Gov. Pat McCrory on Tuesday issued an executive order that he said was needed to clarify widespread misunderstanding about the new North Carolina law regulating protections for gay and transgender people.
The governor’s order didn’t change the most controversial provision of the law: requiring transgender people to use bathrooms of their birth gender. Gay rights advocates criticized McCrory for not doing enough, while Republican leaders supported him.
The order comes amid a political and economic firestorm unleashed by the law. It followed by hours an announcement by Deutsche Bank that it was putting a 250-employee Cary expansion on hold, and just after a top Wake County economic developer said five companies had canceled or postponed plans to bring more jobs. The law has drawn national criticism but praise from social conservatives.
The most concrete part of McCrory’s order expands nondiscrimination protections for all state employees, including those at public universities, to include sexual orientation and gender identity.
McCrory also used the order to call on the General Assembly to restore state residents’ ability to sue employers in state court when alleging discrimination. The new law, commonly called House Bill 2 or HB2, had left only the more restrictive option of federal court.
The remainder of his order affirms the intent of the bill, officially named the Public Facilities Privacy & Security Act, which was enacted March 23 in a special session of the legislature. The order emphasizes that state law allows private businesses or nonprofit organizations to establish their own policies for their restrooms, locker rooms and showers, and their own non-discrimination policies. It also affirms that cities and counties can set their own policies for their own employees.
The order doesn’t change the provisions of HB2 that prohibit cities and counties from adopting broader anti-discrimination ordinances than state law, which doesn’t include sexual orientation or gender identity protections. Legislators called the session in time to block a Charlotte ordinance from going into effect, which would have permitted people to select bathrooms based on their gender identity, not biological sex.
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.” He invites Council of State agencies and the University of North Carolina system to make similar accommodations.
Reactions to the order
Senate leader Phil Berger said McCrory’s order “put to rest the left’s lies” about the new law, but he did not say whether the Senate would be receptive to changing the lawsuit provision when the legislature convenes April 25 for its scheduled 2016 session.
House Speaker Tim Moore could not be reached for comment.
Chris Sgro, executive director of Equality NC, which has sued to overturn the law, said the statement on nondiscrimination in state employment was welcome, calling it a first step. But the order “doubles down on some of the worst provisions” of the new law, he said.
“If he’s really serious about nondiscrimination, he’ll seek full repeal of House Bill 2,” said Sgro, who was nominated last week to a vacant state House seat, representing Greensboro.
State Rep. Nelson Dollar, a Cary Republican, said that repealing the section that bars discrimination suits from state courts “is a reasonable request on behalf of the governor. I would certainly have no problem with that.”
Attorney General Roy Cooper, who is running for governor against McCrory, refuses to defend the state against the lawsuit, saying he has a conflict because he is defending nondiscrimination policies of his office and the state treasurer’s office against the requirements of HB2. It’s unclear whether the executive order extending those protections to all state employees will affect Cooper’s decision not to defend the law.
But it does expand state employees’ rights to match the two departments’ policies that Cooper is defending. The state Republican Party is already making that a political issue.
“Now that Governor McCrory has signed an executive order expanding and affirming non-discrimination policies for North Carolina state employees, the attorney general now has two choices: come up with another excuse to not do his job, or stand up for North Carolina families and defend a common-sense law,” GOP Executive Director Dallas Woodhouse said in an emailed statement.
Berger also took a swing at Cooper “and his left-wing political correctness mob with their agenda-driven allies in the liberal media, who will never stop trashing North Carolina until they achieve their goal of allowing any man into any women’s bathroom or locker room at any time simply by claiming to feel like a woman.”
Cooper’s campaign issued a response from the candidate, renewing his call to repeal the entire law:
“Governor McCrory’s executive order is a day late and a veto short. The sweeping discrimination law he signed has already cost North Carolina hundreds of jobs and millions of dollars in revenue.
“I’m glad Governor McCrory has finally acknowledged the great damage his legislation has done, but he needs to do much more. The truth is, this executive order doesn’t change the fact that HB2 has written discrimination into the law.”
Lambda Legal, a national legal organization that defends LGBT rights and is a party to the lawsuit against the state, called McCrory’s move a “band-aid executive order” that cannot fix the damage done by the law. The American Civil Liberties Union said McCrory was dividing the lesbian, gay, bisexual and transgender community by extending protections to some while leaving discriminatory provisions in the law.
Video announces order
McCrory didn’t appear in public to explain the order. He issued a video statement and a news release, and sat down for an interview with Time Warner Cable News, where he said for the first time that he knew when he signed the bill that “fixes” would be necessary.
In his video, the governor said, “After listening to people’s feedback for the past several weeks on this issue, I have come to the conclusion that there is a great deal of misinformation, misinterpretation, confusion, a lot of passion and frankly, selective outrage and hypocrisy, especially against the great state of North Carolina. Based upon this feedback, I am taking action to affirm and improve the state’s commitment to privacy and equality.”
He concluded by saying that he was trying to provide privacy and equality for the state’s residents.
Charlotte businessman and McCrory ally John Lassiter said those goals will help satisfy the business community that North Carolina is still a good place to operate. He said reaction to the new law was unprecedented.
“Today’s action is a clear message to the growing businesses in our state and the businesses from around the country and the world that North Carolina is open for business and can be a leader in how we treat our citizens and our visitors,” Lassiter said.
Staff writer Lynn Bonner and Charlotte Observer writer Jim Morrill contributed