By Kevin Murphy
The repeal of House Bill 2 ends a year of high drama in The Old North State, but many challenges remain for the LGBTQ community. Gone is the clause prohibiting anyone from using a restroom other than that which corresponds to their birth certificate. But also missing is any protection affirmatively granting transgender, genderqueer, and gender nonconforming people the right to use the restroom corresponding to their gender identity.
This vacuum is a return to the status quo pre-HB2. For publicly owned facilities, gone is the worry that using the restroom is against the law. Without any legal protection, however, the simple act of using the restroom continues to be dangerous in light of potential harassment or physical aggression from others in the bathroom.
As to private employers, it remains legal in North Carolina to deny someone employment or access to public accommodations on the basis of their sexual orientation or gender identity following this repeal. Local governments are powerless to provide otherwise until Dec. 1, 2020.
Victims of race, religion, color, national origin, age, gender and disability discrimination do enjoy some relief under the repeal bill. HB2 (and its July 2016 amendment) changed the statute of limitations on all forms of discrimination claims from three years, down to one year from the date of a discriminatory termination. The repeal bill, HB142, brings back the three-year time limit. This is important since the Equal Employment Opportunity Commission is still usually investigating the matter at the one-year anniversary date.
Section 1 repeals HB2 and the July 18, 2016 “fix” bill, which changed the wrongful discharge statute of limitations for claims based on the Equal Employment Practices Act to one year.
Section 2 permanently preempts any entity other than the General Assembly from weighing in on the bathroom question in the future.
Section 3 is worded extremely broadly and is the subject of significant disagreement. It states that “[n]o local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations.” On its face this would appear to bar local governments from a whole host of normal regulatory activity over restaurants, bars, hotels, sports facilities, public spaces, etc. The courts will have to interpret whether this applies only to anti-discrimination-type restrictions or as broadly as it is written.
Notably, the law prohibits the enactment or amendment of such an ordinance. Charlotte repealed its non-discrimination ordinance. However, any others that HB2 preempted would presumably be back on the books and enforceable under Section 3. Gov. Cooper has touted that this provision allows local governments to require LGBTQ-friendly EEO policies as part of their contracting processes. This claim is likely based on the prohibition of “ordinances”, but not on a broader prohibition of contracting activity.
However, a 2013 state law holds otherwise. Under N.C. Gen. Stat. §§ 153A-449 (counties) & 160A-20.1 (cities), local governments may not require a private contractor to abide by any restriction that the county could not impose on all employers in the county as a condition of bidding on a contract.
Section 4 places a December 2020 sunset on Section 3. This period is claimed to be enough for the courts to rule upon the relative rights at issue in this area.
While the state legislature is unlikely to establish any new protections for the LGBTQ community in North Carolina — and local governments are prohibited from doing so through 2020 — the courts are in a position to continue the progress achieved by LGBTQ civil rights activists in recent years, especially in the 4th Circuit where there are no current vacancies to be filled by the new administration and Democrat-appointed judges outnumber Republican-appointed jurists 9-6 among non-senior judges.
In addition to recognizing that the fundamental right to marry is guaranteed to same-sex and opposite-sex couples alike, courts have also found that federal anti-discrimination laws apply to the LGBTQ community in the following situations:
- Harassment and discrimination based on sexual orientation are discrimination based on sex and prohibited by Title VII of the Civil Rights Act of 1964;
- Harassment and discrimination based on gender identity are discrimination based on sex and prohibited by Title VII;
- Same-sex harassment is illegal;
- Harassment or discrimination based on failure to adhere to gender stereotypes is illegal; &
- Harassment or discrimination related to sex reassignment surgery is illegal.
See Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, available at: https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm (last visited April 4, 2017) & What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, available at: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm#examples (last visited April 4, 2017).
While formal, unambiguous codification of LGBTQ civil rights in these areas is likely many years away after the North Carolina repeal bill and the election of Donald Trump, there are many legal avenues still open to LGBTQ citizens faced with discrimination.