Gov. Pat McCrory issued an executive order on Tuesday that extends new protections for state workers based on sexual orientation and gender identity.
But it leaves unchanged statewide nondiscrimination rules that do not provide legal protections for gay and transgender customers in places of public business.
Here’s a breakdown on how McCrory’s executive order impacts House Bill 2, the controversial bill passed by the Republican-led legislature last month.
What McCrory’s order does:
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▪ State worker protection – McCrory’s executive action does extend new protections for state workers based on sexual orientation and gender identity. That’s historic for the state, making N.C. the 24th state in the nation to do.
The action appears to protect someone who is transgender from discrimination at their state office, protecting them for being fired or disciplined because they are transgender.
But that same employee can’t use the bathroom of the gender they identify with. So a state worker who is a transgender man – who might have a beard – must use the women’s restroom at their state office.
“We celebrate when any state adopts new protections for state employees, but this has huge holes in it,” said Sarah Warbelow, legal director of the Human Rights Campaign.
What McCrory’s order doesn’t do:
▪ Public accommodation protections – Under the Charlotte ordinance, a business in the city would have been prohibited from refusing to serve someone because they are gay. The hypothetical case most often cited is a photographer or baker who refused to work a gay wedding. The same would have applied for someone who is transgender.
HB2 installed a statewide nondiscrimination ordinance that provided legal protections for race, color, national origin and biological sex. HB2 also nullified all local nondiscrimination ordinances, which meant that Charlotte’s original 1968 ordinance was void.
That doesn’t change under McCrory’s action.
Charlotte or any other N.C. city or town can’t prohibit discrimination based on sexual orientation or gender identity in places of public accommodation.
That’s one reason why the ACLU of N.C. and Human Rights Campaign both criticized McCrory’s actions Tuesday. It’s also why HB2 was called the most “anti-LGBT” legislation in the nation.
Scott Bishop led Charlotte’s efforts to expand its nondiscrimination ordinance when he led MeckPAC, a lobbying group for the LGBT community.
“I don’t see anything in here that says that changes,” Bishop said. “It doesn’t reinstate Charlotte’s ordinance.”
HB2 allowed a private business to establish its own rules, so a bank or restaurant could have its own policies protecting people based on sexual orientation or gender identity. At the time, HB2 supporters noted that any business could still enact its own policies.
McCrory’s action doesn’t change that. In his news release, he reaffirmed that local businesses can enact their own policies.
Critics also questioned why, if state employees now have protections based on sexual orientation and gender identity, shouldn’t the public have similar protections?
As governor, McCrory couldn’t unilaterally restore Charlotte’s ability to have its own nondiscrimination ordinance. But the governor didn’t call on the General Assembly to do so.
▪ Transgender bathrooms – McCrory’s action doesn’t change anything in HB2 related to bathrooms.
In the governor’s news release, McCrory said his order “maintains common sense gender-specific restroom and locker room facilities in government buildings and schools.”
In prohibiting cities and towns from offering nondiscrimination protection for transgender individuals, HB2 nullified the bathroom question in Charlotte.
Charlotte, or any city or town, could no longer argue that its nondiscrimination ordinance requires a business to allow a transgender person to use the bathroom that corresponds to their gender identity.
HB2 also provided specific rules for the bathrooms in government buildings, which includes K-12 schools and colleges and universities. In the bathrooms of government buildings, the only people who can use a men’s restroom are identified as male on their birth certificates, and women who use a women’s restroom are identified as female on their birth certificates.
Warbelow, of the Human Rights Campaign, said that extends to numerous buildings, such as libraries, the Charlotte Convention Center and airports. She said that remains a significant problem under HB2 and McCrory’s order.
McCrory’s order says all Cabinet agencies must provide a reasonable accommodation for single-occupancy restrooms, locker rooms and showers when someone requests them because of “special circumstances.”
Businesses can still create their own policies about bathroom access for transgender individuals. That was allowed in HB2 and McCrory’s order didn’t change that.
McCrory also said he wants to:
▪ Right to sue in state court - For decades, workers in N.C. had been able to sue in state court in cases of alleged discrimination.
HB2 took that away, and required those lawsuits to be filed in federal court only. Critics of HB2 said that while people were focused on bathrooms, the inability to sue in state court was a critical part of the legislation.
McCrory said he would “seek legislation on the right to sue in state court for discrimination.”
That will be up to the General Assembly.
The Raleigh News and Observer contributed