Getty Images

Today is the deadline the U.S. government has given Gov. Pat McCrory to withdraw the state's transphobic HB2 law.

His response? Counter-suing the government. State attorneys have asked that a judge grant the state relief from the government's suit on the grounds that their threats are baseless.

Advertisement

Here are McCrory's three main arguments. The first two are fairly legalistic, but the last one…:

1. Transgender people are not protected by Title VII, which prohibits discrimination against public employees.

But the Equal Employment Opportunity Commission ruled in a 2012 suit that discrimination based on transgender status is sex discrimination in violation of Title VII. And last summer, they specifically commented on the bathroom issue, stating that "denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination."

The commission continued:

An employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

2. North Carolina law allows considerations of bodily safety to trump discrimination.

But the EEOC notes that state law is not a defense under Title VII:

Nothing… shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.

3.  Yes, we're discriminating — but we're discriminating against everyone.

The old tautological argument: "We're not treating transgender people any differently from anyone else—they must use the bathroom assigned to their biological sex."

But of course, this confronts the very definition of being transgendered.

"If Governor McCrory is concerned with public safety, he ought to educate himself about the needs and experiences of transgender North Carolinians, whose health and safety is threatened by HB2," Wake Forest University LGBTQ Center Director Angela Mazaris said in a statement. "The Department of Justice has clearly stated that transgender people have the right to use the bathroom that aligns with their gender identity, and our Governor needs to do his job and protect the rights of our state’s most vulnerable citizens.”

Advertisement

Rob covers business, economics and the environment for Fusion. He previously worked at Business Insider. He grew up in Chicago.