In response to outcry over North Carolina’s unprecedented anti-LGBT law, Republican Governor Pat McCrory issued an executive order to “clarify” the law. However, the executive order affirmed the anti-LGBT portion of the law banning transgender people from using restrooms and locker rooms that do not match the gender listed on their birth certificate in public schools and government buildings. The executive order also left in place the provision banning municipalities from enacting local public accommodation nondiscrimination ordinances protecting LGBT people. The executive order did extend state employment nondiscrimination protections to LGBT people, as well as reinstituted the authority of local government to establish employment and housing nondiscrimination protections.
North Carolina Recently Passed A Law Overturning LGBT Nondiscrimination Protections. On March 23, the North Carolina state legislature passed “sweeping” legislation, House Bill 2, that invalidated local governments' ability to provide legal protections for LGBT people. McCrory signed the bill into law hours after it passed. HB2 was formulated in response to a local ordinance passed in Charlotte that provided nondiscrimination protections for LGBT people, including allowing transgender individuals to use the bathroom that aligns with their gender identity. [The Charlotte Observer, 3/23/16; North Carolina General Assembly, accessed 4/13/16]
The Law Bans Transgender People From Accessing Bathrooms Aligned With Their Gender In Public Facilities. North Carolina’s HB2 specifically bans transgender people from bathrooms and locker rooms in public buildings, such as schools and government agencies, that do not correspond to the gender listed on their birth certificate:
(b) Local boards ofeducation shall require every multiple occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex.
(b) Single-Sex Multiple Occupancy Bathroom and Changing Facilities. – Public agencies shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex. [House Bill 2, accessed 4/12/16]
Gov. McCrory Issued An Executive Order Adding Nondiscrimination Employment Protections For State Employees. On April 12, in response to the backlash over HB2, McCrory released an executive order adding “sexual orientation” and “gender identity” to the State’s human resources nondiscrimination policy. The executive order also added a request for legislation restoring the right to sue in state court over discrimination claims, as under HB2 plaintiffs would be required to sue in federal court over claims of workplace discrimination [Executive Order No. 93, 4/12/16]
The Executive Order Maintains HB2’s Bans On Bathroom Access For Transgender People. McCrory’s executive order affirms HB2’s provisions requiring transgender people to use bathroom facilities that correspond with the gender listed on their birth certificate in government buildings and schools:
Section 3. Restroom Accommodations
In North Carolina, private businesses can set their own rules for their own restroom, locker room and shower facilities, free from government interference.
Under current law, every multiple occupancy restroom, locker room or shower facility located in a cabinet agency must be designated for and only used by persons based on their biological sex. Agencies may make reasonable accommodations upon a person’s request due to special circumstances.
Therefore, when readily available and when practicable in the best judgment of the agency, all cabinet agencies shall provide a reasonable accommodation of a single occupancy restroom, locker room or shower facility upon request due to special circumstances. [Executive Order No. 93, 4/12/16]
ACLU Of NC Called Out McCrory’s Executive Order As A “Poor Effort.” ACLU of North Carolina acting executive director Sarah Preston called the executive order a “poor effort to save face,” noting that the order leaves in place the provisions of HB2 that specifically target transgender people:
Gov. McCrory’s actions today are a poor effort to save face after his sweeping attacks on the LGBT community, and they fall far short of correcting the damage done when he signed into law the harmful House Bill 2, which stigmatizes and mandates discrimination against gay and transgender people. With this executive order, LGBT individuals still lack legal protections from discrimination, and transgender people are still explicitly targeted by being forced to use the wrong restroom.
Efforts to divide the LGBT community by extending limited protections but leaving in place the rules mandating discrimination against the transgender community will only strengthen our resolve to fight back against this discriminatory and misguided legislative action. We call on Gov. McCrory and the North Carolina legislature to repeal House Bill 2 and replace it with full non-discrimination protections for all LGBT people. [ACLU of North Carolina, 4/12/16]
The Washington Post Initially Misreported On The Executive Order
The Washington Post Changed Headline And Issued A Correction. Initially, The Washington Post’s headline conveyed that McCrory had signed an executive order allowing private businesses to set their own rules regarding bathroom access -- when in fact this was the case when HB2 was originally passed. The original text of the article also falsely stated that executive order “partially” dropped the provision of the order banning transgender people from bathrooms that do not match the gender on their birth certificate. The Post issued a correction noting that the executive order actually affirmed the restrictions on bathroom access in public facilities for transgender people:
[Washington Post, 4/12/16]
[Washington Post, 4/12/16]
McCrory said in his video announcement that his executive order “maintains common sense gender-specific restroom and locker facilities in government buildings and in our schools,” but said that private businesses could continue to set their own rules for bathrooms and locker rooms. (In an earlier version of this post, we noted that McCrory’s executive order said businesses could decide their own bathroom policies, which was already the language of the bill and something McCrory was just affirming rather than changing. Incorrect earlier text here.) [Washington Post, 4/12/16]