January 26, 2017 at 8:33 am EST | by Chris Johnson
Did Trump’s DOJ pick defend HB2 in court? Not exactly
Despite news Trump's DOK pick defended HB2 in court, that didn't exactly happen. (Blade file photo by Michael Key)

Despite news Trump’s DOJ pick defended HB2 in court, that didn’t exactly happen. (Blade file photo by Michael Key)

The news last week that Donald Trump had selected John Gore for a key position in the Justice Department defending civil rights ignited a burst of headlines accusing the pick of defending North Carolina’s House Bill 2 in court, but that characterization based of his role in the lawsuit doesn’t hold up and observers now cite other reasons for concern over the appointment.

As first reported by Above the Law, Gore, who until his appointment was a partner in the D.C.-based law firm Jones Day, was selected to become deputy assistant attorney general for civil rights. The division is charged with defending voting rights and civil rights laws.

But despite media reports, Gore prior to his appointment wasn’t representing North Carolina in a defense of HB2, which bars cities from enacting pro-LGBT non-discrimination ordinances and prohibits transgender people from using the restrooms in schools and government buildings consistent with their gender identity.

Instead, Gore represented the University of North Carolina, which was a defendant in lawsuits filed by LGBT legal groups and former U.S. Attorney General Loretta Lynch against HB2. Gore didn’t defend the merits of the law, but argued the University of North Carolina should be removed from the lawsuit because the school wasn’t enforcing the anti-LGBT statute. Gore’s involvement with the lawsuit was terminated on Jan. 17 in coordination with his appointment.

Although University of North Carolina President Margaret Spellings initially issued guidance to schools instructing them to enforce the law by ensuring bathrooms are “used only by persons based on their biological sex,” the school in subsequent legal filings asserted it has “not threatened to enforce” the anti-LGBT law. Ultimately, U.S. District Judge Thomas Schroeder enjoined the school in August from enforcing the law anyway.

James Esseks, director of the American Civil Liberties Union’s LGBT project and among the LGBT advocates behind the lawsuit against HB2, said “people may have concerns” about Gore, but he can’t be blamed for defense of HB2 on the merits of the law.

“His client was making an argument that they weren’t doing anything bad,” Esseks said. “The judge didn’t buy it. I thought it was not a substantial argument, but it was not an argument that HB2 was OK.”

Gore isn’t the only attorney affiliated with defense of University of North Carolina in the HB2 lawsuit chosen for a position in the Trump administration. Trump has tapped Noel Francisco, the lead lawyer for the school, as principal deputy solicitor general, the second most senior position in that office.

Jon Davidson, legal director of Lambda Legal, acknowledged Gore “was defending UNC, not the state,” but had a slightly different take and said Gore and Francisco were at least defending the school against the litigation.

“They opposed our efforts to obtain a preliminary injunction to protect the rights of UNC students and employees to continue to access single-sex, multi-user facilities on campus and repeatedly impeded our efforts in the case, so I don’t think it’s unfair to say they were at least defending against our lawsuit, even if…they said very little about the legal validity of HB2 per se,” Davidson said.

Davidson added their defense of University of North Carolina in the lawsuit “was pure doublespeak” because they said the university wasn’t enforcing HB2, but “only ‘complying’ with or ‘following’ it — whatever that was supposed to mean.”

Among the groups that issued a statement condemning the choice of Gore was the Center for American Progress, which objected to him on the basis he defended HB2 in court.

Laura Durso, senior director of the LGBT research and communications at the Center for American Progress, told the Blade the group no longer stands by its initial comments.

“We reacted to initial reports about Gore’s involvement that have now been shown to us to not be entirely accurate,” Durso said. “As such we are retracting our statement.”

With other LGBT issues at hand under the new Trump administration, such as President Trump’s support for the anti-LGBT First Amendment Defense Act and his upcoming pick for the U.S. Supreme Court, Esseks said LGBT advocates have plenty to worry about besides Gore.

“I think we have lots of evidence of the anti-LGBT nature of the Trump administration,” Esseks said. “I don’t think this is part of that.”

Emerging as a greater issue for Gore is his work defending redistricting laws passed by states with legislatures with gerrymandering districts in favor of the Republican Party. Gore defended the redistricting plans of Florida, New York and South Carolina in 2012 against legal challenges they violated the Voting Rights Act and the Constitution.

Davidson said his greatest concern with Gore at the civil rights division isn’t his involvement in the HB2 lawsuit, but his apparent lack of any experience defending civil rights.

“Given the Civil Rights Division’s role in enforcing Title VII against government entities and in enforcing voting rights, this is ominous,” Davidson said. “It is consistent with Trump’s overall pattern of selecting individuals with no background in or with active opposition to the missions of the agencies and departments they have been selected to lead. What it is certain to mean is that those agencies will no longer be carrying out their charges, but will be seeking to undermine them.”

Davidson compared the selection of Gore to the civil rights division and other Trump nominees to the plot of George Orwell’s “1984,” a novel set in a dystopian future in which totalitarian governments rule the world.

“It’s highly reminiscent of George Orwell’s 1984, where the Ministry of Truth spread propaganda, the Ministry of Peace waged war, the Ministry of Plenty engaged in rationing and the Ministry of Love practiced torture,” Davidson said. “But 1984 was not supposed to be a ‘playbook.'”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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