The Durham City Council suspended the rules at its work session Thursday to vote on a resolution opposing House Bill 2 and calling for its repeal.
Council member Charlie Reece said many local residents had reached out to him asking when the council would respond to the law. “I’m proud to say today is that day, and now is that time,” he said.
The resolution passed unanimously and will be sent to members of the Durham County delegation to the General Assembly, the chair of the Durham County Board of Commissioners, the speaker of the N.C. House, the president pro tem of the N.C. Senate, and Gov. Pat McCrory.
City Attorney Patrick Baker presented a report at the meeting about the law’s impact on city policies and operations.
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He said the city and other public agencies must require that single-sex, multiple-occupancy bathrooms and changing facilities only be used according to “biological sex” as defined by the new law.
“They’ve made it very clear that localities can’t change that, make any accommodations similar to what Charlotte did,” he said.
But he said that HB2 does not provide a penalty for people who use bathrooms that do not correspond to their birth certificates.
According to the report, the statute did not provide any guidance on whether bathroom signs marked “Men” or “Women” need to include additional information about the definition of “biological sex.” For now, Baker said, the city can wait to see what is done in state-controlled buildings.
He also explained that HB2 leaves private businesses’ bathroom policies up to their discretion.
In the resolution, the council encouraged private businesses to take advantage of this “by openly welcoming LGBT people to their places of business, by providing gender-nonspecific bathroom facilities for their customers and employees wherever practicable, and otherwise to encourage their customers and employees to use the bathroom facilities that most closely align with their gender identity.”
HB2 prevents cities from requiring contractors to pay employees a livable wage, but Baker said a law passed in 2013, known as House Bill 74, had already effectively done so. Because Durham had already developed a policy in line with the 2013 law, HB2 will not affect the city on this issue. HB2 did, however, close some potential loopholes in House Bill 74, Baker said.
The city also has a policy saying it “desires that firms doing business with the City” not discriminate on the basis of sexual orientation, gender identity or gender expression. But the policy is not binding and therefore does not, in the city attorneys’ view, violate HB2.
Baker said several suits had been filed in response to HB2, one by Durham resident and NCCU professor Angela Gilmore. But litigation currently pending in the 4th Circuit Court of Appeals, which has jurisdiction over North Carolina, will likely offer guidance even sooner. The case, involving a student in Virginia, may address whether transgender discrimination falls under Title VII as a form of sex discrimination, he said.
Several Durham residents made public comments about HB2 before the council voted on the resolution.
“I do support the governor and feel that he’s right,” Rose Sanchez said. “I think many other citizens do despite the resolution that’s been proposed today.”
Luke Hirst, Patty Adams and LGBTQ Center of Durham executive director Helena Cragg spoke in support of the resolution, although Cragg challenged the council to do more.
“Hopefully your work is not going to end after today,” Cragg said. “Hopefully we can call on you to show the sort of leadership that Charlotte did and at every opportunity proactively work to repeal HB2.”