Last Wednesday, the whirlwind special session convened for the purpose of overturning Charlotte’s antidiscrimination ordinance—particularly a provision that allows trans people to use the bathroom that conforms to their gender identity—concluded with Governor McCrory signing a law that did so much more. Ending the ability of cities to create their own nondiscrimination measures, eliminating workplace-discrimination lawsuits, forbidding local governments from raising the minimum wage, and codifying anti-LGBT animus into state law: these are all things that made it into House Bill 2, which became law less than twelve hours after it was introduced.
The backlash was swift and furious. The NBA made a thinly veiled threat to strip Charlotte of the 2017 NBA All-Star Game. North Carolina companies Red Hat, Biogen, the Charlotte Hornets, and the Carolina Hurricanes all denounced the law, as did Apple, Google, IBM, Salesforce, Bayer, Marriott, American Airlines, PayPal, Lowe’s, Dow, and more.
Over the weekend, McCrory’s office dispatched a press release in response to the fallout. Titled “Myths vs. Facts: What New York Times, Huffington Post and other media outlets aren’t saying about common-sense privacy law,” the release, dressed up as an FAQ, paints McCrory as the victim of the nefarious liberal New York media. The FAQ, posted on both his administration and campaign sites, was promoted on social media and blasted out in emails by state agencies, including the Department of Commerce, Department of Environmental Quality, and the Department of Transportation.
Like the law it is defending, the FAQ seems hastily prepared and, well, not entirely thought through. Some items are flat-out false, while others are, at best, half-truths. So, in the spirit of cooperation, we’ve decided to help the governor out. Here’s the press release in full, accompanied by our annotations.
1. Does the new bill limit or prohibit private sector companies from adopting their own nondiscrimination policies or practices?
Answer: No. Businesses are not limited by this bill. Private individuals, companies and universities can adopt new or keep existing nondiscrimination policies.
Businesses aren’t limited by the bill, but government buildings, including schools, are—which may put the $4.5 billion the state receives in Title IX funds at risk (see item 11). But, under the law, businesses are free to discriminate against gay and transgender people, with the blessing of state law, and local elected officials can’t do anything about it.
2. Does this bill take away existing protections for individuals in North Carolina?
Answer: No. In fact, for the first time in state history, this law establishes a statewide anti-discrimination policy in North Carolina which is tougher than the federal government’s. This also means that the law in North Carolina is not different when you go city to city.
Seventeen local governments have passed various types of antidiscrimination ordinances based on things like race, religion, gender, sexual orientation, and veteran status. Many of them are gone. In their place is a state law that prevents discrimination on the basis of race, religion, color, national origin, or “biological gender,” but not sexual orientation, gender identity, or veteran status. And the idea that the state law is somehow tougher than federal policy is not quite accurate. While federal law doesn’t prohibit LGBT discrimination, federal policy—through the Department of Education’s Title IX interpretation and an executive order—does provide protections to LGBT students and workers.
3. Can businesses and private facilities still offer reasonable accommodations for transgender people, like single occupancy bathrooms for instance?
Answer: Yes. This bill allows and does nothing to prevent businesses, and public or private facilities from providing single use bathrooms.
This is true. But the thing about civil rights—and make no mistake, this is a civil rights issue—is that they are in fact rights, and rights should not be subject to a business owner’s whims.
4. Can private businesses, if they choose, continue to allow transgender individuals to use the bathroom, locker room or other facilities of the gender they identify with, or provide other accommodations?
Answer: Yes. That is the prerogative of private businesses under this new law. For instance, if a privately-owned sporting facility wants allow attendees of sporting events to use the restroom of their choice, or install unisex bathrooms, they can. The law neither requires nor prohibits them from doing so.
Ignoring the fact that you never hyphenate two-word phrasal adjectives that begin with an adverb ending in ly, this is correct.
5. Does this law prohibit towns, cities or counties in North Carolina from setting their own nondiscrimination policies in employment that go beyond state law?
Answer: No. Town, cities and counties in North Carolina are still allowed to set stricter non-discrimination policies for their own employees if they choose.
