NC State legislators v. Charlotte City Council

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North Carolina rushed a new piece of legislation through the General Assembly and onto Governor McCrory’s desk all within a 24 hour window – culminating when McCrory signed House Bill 2 on Wednesday, March 23, 2016.  House Bill 2 (HB 2) directly overrides Charlotte’s recently passed city ordinance providing antidiscrimination protections to the LGBT community.  Perhaps even more unsettling, HB 2 not only affects Charlotte’s nondiscrimination law for LGBT persons, but its provisions have sweeping implications garnering national attention.

Governor McCrory warned Charlotte City Council members that “immediate” state intervention would happened if it passed the nondiscrimination law.

Charlotte’s City Council approved a city ordinance extending legal protections to the LGBT community in a 7-4 vote on February 22, 2016.  The ordinance amended Chapters 2, 12, and 22 of the city code to include prohibitions of discrimination against people based on their “marital status, familial status, sexual orientation, gender identity, [and] gender expression,” among the traditional protected classes of race, gender, religion, national origin, ethnicity, age, and disability.  These nondiscrimination provisions reached businesses that contract with the city, prohibiting discrimination in the selection, hiring, or treatment of vendors, suppliers, subcontractors, or commercial customers, and also mandated a nondiscrimination clause in the contracts with those businesses.

The ordinance also provided power to the community relations committee to render an annual written report with recommendations to help reduce or eliminate discrimination in Charlotte based on the classic and new protected classes.  The most controversial part of the ordinance was a change to Chapter 12, however.  Previously, the ordinance had carved out bathrooms from the non-discrimination requirements based on sex. The Charlotte amendment deleted this exception and simplified the ordinance, saying it is illegal to “deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation” because of a protected class.   This section would have allowed transgender residents to use the bathroom that matches their gender identity rather than their biological sex.

Governor McCrory warned Charlotte City Council members that “immediate” state intervention would happened if it passed the nondiscrimination law.  After Charlotte passed the ordinance, NC House Speaker Tim Moore vowed that lawmakers would be taking steps to “correct this radical course.” North Carolina legislators made good on that promise.

The General Assembly called a special session on Wednesday to enact legislation creating a conflict with the Charlotte ordinance . . .

The North Carolina Constitution, specifically Article VII, Section 1, allows the General Assembly to give “powers and duties to counties, cities, and towns” as it deems advisable.  North Carolina General Statute § 160A-4 requires broad construction of any grant of power to a city.  However, our North Carolina Supreme Court stated in a 2014 case about a Chapel Hill ordinance that although § 160A-4 grants cities broad ordinance-making power, whenever a state law and city ordinance conflict, the city ordinance is invalid because state law preempts municipal regulation.  The General Assembly called a special session on Wednesday to enact legislation creating a conflict with the Charlotte ordinance, thereby invalidating the Charlotte city ordinance and any others like it.

Although watchers expected quick action, the speed with which the bill passed surprised even some legislators. Lt. Governor Dan Forest and House Speaker Tim Moore said in a statement on Tuesday that they “aim[ed] to repeal this ordinance before it goes into effect to provide for the privacy and protection of the women and children of our state.”  Less than 10 hours after HB 2 was introduced, the bill unanimously passed  the NC Senate because every Democratic Senator walked out of the chamber in protest.  “Rather than expand nondiscrimination laws to protect all North Carolinians, the General Assembly instead spent $42,000 to rush through an extreme bill that undoes all local nondiscrimination laws and specifically excludes gay and transgender people from legal protections,” ACLU’s Sarah Preston pointed out.  In the guise of women’s safety, HB 2 specifically requires “every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex,” with biological sex being defined as the sex stated on a person’s birth certificate.  This provision directly targets the controversy surrounding Charlotte’s city ordinance.

The fear surrounding Charlotte’s “bathroom policy” which would have allowed transgender individuals to use the restroom that matches their identity is unfounded according to Sarah Preston of the American Civil Liberties Union of North Carolina.  “Legislators have gone out of their way to stigmatize and marginalize transgender North Carolinians by pushing ugly and fundamentally untrue stereotypes that are based on fear and ignorance and not supported by the experiences of more than 200 cities with these protections,” Preston said.  Currently, there are 17 states and 225 cities with laws banning LGBT discrimination that include or allow a similar “bathroom policy,” and so far there are no known instances of predatory behavior in bathrooms or locker rooms.

HB 2 does so much more than create discriminatory mandates for single sex bathrooms.

However, HB 2 does so much more than create discriminatory mandates for single sex bathrooms.  Although HB 2 creates a statewide ban on discrimination based on a person’s “race, religion, color, national origin, or biological sex,” it also prevents local governments from imposing antidiscrimination ordinances with respect to employers and businesses that are places of public accommodation.  Thus, if a local municipality wanted to prohibit employment discrimination or discrimination in public places based on sexual orientation or gender identity, it would be prevented from doing so by HB 2.  Essentially, HB2 tells the LGBT community that North Carolina does not intend to protect it from discrimination, and that North Carolina will not allow any city, town, or county to protect its LGBT citizens either.

HB 2 also drastically affects North Carolina employment law.  The new law prevents local governments from imposing any requirement on employers pertaining to the compensation of employees.  This means that cities and counties would not be able to raise the minimum wage or provide better benefits than those provided from the state, like paid leave.  Furthermore, it amends the North Carolina Equal Employment Practices Act (NCEEPA) by defining “sex” discrimination as discrimination against a person’s biological sex.

HB 2 also specifically states that the NCEEPA does not create any statutory or common-law private cause of action, and that “no person may bring any civil action based upon the public policy expressed” in it.  This is a dramatic change to decades of employment law in North Carolina because it changes the long standing common law claim for wrongful discharge in violation of public policy which provides greater protection to North Carolina citizens against discrimination based on the NCEEPA.  Historically, a North Carolina citizen who was fired based on race or religion might have legal recourse under state or federal law.  Now, however, they will have recourse only under federal law in federal court.

North Carolina has become a battleground for LGBT issues with GOP controlling legislature and governorship . . .

People across the nation immediately took to social media after HB 2 became law, with transgender citizens taking selfies to show the repercussions of this new law.  Within 24 hours of the new law’s passage, businesses immediately started making statements expressing dismay with HB 2, some implying they will no longer invest in businesses in the state.  Businesses and schools in North Carolina joined the online protest with prominent universities like Duke and major NC businesses like Red Hat making statements that they are still committed to equality and inclusion.

North Carolina has become a battleground for LGBT issues with the GOP controlling legislature and governorship, while LGBT advocates and forward-thinking cities like Charlotte push for equality.  The North Carolina legislature won this battle.  HB 2 has sweeping provisions that not only affect the LGBT community, but also affect other minorities and well-settled North Carolina employment law.  It is uncertain what will happen with this new law in the coming months; especially with this year being an election year, however, for now, HB 2 is the law in North Carolina.  To echo the reactions from fellow North Carolinians and others across the nation: we are not this North Carolina, we can do better.