North Carolina Prohibits Cities' Passage of LGBT Protections

by | March 24, 2016

By Colin Campbell and Craig Jarvis

The North Carolina General Assembly on Wednesday approved and sent to the governor a bill that would prevent local governments from passing nondiscrimination ordinances and from opening bathrooms for people to use based on the gender with which they identify.

The vote in the House was 82-26 after three hours of debate, with all Republicans voting for it and 11 Democrats breaking ranks with their party to support the bill.

The Senate voted 32-0 in favor after all 11 Democrats present walked out in protest, saying they had not been allowed to participate in the process of writing or amending the legislation.

Senate Democrats gathered after the unusual walkout for a news conference. Senate Democratic Leader Dan Blue of Raleigh called the session "an affront to democracy" and said his caucus wouldn't be part of "this hostile takeover of human rights."

Gov. Pat McCrory's office released a statement late Wednesday stating that he had signed the bill.

McCrory opposes the bathroom provision of the Charlotte nondiscrimination ordinance that prompted the bill, but he objected to the legislature returning for a special session to deal with unrelated items added to the bill.

The legislation, referred to as House Bill 2, effectively strikes down the entire Charlotte ordinance. It would prohibit local governments from enacting their own regulations that ban discrimination. Instead, the bill would create a statewide law that would ban discrimination on the basis of "race, religion, color, national origin or biological sex" at businesses and other "places of public accommodation." But the law wouldn't include sexual orientation and gender identity as categories protected from discrimination.

"This is historic," said GOP state Rep. Dan Bishop, who was one of the bill's primary sponsors. "There's never been such a statewide nondiscrimination statute on public access in North Carolina."

According to the advocacy group Equality NC, 17 cities and towns in the state have nondiscrimination ordinances that could be revoked by the bill.

Local school districts would be banned from allowing students to use communal bathrooms and locker rooms that don't match the gender on their birth certificates. Schools still could allow transgender students to use single-occupancy facilities.

It would affect schools and public facilities but would allow private businesses to continue using their own policies.

"We're preserving a sense of privacy that people have long expected in public facilities," Bishop said.

Senate leader Phil Berger said the Charlotte ordinance must be overturned. He cited a Seattle case in which a man who was not transgender entered a women's locker room and said that a city nondiscrimination ordinance allowed him to be there.

"Something a lot worse could happen as a result of this ordinance," Berger said.

The legislation also restricts local governments from regulating employment practices. Cities and counties could not require contractors to abide by regulations or controls on employment contracts as a condition of bidding for work.

Exceptions would include contracts for city and county employees, economic development packages and federal community block grants.

That provision prompted opposition from the North Carolina League of Municipalities, which called it a "limit of the political power of local residents."

An unexpected provision in the bill appeared to eliminate a legal recourse that private sector employees have had to challenge their termination based on claims that they were discharged for reasons that run counter to "public policy." Bishop said fired workers would still be able to pursue wrongful termination claims in federal court. Democrats said that was a significant loss of employee rights, and noted that state claims can be easier to pursue than federal.

Some Democrats said on the floor that the bill would have had less opposition if the wage restrictions on local government weren't included.

Democrats also expressed concern that such a law would endanger $4 billion in federal education funding for violating nondiscrimination requirements. But Bishop said separate bathrooms, showers and locker rooms are expressly permitted under the law. He added that if the state were found by the courts to be in violation of Title IX requirements, it would be given time to comply and avoid losing funding.

Democrats criticized the Republican majority for rushing through a bill that members had only seen for the first time Wednesday morning.

Emotions ran high at times on the House and Senate floors and in committee meetings.

"This is about protecting _ not from a transgender, necessarily _ but from a predator," said GOP state Rep. Pat McElraft.

"This will make it clear it is not against the law anywhere in North Carolina to discriminate on the basis of sex," said Democratic state Rep. Grier Martin.

"It's not a good idea for (businesses) to have to have different employment rules in different places where they do business," GOP state Rep. Paul Stam said in the committee meeting.

The bill includes a statement that it is the policy of the state to safeguard everyone, regardless of sex, race and religion _ with the addition of "biological sex" as a protected class. Biological sex is defined in the bill as the sex listed on a person's birth certificate. State law allows transgender people to change the sex listed on their birth certificate after gender reassignment surgery.

Democrats sought to add sexual orientation and gender identity to the protected categories, but Republicans rejected the amendments.

"These are discussions that are very complicated and very difficult for society to wrap their minds around and come up with concrete definitions and terms," said GOP state Sen. Buck Newton, a candidate for attorney general. "It would be best if we didn't add anything such as this to the bill."

House and Senate committees both heard from religious groups and several transgender people during public comment periods. Much of the debate focused on the Charlotte ordinance's bathroom provision.

Vivian Taylor, a transgender woman who served in the Iraq War, said Charlotte's protections are much needed. "Transgender folks face incredible amounts of violence," she said. "These protections do the basic moral job of looking out for people and keeping them safe."

Another transgender woman, Madeline Goss, said she was "bullied and tortured mercilessly" when forced to use the men's restroom while attending high school. "It is unsafe for me there," she said. "Would you want to go to the men's room with me? I don't think so."

But supporters of the bill say transgender bathroom use makes them fear for their safety.

Chloe Jefferson, a student at Greenville Christian Academy, said she's scared of the implications of the Charlotte ordinance.

"Girls like me should never be forced to undress or shower in front of boys," she said. "It would be girls like me that would be affected by ordinances like Charlotte, and we deserve to be protected."

Tami Fitzgerald of the conservative North Carolina Values Coalition said there have been several reports of "transvestites" who have used nondiscrimination laws to "dress as a woman" and enter pool locker rooms where young girls were changing clothes.

But Chris Sgro, executive director of the advocacy group Equality NC, said other cities have had nondiscrimination ordinances similar to Charlotte's for decades without "any public safety concerns."

"This would be the most sweeping anti-LGBT bill in the nation," he said. "What Charlotte did is not unique or extreme."

(c)2016 The News & Observer (Raleigh, N.C.)