NC Bathrooms, CA's Church Abortion Mandate and the Rule of Law

The Obama Administration can evidently move at terrific speed when its agenda – and its favored constituencies – demand it.

Less than 6 weeks ago the North Carolina General Assembly enacted a law, HB2, protecting the privacy of North Carolina residents in public bathrooms by maintaining single sex restrooms in public schools and other public buildings for each biological sex, while providing accommodations for those uncomfortable using the restroom that corresponds with their biological sex. The Obama Administration has now responded by demanding that the state and the University of North Carolina ignore the law and permit biological males into the women’s restroom and locker room (and vice versa). If they do not, the Administration has threatened to punish North Carolina by withdrawing hundreds of millions of dollars in education funding for North Carolina students.

The Administration’s argument is absurd. Title IX, the federal law that prohibits sex discrimination in higher education, expressly states that schools may “provide separate toilet, locker room, and shower facilities on the basis of sex.” Nevertheless, the Administration contends that “[a]ccess to sex-segregated restrooms and other workplace facilities [i.e. locker rooms and showers] consistent with gender identity is a term, condition, or privilege of employment” the denial of which to employees who “identify” as different from their biological sex “violat[es] Title VII of the Civil Rights Act of 1964.” That’s right. The Administration is surgically reassigning a new meaning to this decades old civil rights law, pretending that a law from the Elvis-era suddenly requires North Carolina to let men into the ladies’ room.

Its ridiculous interpretation aside, the Administration’s breakneck speed in issuing this threat against North Carolina is also noteworthy. Compare its strained but expeditious action against North Carolina to the Administration’s response to a California law forcing every insurance plan licensed by the state to cover elective abortions. The federal Weldon Amendment prohibits state and local governments from discriminating against health insurance plans because they do not cover abortions. California’s law blatantly violates this federal law by prohibiting licensure of any insurance plan that doesn’t cover elective abortion. The California law is so extreme it even forced churches’ insurance plans to cover elective abortion.

Seven churches, several individual employees of Catholic colleges, and the California Catholic Conference all complained about this clear violation of federal law to the United States Department of Health and Human Services Office of Civil Rights in September and October 2014. That was a congressional election cycle ago. The Ice Bucket Challenge was a thing, and NBC’s fall lineup included “The Apprentice,” a reality show starring Donald Trump.

And we still wait. Over 20 months later, with not even an attempt by California to justify this clear violation of federal law, the Administration continues to “investigate.” Members of Congress have repeatedly urged Secretary Sebelius and then Secretary Burwell to act. They have promised that they are “investigating” but HHS has provided no timetable for its decision much less any enforcement action. Members of Congress have even stopped the confirmation of an HHS appointee to try to spur the Administration to enforce federal law against California. In the meantime, ADF has filed two lawsuits on behalf of California churches who are being illegally forced to provide coverage of elective abortion to their employees. But the Administration appears to be trying to run out the clock rather than faithfully executing the law. Congress is now considering legislation that would permit the churches and others in their position to go to court instead of waiting in vain on the Administration to enforce a law it simply doesn’t want to enforce.

It was already obvious that the Obama Administration had no desire to faithfully execute the law and enforce the Weldon Amendment against California. But the speed with which it launched its bogus attack on North Carolina makes it all the more clear that the delay in California is willful. The Administration’s willingness to promptly execute the law (or willfully misinterpret it) clearly depends on the agenda being promoted and who is asking.