Local governments can set stricter nondiscrimination policies for their employees, but not for their contractors. Due to existing state law, those governments are required to take the “lowest responsible” bid on a project—which means a city could be forced to route tax dollars to a contractor who openly refuses to hire gays and lesbians.
6. Does this bill mean transgender people will always have to use the restroom of the sex of their birth, even if they have undergone a sex change?
Answer: No. This law simply says people must use the bathroom of the sex listed on their birth certificate. Anyone who has undergone a sex change can change their sex on their birth certificate.
First, not everyone who is transgender wants to undergo gender-affirmation surgery; whether or not one has undergone a costly operation has nothing to do with one’s gender identity. Second, not everyone who wants the surgery can afford it; in fact, transgender people are nearly four times as likely to face extreme poverty as their cisgender peers. Finally: How do you enforce this without requiring everyone to carry around his or her birth certificate?
7. I’m worried about how this new law affects transgender children or students in North Carolina. Does this bill allow bullying against transgender children in schools?
Answer: Absolutely not. North Carolina law specifically prohibits bullying and harassing behavior against children on the basis of sexual identity.
True, but bullying is still a big problem for trans students. Nationwide, 61 percent of trans people report “significant abuses in an educational setting,” from kindergarten through grad school. Forty-one percent report having attempted suicide, compared to just 1.6 percent of the overall population.
8. Does this bill affect people with disabilities?
Answer: No. Statewide law also bans discrimination based on disability.
The legislature passed the Persons with Disabilities Protections Act in 1985. However, the new law effectively overrides workplace-discrimination protections, including those on the basis of disability, by eliminating workers’ ability to file discrimination lawsuits in state court.
9. Why did North Carolina pass this law in the first place?
Answer: The bill was passed after the Charlotte City Council voted to impose a regulation requiring businesses to allow a man into a women’s restroom, shower, or locker room if they choose. This ordinance would have eliminated the basic expectations of privacy people have when using the rest room by allowing people to use the restroom of their choice. This new local regulation brought up serious privacy concerns by parents, businesses and others across the state, as well as safety concerns that this new local rule could be used by people who would take advantage of this to do harm to others.
In fact, the Charlotte City Council tried to pass this ordinance before but failed, and passed the same ordinance in February of 2016 despite serious concerns from state officials, business leaders and other concerned citizens.
This whole thing is based on a falsehood: of the 19 states and 225 cities that have ordinances like Charlotte’s, The Daily Beast reported last week, there have been zero cases where rapists have used the law as a pretext to commit sexual assault.
Furthermore, the Charlotte ordinance did not allow a cisgender man into a “women’s restroom, shower, or locker room.” The state law will, however, force trans men to use the women’s facilities, which could prove awkward—and might lead to violence.
10. What about parents or caregivers bringing children into the restroom?
Answer: The law provides exceptions to young children accompanied by parents or care givers.
Nice of McCrory to take credit for this, since it was Representative Tricia Cotham, D-Mecklenburg, who got this provision inserted into the bill. Cotham, by the way, voted against the final legislation.
11. Will this bill threaten federal funding for public schools under Title IX?
Answer: No, according to a federal court which has looked at a similar issue.
Actually, it might. The U.S. Department of Education issued guidelines in 2014 clarifying that transgender students are protected from discrimination under Title IX, and last year the Department of Education reached a settlement with an Illinois school district mandating that the district allow trans students to use the bathroom and locker rooms that conform to their gender identity.
McCrory appears to be referring to a Virginia case called Grimm v. Gloucester County School Board, in which a judge denied a sixteen-year-old transgender student a preliminary injunction that would allow him to use the boys’ room. That case has been appealed, and one judge’s verdict is hardly determinative.
In that case, the ACLU is claiming the school district’s policy runs afoul of Title IX. The federal lawsuit that the ACLU, Equality NC, and Lambda Legal filed on Monday is based on a similar argument.
12. Will this bill prevent people from receiving medical attention in an emergency.
Answer: Absolutely not. Nothing will prevent people from receiving medical attention in public or private accommodations.
