Red Hat defended its decision to take a stand against North Carolina’s House Bill 2 when asked about it by a Washington think tank at Thursday’s shareholders meeting in Raleigh.

Justin Danhof, general counsel for the National Center for Public Policy Research, attended the meeting to seek an explanation from Red Hat about its decision to join an amicus brief along with 67 other companies, such as IBM and Cisco, in support of the U.S. Department of Justice’s opposition to the law. He posed his questions to Red Hat Chief Executive Jim Whitehurst, but company General Counsel Michael Cunningham responded.

House Bill 2 requires transgender people to use bathrooms in schools and other public buildings that correspond to their birth gender, which the Justice Department says violates their civil rights.

The NCPPR says that stance amounts to a “rewrite” of civil rights laws that has not been approved by Congress, noting that the Obama administration is trying to extend the definition of sex discrimination to include gender identity.

“The DOJ is arguing that under the 1964 Civil Rights Act, the 1972 Education Act Amendments and the 2013 Violence Against Women Act, assigning a person a sex based on their physiology constitutes illegal sex discrimination,” the NCPPR says. “It is difficult to find anyone who argues that Congress, in 1964 and 1972, intended to define ‘sex’ in any way other than biological, and Congress has not amended the definition of ‘sex discrimination’ in those laws since.”

The 2013 law “does address gender identity,” the group says, “but the scope of that law is insufficient for reaching the DOJ’s goal of overturning HB2.”

Red Hat stands ground

Responding to an inquiry from WRAL TechWire, Red Hat spokeswoman Stephanie Wonderlick acknowledged being asked about the House Bill 2 brief and that the company stood by its decision.

“In July, we issued a statement about Red Hat’s participation in the amicus brief,” Wonderlick said. “In reply to Mr. Danhof’s question at today’s meeting, we reinforced that the original statement reflects our view that our position is based on business interests.”

The original statement reads:

“Today Red Hat joined with more than 60 other companies in filing a friend-of-the-court brief in U.S. Federal District Court opposing a state law (North Carolina House Bill 2 or HB2) that enables discrimination against lesbian, gay, bisexual, and transgender people.

“Red Hat spoke out early against HB2, and our friend-of-the-court brief supports the position that the law is discriminatory and stigmatizes transgender persons. A rich pool of diverse voices that represents different perspectives, interests, and questions is critical to our business and our communities.​

“As we note in the brief, ‘diversity and inclusion are integral aspects’ of Red Hat’s operations and ‘critical to our ability to compete in an increasingly varied and global marketplace.'”

Separation of powers issue

The think tank told WRAL TechWire that it plans to ask other companies as well about their House Bill 2 stance and views the debate as one over separation of powers.

“This case is about much more than diversity. This is a question about law.” Danhof said in a statement, recounting his questioning of Red Hat.

Red Hat’s counsel responded with the view that the entire law should be overturned, Danhof said.

“I pressed Red Hat’s executives on the claim that they only signed a brief supporting an injunction,” he said in a statement. “I pointed out that this was a distinction without a difference since the brief that Red Hat signed and the DOJ’s brief on the merits apply the same logic and much of the same legal principles. At that point, Cunningham conceded that the company did support the DOJ’s primary position regarding HB2 and thought the law should be overturned.”

Danhof said that he “left the meeting with the sense that the company is fully supporting the Obama administration’s effort to rewrite federal law and that it somehow thinks the DOJ is justified in this extra-Constitutional action.

“So, I warned Red Hat’s executives that they are supporting a potentially precedent-setting case with ramifications far beyond North Carolina’s HB2 law and that, in the future, they should take a much more earnest look at all the issues before getting involved in legal cases that have almost nothing to do with the company’s operations,” he said.

Contaced for further comment after the think tank issued the statement from Danhof, a Red Hat spokesperson said the company had nothing further to add.