Understanding the origin of Charlotte’s ‘bathroom law,’ and how it led to HB2

John Chase of Durham, center, follows the chants of North Carolina NAACP President Rev. William Barber during a rally in opposition of House Bill 2 in Raleigh, N.C. on Monday April 25, 2016.
John Chase of Durham, center, follows the chants of North Carolina NAACP President Rev. William Barber during a rally in opposition of House Bill 2 in Raleigh, N.C. on Monday April 25, 2016. rwillett@newsobserver.com

Conspiracy theories about the birth of Charlotte’s so-called “bathroom law” have ranged from tales of political payoffs to a viral internet rumor of a gay sexual predator who duped the council into passing the law. Some even accused the City Council of being in league with Satan.

But the idea for the law actually first took root quietly during July 2014 as two Charlotteans sat at Nova’s Bakery on Central Avenue, considering what more Charlotte might do to protect lesbians, gays and bisexual and transgender people from discrimination.

It lasted less than 30 minutes, and the two men – City Councilman John Autry and LGBT activist Scott Bishop – left the bakery never suspecting they were about to fan a national debate on transgender rights, the next chapter of which will play out in a Winston-Salem court Monday.

That’s where U.S. District Court Judge Thomas Schroeder will hear arguments in an ACLU bid to stop enforcement of parts of North Carolina’s House Bill 2, a hastily passed law that kept Charlotte’s LGBT nondiscrimination protections from being enacted this year.

HB2 has prompted at least five lawsuits, a series of high-profile boycotts of the state, a White House condemnation and even accusations by the European Union that the state is violating NATO treaties. The NBA announced this month that it was moving the 2017 All-Star Game from Charlotte over HB2, costing the city an estimated $100 million.

“I’m being asked ‘What have you done?’ ” says Bishop, a board member of the Washington-based Human Rights Campaign, an LGBT civil rights group. “When the European Union stepped in, I started getting feedback that we had caused an international incident.

“I can’t believe its gotten to this point.”

Autry can’t believe it, either.

He says he has received threats over his role in the ordinance, one of which was specific enough to have him contact police. Other city officials, including Mayor Jennifer Roberts, say they, too, have been threatened.

Threats have only made Autry more determined to see the matter through. Both sides expect the issue to play out in the nation’s courtrooms.

Protections ‘made sense’

The civil rights protections Bishop suggested actually dated to February 2011, when it was announced Charlotte would host the Democratic National Convention. At the time, Bishop was on the board of MeckPAC, an LGBT lobbyist group.

“Charlotte didn’t have protections for LGBT people, and that’s a big part of the Democratic platform. We had to ask ourselves: ‘What are we going to do about it,’” Bishop recalls. “We (LGBT community activists) made a list of what we were lacking and what we thought we could achieve in Charlotte.”

At the top of their list, he says, were spousal benefits, followed by workplace protections, since people still can be fired in North Carolina for being gay. However, the effort eventually got lost in all the hubbub associated with the 2012 DNC, and it was three years later that Bishop met with Autry.

What Bishop pitched to Autry that day at Nova’s Bakery was an idea to expand Charlotte’s existing nondiscrimination policy beyond race, religion and national origin to include LGBT people. Of the 20 most populous cities in the country, Charlotte (No. 17) was one of only three that didn’t have such protections in place, Bishop told Autry.

“It made absolute sense,” said Autry, who suggested Bishop meet next with the city attorney. “Charlotte strives to be seen as a progressive, welcoming city. I thought it was time we acted like it.”

Bishop said he met first with Autry because he’s an ally of the gay community but also is known to be a realist when it comes to what the council will support. Autry is straight, married and was raised a strict evangelical Christian in his preteen years. He says he has a gay daughter and a gay uncle.

‘Gates of hell’

Both Autry and Bishop say they didn’t expect restroom accommodations for transgender people to be the issue that blew up. Bishop thought it would be religious objections, which had become the basis for so-called “religious liberty laws” allowing businesses and individuals to use religious beliefs as the basis for denying services to gays.

City officials said they received nearly 40,000 emails in the days before the March 2015 first vote on the proposal, and more than 120 people signed up to speak, including those who preached, sang and read poems. One person was overcome with emotion and fainted.

Critics accused the city of opening women’s showers and restrooms to sexual predators. Supporters said transgender men and women were not predators and deserved the safety of a restroom coinciding with their gender identity. Surprising, the ordinance includes no language involving restroom accommodations for anybody. It simply removed existing policy language on the topic, which is why some complain it makes women’s restrooms vulnerable.

“They opened the gates of hell in a city,” said Philip “Flip” Benham, an evangelical Christian minister who is among the most vocal opponents of transgender bathroom accommodations.

