboring State of North Carolina.

The North Carolina Bathroom Controversy

If you rely on the main stream media for your news reports, you will not hear the truth of what is really happening in North Carolina. Much of the media uses Orwellian newspeak in its reports and has degenerated into a propaganda wing of the current Administration.

You are being asked to suspend common sense and accept the notion that the State of North Carolina and its Governor is discriminating against what are now referred to as "trans-genders", men who assert that they are women and women who assert that they are men.

The facts are quite different.

The people of North Carolina supported House Bill 2, which requires people to use the public bathrooms and showers which correspond with their given, biological sexual identity as a male or a female. This is common sense legislation which is in keeping with a longstanding, common sense practice which has been widely accepted as a reasonable approach. It protects privacy, avoids any possible threats to public safety and promotes the common good of society.

Not so, say the advocates of the new cultural revolution.

In its place they want to compel everyone to accept a new approach, or else. The Gender Identity Movement insists upon recognition in the civil law of the State a newly manufactured right to choose one's gender, and to change one's mind, at any time. The proponents insist upon civil and criminal laws which accommodate, fund, and enforce this new right.

This movement insists upon a fluid concept called "gender" which rejects biology, science and the given-ness of our sexual identity as male and female. Rather, under their brave new world, a man can decide he's a woman and a woman to decide she is a man. In fact, they can change that decision repeatedly, at will. A fringe group of cultural revolutionaries actually herald such a practice as enlightened and insist that the whole world accept it and grant it protected status.

What is most dangerous is the fact that they now have a willing ally and enforcer in the current Federal Department of (In) Justice in Washington, DC. If the Obama Administration has its way, this gender bender madness will soon be viewed as a constitutional right.

Obama Takes on North Carolina

The Obama Justice Department gave North Carolina until Monday, May 9, 2016 to respond to its threat to sue the State, and remove federal funds, unless it rejected the will of its own people as expressed in House Bill 2. The Obama Administration is engaged in a blatant abuse of federal authority. Its action goes way beyond North Carolina. It actually seeks to compel all States, businesses, associations, churches and organizations to succumb to its radical gender bender agenda.

They have threatened to withhold federal funding to the State if the Governor does not reject the will of the people, common sense, public safety and the real common good. The police power of the Federal Government is now being used to enforce a cultural revolution. This is all being fueled by a contrived notion that anyone can choose or change their "gender", at any time, and that such a "choice" should be treated as a civil right.

North Carolina Stands Strong

In response, Governor Pat McCrory filed a Declaratory Judgement Action in the United States Federal District Court. A Declaratory judgment action seeks guidance from the federal court in the interpretation of the Federal Law. In the complaint, the Governor of North Carolina, on behalf of the people of North Carolina, asserted:

"The Department(of Justice) contends that North Carolina's common sense privacy policy constitutes a pattern or practice of discriminating against transgender employees in the terms and conditions of their employment because it does not give employees an unfettered right to use the bathroom or changing facility of their choice based on gender identity.  The Department's position is a baseless and blatant overreach."

The Governor contends that this action by the Justice Department of threatening to sue the State was "an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts.  The overwhelming weight of legal authority recognizes that transgender status is not a protected class under Title VII.  If the United States desires a new protected class under Title VII, it must seek such action by the United States Congress."

The Governor is legally correct.  

Title IX of the 1972 Education Amendments to the Civil Rights Act "is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity", according to the Justice Department. It was intended to prevent discrimination based upon sexual difference.

However, a Virginia case, G.G. v. Gloucester County School Board, out of the Fourth Circuit, recently held that the language of the Title IX regulations which plainly used the word sex to indicate the difference between men and women, is "ambiguous". A three judge panel decided, with no basis in the law, that they had the unilateral power to rewrite the regulations and determine that the word "sex" now mean gender identity.  North Carolina falls in that federal judicial circuit.

The pertinent statutory language is found in the Code of Federal Regulations at 34 CFR 106.33 in a section entitled "comparable facilities". It reads, "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex".

The Obama Administration has unilaterally decided that the word "sex" must yield to the newspeak of the gender bender revolution. So, the law must now become what they say it is - and not what it actually says. The plain language use of the word sex no longer means biological sex. We are, in effect, being told that we must no longer affirm the biological and ontological difference between men and women and use that distinction as a basis for regulations. Rather, sex must now be reinterpreted to refer to the self chosen gender identity of the person.

The Attorney General Sues

On May 9, 2016, after North Carolina filed its Declaratory Judgment action, Attorney General Loretta E. Lynch called a Press conference. Her full remarks can be read here. She announced: 

"Today, we are filing a federal civil rights lawsuit against the state of North Carolina, Governor Pat McCrory, the North Carolina Department of Public Safety and the University of North Carolina.  We are seeking a court order declaring House Bill 2's restroom restriction impermissibly discriminatory, as well as a statewide bar on its enforcement.  While the lawsuit currently seeks declaratory relief, I want to note that we retain the option of curtailing federal funding to the North Carolina Department of Public Safety and the University of North Carolina as this case proceeds."

The Unintended Consequences?

The Obama administration has decided it can rewrite the Federal Civil Rights Act on its own authority. If the protection given under the Civil Rights Laws to legitimate classes such as race, color, and sex are now based on a self-determined, fluid notion of "identity" - and no longer to be determined by objective, factual, scientific and biological data - the efficacy of all anti-discrimination laws is potentially being undermined.

Any connection between law and objective truth has fallen victim to this Orwellian newspeak masquerading as civil rights. This represents a dangerous trend - and places legitimate Civil Rights legislation at serious risk. 

Consider one example.

Most people recoiled when it was discovered last year that a woman named Rachel Dolezal, the former head of the Spokane Washington chapter of the NAACP, had posed as a black woman, when she is, in fact, a white woman. We intuitively knew that such blatant deceit was wrong, right?  Well, not everyone.

Soon, there were those who were actually arguing that she had a "right" to choose that racial identity, even though she is not a black woman. Dolezal is now writing a book about her chosen racial identity. She recently told the Boston Globe she still identifies as a black woman. 

The proponents of the gender bender agenda equate "gender identity" and race. In a thoughtful 2015 article opposing this false comparison, African American commentator Jonathan Alexandre wrote, concerning a similar move in his own legislature in the State of Massachusetts:

"As a person of color, I strenuously object to equating "gender identity" and race. The false narrative, perpetuated by proponents of this bill, that those with gender dysphoria suffer the same plight as Black Americans during the Jim Crow era is not only offensive but intellectually dishonest."

Time to Stand for Truth

In a recent article I opined that "we live in an age rushing into darkness while professing to be enlightened. In a world with no givens, we lose the nature of the gift of our identity as male or female. As a result, we are impoverished, not liberated."

As a constitutional lawyer, I believe that the North Carolina Governor is correct in his legal analysis. As a concerned citizen, I maintain that he is a man of courage and a model for all public officials. The brave new world of gender bender madness threatens the real common good and the Obama Justice Department must be stopped in its tracks. It is time to stand for truth.

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Deacon Keith A. Fournier is the Founder and Chairman of Common Good Foundation and Common Good Alliance. An ordained minister, a Catholic Deacon of the Diocese of Richmond, Virginia, he and his wife Laurine have five grown children and seven grandchildren, He is a human rights lawyer and public policy advocate who has long been active at the intersection of faith and culture.He served as the first and founding Executive Director of the American Center for Law and Justice in the nineteen nineties and is Chief Counsel to the Common Good Legal Defense Fund. He is the Editor in Chief of Catholic Online, a senior writer for THE STREAM and a featured columnist for the Catholic News Agency.

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