North Carolina Deal to Repeal ‘Bathroom Law’ Falls Through

By Allen Smith, J.D. Dec 22, 2016
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What was widely assumed to be a done deal to repeal a state law that limits transgender individuals' access to public restrooms in North Carolina unraveled at the state legislature on Dec. 21. 

North Carolina Senate leader Phil Berger filed a bill that would repeal the law but institute a six-month ban on local ordinances guaranteeing access to restrooms, the Charlotte Observer reported. But the state legislature adjourned from its special session without repealing the law after the bill was amended to extend the moratorium until the end of the 2017 General Assembly, according to CNN. Berger blamed Senate Democrats for not supporting the bill with the "cooling-off period" on bathroom access ordinances.

H.B. 2 is controversial state legislation that bans individuals from using bathrooms in state buildings that matched their gender identity rather than their gender at birth. The law has resulted in the state losing millions of dollars in business due to sports, corporate and celebrity boycotts. The law does not apply to the private sector.

The law is widely believed to have led to Republican Gov. Pat McCrory's lost bid for re-election to state Attorney General Roy Cooper, a Democrat who opposes the legislation.

Following McCrory's concession in the razor-thin gubernatorial contest, the Charlotte City Council on Dec. 19 repealed its 2016 ordinance that permitted transgender individuals to use the bathroom that aligned with their gender identity. The repealed ordinance contained an ultimatum that it would take effect only if the state repealed H.B. 2, which was intended to pre-empt the city ordinance.

Some state legislators balked at the deal at the opening of the special session called by McCrory this week to repeal the legislation. Some legislators said the ordinance had not been fully repealed, so the Charlotte City Council met again on Dec. 21 to fully revoke it, without the ultimatum. Some assumed that with Berger filing the bill to repeal H.B. 2, it was more likely the law would be scrapped. But it remains on the books at year's end, though there may be discussion of repeal again when the General Assembly meets in the new year and Cooper promised to work to scale back the law.

Protests

"It is an outrage that North Carolina's lawmakers could not follow the mandate of the voters and repeal H.B. 2," said Simone Bell, southern regional director at Lambda Legal in a statement. "As long as H.B. 2 is on the books, thousands of LGBT [lesbian, gay, bisexual and transgender] people who call North Carolina home, especially transgender people, are being discrmiinated against and will never feel safe."

"The legislature may not be willing to undo their unconstitutional overreach and respect the rights of LGBT people, so we'll just have to see them in court," said James Esseks, director of the American Civil Liberties Union's LGBT & HIV Project.

While H.B. 2 remains the law in North Carolina, the Equal Employment Opportunity Commission takes the stand that Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender individuals, cautioned Mark Phillis, an attorney with Littler in Pittsburgh.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

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