What does Democratic Gov. Roy Cooper’s executive order this week on discrimination and bathroom access really do?
Not surprisingly, advocates on opposite sides of the debate over LGBT legal protections differed.
Cooper said Wednesday that transgender people will be able to use public bathrooms that correspond with their gender identity under a proposed settlement of a lawsuit that originated as a challenge to North Carolina’s controversial House Bill 2. He said it would make “North Carolina more welcoming.”
The N.C. Values Coalition, which supported HB2 and opposed Charlotte’s legal protection for the LGBT community, called Cooper’s order a “massive power grab” with “sweeping changes.” The coalition said his order will allow “boys and men into girls’ and women’s showers and bathrooms, but also forces private businesses to adopt sweeping LGBT special rights.”
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But a prominent national LGBT rights organization said the order is only a small step, and said it has little of the “sweeping” changes that the coalition says.
The executive order is in some ways similar to an order signed by former Republican Pat McCrory in the weeks after he signed HB2 in 2016.
McCrory’s order said that the state would not discriminate against an employee based on a number of characteristics, including sexual orientation and gender identity. That applied to state workers under the governor’s supervision, in departments like the N.C. Department of Transportation.
McCrory’s order also addressed bathrooms. It said that N.C. law – which was HB2 – required that state agency bathrooms be used by people of their biological sex. It said that if “special circumstances” arose, a state agency would make a “reasonable accommodation” of a single-occupancy restroom. The order did not specifically reference transgender individuals, but they were referring to transgender employees.
Cooper’s order reaffirms that his cabinet agencies will not discriminate based on sexual orientation or gender identity. It also states that no department or agency under his supervision will adopt a policy that prohibits or deters someone using a restroom that corresponds with their gender identity.
That doesn’t apply to a private business.
It also doesn’t apply to cities or towns, which are prohibited from setting their own regulations about bathrooms after the state repealed HB2 and replaced it with HB142. That means that the city of Charlotte can’t set any rules about bathrooms in either private businesses or its own buildings, like the Convention Center or the Government Center.
It also doesn’t apply to schools.
Chris Sgro, executive director of Equality N.C., said the order marks some “incremental progress.”
Cathryn Oakley of the Human Rights Campaign in Washington D.C. said her organization wanted Cooper to give teeth behind the order, including consequences if a transgender employee is denied access to their preferred bathroom.
The order also says that contractors doing business with the state must “attest that they will not discriminate, harass or retaliate” and that they have internal policies in place prohibiting discrimination against the protected classes, which include gender identity and sexual orientation.
The order referencing contractors and subcontractors does not mention bathrooms.
“It doesn’t address that specifically,” Oakley said.
Since the controversy over HB2, the city of Charlotte has declined to discuss the impact of new rules and regulations on the city. City officials are fearful of attracting attention to themselves over the issue.
Charlotte issued a statement Thursday that said it is “reviewing its policies in light of the Executive Order issued by Governor Cooper yesterday. The City also remains in compliance with HB 142.”
Legislative leaders Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, issued a statement condemning the executive order.
“Roy Cooper made a deal with the business community and the legislature to repeal HB2 and put divisive social issues that North Carolinians are sick of hearing about behind us, and his attempt to resurrect these issues shows he acted in bad faith and lied about wanting to end the focus on HB2,” they said.
“We trust the court will reject the governor’s latest stunt, which is inconsistent with the deal he negotiated to repeal HB2,” they said.