The ordinance failed to pass that night, after being amended to leave out public accommodation rights for transgender people. By then, both Autry and Bishop no longer could support the proposal, believing the law would leave transgender people feeling abandoned by the LGBT community.

It was a year later that the policy came up for a second vote. By then Gov. Pat McCrory made it clear he opposed the policy, which he said would place “unneeded” strain on the relationship between Charlotte and the state.

“Changing basic long-established values and norms of access to public restrooms is misguided and has major statewide ramifications,” McCrory wrote to council member Ed Driggs. “This shift in policy could also create major public safety issues by putting citizens in possible danger from deviant actions by individuals taking improper advantage of a bad policy.”

During February of this year, the council passed the ordinance, only to be negated by HB2, a state law that went beyond bathroom access in government buildings. The state made it illegal for cities to expand on the state’s existing nondiscrimination law, which didn’t include LGBT people.

Under HB2, transgender people who have not taken surgical and legal steps to change the gender on their birth certificates can’t use government restrooms of the gender with which they identify.

The state’s message was clear, say LGBT advocates: Gays will not get discrimination protection.

“To repeal the Charlotte ordinance was one thing,” Bishop says, “but to add everything else in that they added was beyond anything imagined.”

‘Felt very secretive’

City Council member Kenny Smith says everything about the ordinance felt “too fast.”

He was the only council member Bishop didn’t have a chance to meet with one-on-one to discuss the policy’s merits, and he was among its biggest critics.

Smith voted against it (twice), and he also was the council member who made a motion to rescind the law after HB2 nullified it. He did that in hopes of reaching a compromise with the state, so Charlotte might stop the financial losses being racked up by canceled conventions and lost business ventures. The motion to rescind failed.

Smith says the first time he heard of the proposal was when Bishop spoke to the council during November 2014 at the invitation of council members LaWana Mayfield and Patsy Kinsey.

“It felt to me like we were being asked to pass it without opposition and put it on the agenda (for a vote) two weeks later,” Smith says. “… It felt very secretive … They wanted to get it on the agenda as fast as possible and as under-the-radar as possible.”

He agrees with critics that the Human Rights Campaign wielded too much influence.

“I’m not saying there weren’t folks in the community who weren’t concerned (about transgender rights), but this wasn’t locally driven. I think the HRC all but wrote the policy, and I would say unequivocally that it was a spoon-fed affair,” Smith says.

Bishop says he used HRC staff resources to do studies of similar nondiscrimination laws in other cities. He denies the HRC dominated city staff, who he said did their own research, including a survey of other cities where similar protections had been added. Of the cities that responded to the survey, none reported an increase in criminal activity in public restrooms, Autry says.

The Raleigh-based N.C. Values Coalition is not convinced, however. It insisted the HRC “drafted, proposed and aggressively advanced” the ordinance with the help of boycotts and “mob-like tactics.”

N.C. Values also is among the groups that suggested the ordinance campaign was too closely linked to Chad Sevearance-Turner, a Charlottean convicted of committing a lewd act with a minor in 1998 in South Carolina. He was head of the LGBT Charlotte Chamber of Commerce, one member of a coalition of businesses, faith groups and civic groups backing the proposed ordinance. He resigned from the chamber in the spring when his conviction was publicized.

“Sex offenders will be the beneficiaries of the proposed ordinance because it will provide legal cover for men to enter women’s bathrooms and locker rooms,” N.C. Values said in a statement.

So far, critics have not provided documentation that it has happened in other cities where similar laws have been enacted.

N.C. Values says it knows of 10 acts of voyeurism that have occurred inside department store fitting rooms and bathrooms across the nation where gender-neutral restrooms have been established.

Autry notes, however, that Charlotte’s law upheld existing laws regarding voyeurism, indecent exposure and other similar acts. Critics who imply otherwise are trying to scare the public, he says.

Roberts: ‘Locally supported’

Mayor Roberts, a key figure in getting the policy passed, says those who believe it wasn’t a community-driven effort are only fooling themselves.

“These (critics) are folks who are not in touch with local business leaders and the community,” Roberts says. “This was very much locally supported and initiated. People who believe it’s outside agitators are wrong.”

She has given up hope for a compromise with the state over HB2 and says she is is devoting much of her time trying to stop conventions, major events and businesses from boycotting the city.

Sarah Warbelow, legal director for the HRC, is among those who believe Autry and Bishop helped start a national movement that is changing history. But she says the North Carolina General Assembly gets a lot of credit, too, for passing HB2 in a single day.

“That knee-jerk action taken by the state is unprecedented anywhere else in the country,” Warbelow says. “On the other hand, we’re glad the American public is paying attention to transgender people because of what the state did and starting to get a better understanding of who transgender people are.”

North Carolina repealed HB2 in 2017 but left intact some of its provisions. But with Charlotte’s reputation tainted, the city is still paying to market itself to visitors.