Local leaders spent this week considering the ramifications of House Bill 2 and how they might support Charlotte or join the fight to oppose the state’s new law.
HB2, passed in a special session called Wednesday by the General Assembly’s Republican leaders, prohibits public agencies, including towns and schools, from allowing people to use restrooms and changing rooms other than those that correspond with the sex they were assigned at birth.
It also bans local and county governments from imposing upon employers non-discrimination requirements that include sexual orientation, gender identity or other criteria not listed in the bill. Local governments are now trying to determine whether that ban applies to their own hiring practices.
No local governments in the state currently include sexual orientation or gender identity as criteria in their regulation of private employment. But several, including Carrboro, Chapel Hill, and Raleigh, include sexual orientation and gender identity in policies dealing with the hiring of municipal employees. Orange County’s hiring policy includes sexual orientation but not gender identity.
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Scott Mooneyham of the N.C. League of Municipalities said the immediate effects of the bill’s employment provisions could vary depending on how it is ultimately interpreted. Those effects would be minimal if the bill is found not to apply to municipal governments’ hiring practices, he said.
“I think it’s awfully early for a bill that’s only been out there for 24 hours for people to be coming to these conclusions about what this means,” he said, referring to LGBT advocates’ claims that the bill undoes local governments’ hiring policies.
A statement from advocacy group Equality NC Wednesday said 17 North Carolina municipalities, as well as the UNC system, could have their non-discrimination policies nullified.
The General Assembly’s action responded to a Charlotte ordinance concerning transgender students’ use of public school restrooms, but in limiting non-discrimination ordinances to the listed criteria, it might have unforeseen consequences.
Article IV of Orange County’s 1994 civil rights ordinance, which prohibits employment discrimination based on, among other things, veteran or family status, might now be in conflict with HB 2, which does not include those criteria as protected categories.
Carrboro has included language in town contracts prohibiting discrimination on now-unprotected bases, Alderman Damon Seils said. Raleigh’s non-discrimination policy also applies to contractors, though it includes a deference to state and federal law.
Local governments already have started talking about how to oppose the law.
“We need to discuss the message that this sends to LGBT North Carolinians, who see their state leaders coming into special session specifically to discriminate against them,” Seils said. “It’s legislative bullying, and we can’t stand for it.”
The Orange County Board of Commissioners passed a resolution Tuesday, ahead of the legislature’s decision, to support Charlotte. The board has talked previously about the possibility of joining a legal battle. The county already provides single-stall unisex bathrooms in most of its buildings, officials said.
Orange County’s enforcement officers have relied on a more broad definition of gender and sex for a number of years, attorney John Roberts said.
“It prevents us from being in the situation that Charlotte finds itself in now, which is we’re going to add this language, and we’ve got the attention of Raleigh that we don’t really want,” Roberts said. “Raleigh is doing what I’ve told this board several times they have a tendency to do, which is come in and threaten to repeal local acts that they don’t like.”
It’s legislative bullying, and we can’t stand for it.
Carrboro Alderman Damon Seils
Carrboro’s Board of Aldermen also planned to pass a resolution opposing HB 2 in a special session Saturday.
It was disheartening to see the bill pass, said Carrboro Mayor Lydia Lavelle, the state’s only openly gay mayor. She would support Carrboro passing a resolution in support of Charlotte’s ordinance or even joining a legal challenge, she said.
Town Attorney Ralph is considering the implications of the new law for the town, Mayor Pam Hemminger said, and will update the council at a future meeting. The council will hold a special session at 6 p.m. Monday, March 28, to consider a resolution on HB2.
The meeting will be held in the Town Hall Council Chamber, 405 Martin Luther King Jr. Blvd.
“This state law does not change our core values in Chapel Hill,” Hemminger said. “When the Town Council put into place local laws and policies that protect the rights of the LGBT community, the council expressed the strong commitment to safeguard the rights of all of its citizens. We will always stay committed to combatting discrimination in all its forms.”
Concerns of overreach
Several officials also mentioned what Morrisville Mayor Mark Stohlman called a “theme” of legislative involvement in local government.
“Our biggest concern is with the preemption of local authority,” said Lana Hygh, Cary’s intergovernmental relations director. “Our town council believes that local decisions should be made locally.”
Mooneyham, whose organization represents the interests of local governments around the state, questioned the legislature’s decision to prohibit local minimum wage ordinances in the law, especially since he said he wasn’t aware of any local governments in the state that had tried to implement one.
“(The League of Municipalities) certainly always has and always will be for local control,” Mooneyham said. “We feel like local citizens and local elections should have consequences.”
The state’s action, Lavelle said, also may have created a religious freedom bill – without debate – that lets businesses deny service to a group of people.
“I’m not sure that our federal courts will let them get away with that,” Lavelle said, “because there’s already some Title IX decisions that spell out very clearly that, especially for young people, they have certain rights with regard to their gender identity, as far as restrooms and locker rooms. The other is quite simply the equal protection clause of the United States.”
She and others noted the similarities to a Colorado law passed in the 1990s. The U.S. Supreme Court eventually ruled – in Romer vs. Evans – that Colorado had violated the equal protection clause by denying homosexual and bisexual people the right to seek protection from discrimination.
Staff writers Johnny Whitfield, Jonathan Alexander and Chris Cioffi contributed to this report.