The state’s failure to expand Medicaid, on the other hand …
13. Will this bill affect North Carolina’s ability to create or recruit jobs?
Answer: This bill does not affect companies in North Carolina. North Carolina was one of the top states to do business in the country before this law was passed, and preventing Charlotte’s bathroom ordinance from going into effect on April 1 won’t change that.
“Brand matters,” says Wake County commissioner Matt Calabria, who pushed through the county’s living-wage ordinance and protections for its LGBT employees. “When you engage in practices that are discriminatory, companies take that very seriously.” On Facebook last week, Calabria relayed the story of an unnamed Fortune 500 CEO who told him: “We invested a billion dollars in this state. You think we are going to invest another if you don’t fix this?”
Indeed, after Indiana’s Religious Freedom Restoration Act passed last year, that state faced widespread recriminations from the business community. The impacts on Indiana—though the law was only in effect for a few days before it was curtailed—were enormous. All told, the city of Indianapolis alone lost at least $60 million and twelve conventions.
Earlier this week, to stave off a similar firestorm, Republican Georgia governor Nathan Deal vetoed an anti-LGBT bill passed by the legislature.
14. Why is the state telling cities and towns what it can and can’t do by repealing an ordinance the elected members of the Charlotte City Council passed?
Answer: North Carolina is one of at least 37 states like Virginia where cities and towns cannot pass rules or regulations that exceed the authority given to them by the state. In passing the bathroom ordinance, Charlotte was exceeding its authority and setting rules that had ramifications beyond the City of Charlotte. The legislature acted to address privacy and safety concerns if this ordinance was allowed to go into effect on April 1.
“Transgender identity is a complex issue, and is best handled with reason and compassion at the local level”—Pat McCrory, in November, when North Carolina joined other conservative states in opposing a Virginia transgender student’s lawsuit over bathroom access.
15. Do any other regulations in North Carolina cities, towns or counties come close to what Charlotte was recommending?
Answer: No. Not that we are aware of. Therefore, nothing changes in North Carolina cities, towns and counties, including in Charlotte, regarding discrimination practices and protections now that this law has passed.
While seventeen North Carolina municipalities have nondiscrimination ordinances that may now be nullified, Charlotte did go further in extending these protections to all businesses that offer private accommodations, not just contractors and employees.
16. Did only Republicans vote for this bill?
Answer: No. 11 Democrats voted for this bill in the N.C. House of Representatives and no Democratic Senators voted against it. In fact, Democratic Senators walked out to avoid voting on the issue at all because many were going to vote for it and they did not want show their division.
Indeed, eleven House Democrats voted for the bill. But of the fifteen members of the Democratic Senate Caucus who walked out, plus former senator Josh Stein, who resigned last Monday to focus on his run for attorney general, twelve have made public statements opposing HB 2.
17. Why did the Legislature call a special session to overturn the bathroom ordinance?
Answer: The new Charlotte ordinance, which would have required all businesses to change their restroom policies and take away the expectation of privacy people have when using the restroom, was going to go into effect on April 1 if no action was taken.
This special session cost taxpayers $42,000—and a whole lot of mockery from the rest of the country.
18. Is North Carolina at a disadvantage when it comes to recruiting jobs because it does not have ordinances like the one Charlotte was proposing?
Answer: No. In fact in the last 3 years without an ordinance like this, North Carolina has created the 6th most jobs in the country – over 260,000 net new jobs. We know of no examples of companies being recruited to North Carolina that have asked if the state has an ordinance like the one Charlotte was proposing.
False. Apple told Charlotte’s mayor that it would only expand into cities with an LGBT nondiscrimination ordinance. Siemens, AT&T, Microsoft, and Bank of America all urged Charlotte to pass the ordinance.
“The part we can’t quantify is, of this long list of companies, how could we know how many companies might decide to not expand or even never come here?” asks Representative Duane Hall, D-Wake. “It almost irreparably harms our reputation. I bet you, four years from now, legislators will stand up and say, ‘Not a single company pulled out of here.’ You see how many companies are saying that this is bad, but look at the flip side: How many companies have come out and said, ‘Thank you for doing this’? Zero.”
