N.C. Considers Repealing Law Restricting Transgender Individuals Bathroom Access

By Allen Smith, J.D. Dec 20, 2016
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The repeal of the North Carolina law barring transgender individuals from using the bathrooms that match their gender identity (H.B. 2), if in fact it comes about, may be an example of the power that corporate allies of the lesbian, gay, bisexual and transgender (LGBT) community have in fighting laws that discriminate against LGBT individuals. But a deal to repeal the legislation failed to result in the law's repeal on Dec. 21, despite a special legislative session being called to kill the law.

Corporate Backlash

In recent years, "hundreds of laws that discriminate against the LGBT community have been passed or proposed nationwide," said Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago. "In the coming year, this trend will likely continue both at the state and federal level. The repeal of H.B. 2 reflects that the LGBT community along with its corporate supporters can effectively target and dismantle these laws."

On March 23, then-Gov. Pat McCrory signed H.B. 2 into law in response to a 2016 Charlotte city ordinance that permitted transgender individuals to use the bathroom that aligned with their gender identity. The state law prohibited such access in public buildings, though not private ones, noted Mark Phillis, an attorney with Littler in Pittsburgh.

[SHRM members-only toolkit: Employing Transgender Workers]

H.B. 2 sparked an outcry among the LGBT community and companies supportive of LGBT rights. Companies cancelled plans to expand in North Carolina, organizations relocated events and celebrities canceled concerts in the state.

"The overwhelming reaction of the private and public sector, the cancellation of concerts, sports events and the loss of over $600 million in revenues is a clear indication that this repeal will be met with a positive reaction and will help to move beyond this blatantly discriminatory legislation," said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y. "It also sends a signal to future legislatures to not act hastily without a proper review of the legal issues and the potential precedential impact of its actions."

Texas may consider legislation similar to H.B. 2 in 2017, Phillis said. He also predicted that the lawsuits challenging H.B. 2 likely will be deemed moot and dismissed.

McCrory lost the gubernatorial race in North Carolina to state Attorney General Roy Cooper, a Democrat, in November—a result that shows "companies can still make powerful political statements by publicizing where they will and will not spend and invest," said Scott Rabe, an attorney with Seyfarth Shaw in New York City.

Charlotte's Ordinance Repealed

On Dec. 19, the Charlotte City Council voted to repeal its ordinance, saying the repeal would take effect if the state legislature repealed H.B. 2 by the end of the year. McCrory called a special session this week to repeal the law.

In a statement, Graham Wilson, McCrory's press secretary, said, "Now that the Charlotte ordinance has been repealed, the expectation of privacy in our showers, bathrooms and locker rooms is restored and protected under previous state law." Wilson said that McCrory "always publicly advocated a repeal of the overreaching Charlotte ordinance. But those efforts were always blocked by [Charlotte Mayor] Jennifer Roberts, Roy Cooper and other Democratic activists."

Elizabeth Gill, an attorney with the LGBT & HIV Project of the American Civil Liberties Union Foundation in San Francisco, welcomed the anticipated repeal, saying that it "demonstrates that community and business pressure against discriminatory laws does have an impact."

But she added, "Charlotte should not have had to repeal its ordinance in exchange for H.B. 2 being repealed. Civil rights shouldn't be bargaining chips."

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