N.C. Lawmakers Can’t Decide if ‘Bathroom Bill' Has to Go

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By Andrew M. Ballard

North Carolina lawmakers failed to repeal a state law that limits transgender individuals’ access to public bathrooms and other facilities.

The North Carolina House, after hours of caucusing and debate, voted to adjourn late Dec. 21 without acting to repeal the controversial law, H.B. 2. A measure in the Senate that included a six-month “cooling off period”—designed to prevent a repeat of this year’s chain of events that led to H.B. 2—died before that body adjourned until next year as well.

Political finger-pointing followed, with Republican leaders accusing Democrats of not accepting a compromise and both sides claiming the other had dealt in bad faith.

The state legislature had convened in a special session after the city of Charlotte rescinded Dec. 19 a nondiscrimination ordinance it enacted in February that led to the controversial state bill.

Lawmakers were widely expected to approve the repeal, as there had been substantial backlash to the state law, including the cancellation of major sporting events, concerts and business expansion in the state. Much of the backlash directly impacted Charlotte, easily the state’s largest city with a population of about 830,000 people.

Advice for Employers

Michelle E. Phillips, a labor and employment attorney with Jackson Lewis PC in White Plains, N.Y., told Bloomberg BNA Dec. 22 that the legislature’s failure to act would result in continuing harm to North Carolina’s reputation and economy. Private employers in North Carolina and elsewhere should continue to ensure they don’t discriminate based on gender identity anyway, she said.

“Employers operating in multistate jurisdictions need to be mindful of any backlash actions or negative treatment taken towards lesbian, gay, bisexual and especially transgender employees,” Phillips said. “In addition, any staff discussion of disparate views regarding this legislation should be contained as this is a very sensitive issue and could lead to discrimination or harassment of transgender employees,” she said.

As the Equal Employment Opportunity Commission and other federal agencies have made their position on the matter clear, “employers should not enforce restroom access based on sex assigned at birth but rather based on consistent gender presentation,” Phillips said. Employers need to ensure that gender identity is covered under their harassment policies and that they promote a safe work environment void of all types of discrimination, including discrimination against transgender staff, she said.

Charlotte’s Actions

Charlotte’s city council earlier in the week repealed parts of its nondiscrimination in public contracts ordinance in a move aimed at triggering a repeal of H.B. 2 by lawmakers. Gov. Pat McCrory (R) then called the Dec. 21 special session as he had pledged to do if the city rescinded its action.

However, shortly before lawmakers met, the city council held an “emergency meeting” to fully repeal its ordinance, as it became clear that just the controversial public accommodations provisions had previously been removed. The ordinance also had added sexual orientation and gender identity to the list of characteristics under which discrimination in public contracts is prohibited.

The city council’s Dec. 21 repeal, though, didn’t include a provision that had been included in its repeal two days earlier: that if the state legislature didn’t get rid of H.B. 2 by the end of the year, the repeal would be void.

When the legislature met, the council’s actions caused some Republican members to argue that the city officials and Democratic leaders, including Gov.-elect Roy Cooper, were being deliberately misleading and negotiating a deal in bad faith.

The Senate measure’s six-month “cooling off” period would have temporarily prohibited local governments from enacting or amending any ordinance “regulating employment practices or regulating public accommodations or access to restrooms, showers, or changing facilities.” That measure failed as Senate Republicans opposed to repealing H.B. 2 were joined by Democrats who sought full repeal without the moratorium on local employment actions.

Finger-Pointing

Political finger-pointing quickly followed the adjournment of the legislature until Jan. 11.

State Sen. Phil Berger (R), president pro tem of the Senate, said in a Dec. 21 statement that “Charlotte Mayor Jennifer Roberts and Roy Cooper operated in bad faith by passing a secret, partial repeal in a closed-door meeting, and tried to claim credit for compromising on the same ‘deal’ that they killed multiple times for their own political gain during the campaign season.” Despite that, Senate Republicans “kept their end of the deal and voted to fully repeal HB2,” he said.

Cooper said in Dec. 22 comments that he was “disappointed that Republican leaders failed to live up to their promise to fully repeal House Bill 2.” The future governor, currently the state’s attorney general, said that wide agreement between lawmakers, advocacy groups and the business community existed on removing the “stain” on North Carolina but the Republican legislative leadership failed to allow the vote for full repeal to happen.

“This was our best chance, it cannot be our last chance,” Cooper said.

The Charlotte city council said in a statement issued late Dec. 21 that it “acted in good faith to do everything it understood was needed to necessitate the state legislature repealing HB2, a state law that made our non-discrimination ordinance unenforceable.” The council said it was “disappointed with this unfortunate outcome” but was still committed to “maintaining and protecting diverse and inclusive communities” and would continue to work with state leaders to do so.

To contact the reporter on this story: Andrew M. Ballard in Raleigh, N.C. at aballard@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

Text of the H.B. 2 repeal bill considered by the N.C. Senate is available at http://src.bna.com/kWw.

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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