RALEIGH, N.C. – Governor McCrory signed an executive order Tuesday that clarifies existing state law and provides new protection for North Carolina residents.
According to the Governor’s Office, Executive Order 93 does the following:
- Maintains the common sense gender-specific restroom and locker room facilities in government buildings and schools.
- Affirms the private sector’s right to establish its own restroom and locker room policies.
- Affirms the private sector and local governments’ right to establish its own non-discrimination employment policies for its own employees
- Expands the state’s employment policy for state employees to cover sexual orientation and gender identity
- Seeks legislation to reinstate the right to sue in state court for discrimination.
Pleased to see movement from @GovOfficeNC. Historic to include LGBT protections for state employees. Look forward to more dialogue.— Mayor of Charlotte (@CLTMayor) April 12, 2016
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Gov. Pat McCrory said Tuesday he is banning discrimination on the basis of sexual orientation and gender identify in state government personnel decisions and is seeking to reverse a provision of HB2 that made it harder for people to sue over discrimination on other grounds in court.
An executive order McCrory signed Tuesday leaves intact the primary provisions of HB2. They keep local governments from adopting ordinances prohibiting discrimination against LGBT people and require that bathrooms and locker rooms in state and local government buildings be used according to the "biological sex" of the user.
However, the executive order reaffirms that the private sector can set its own restroom and locker room policies and that private businesses and local governments can establish their own policies for their employees. That would be the case with or without McCrory's action, but the executive order makes it clear that that is the position of the state.
In a video, McCrory said he has "listened to the people of North Carolina, and the people of North Carolina are entitled to both privacy and equality. We can and we must achieve both of these goals."
Before HB2 was passed in a one-day special session of the General Assembly March 23, people who alleged that they were discriminated against on the basis of "race, religion, color, national origin, age, sex or handicap" could sue in either state or federal court.
HB2 ended the ability to bring those suits in state court, although those discriminated against on the basis of a handicap could rely on a different state law to sue.
Lawyers who handle employment discrimination lawsuits said the change was a blow to those discriminated against in the workplace because it is cheaper and easier to sue in state court and the period during which lawsuits can be filed in state court is longer than in federal court. A state lawsuit can be filed at a county courthouse while federal cases are heard in a much smaller number of federal courthouses around the state, a potential barrier for people who live in more remote areas.
Changing the part of the law that prevents the cases from being filed in state court would take action by the General Assembly, which returns to Raleigh for its regular session April 25.
McCrory's office said North Carolina is now one of 24 states that have protections for sexual orientation and gender identity for its employees.
One provision of the executive order says that private entities leasing property from the state can set their own policies regarding signage and use of bathrooms and locker rooms.
If, as it may do, that provision applies to local governments, it could lessen the chances of the NBA moving its all-star game to another city instead of holding it in Charlotte as planned.
The Charlotte Hornets lease Time-Warner Cable Arena, where the game is to be held, from owner Charlotte city government. Without the clarification in McCrory's order, policies in HB2 might apply in the arena. The order apparently allows the Hornets to decide bathroom and locker room signage and use questions.
Senate leader Phil Berger endorsed McCrory's actions in a statement.
“Gov. McCrory just put to rest the left's lies about HB 2 and proved it allows private and public employers, non-profits and churches the ability to adopt nondiscrimination policies that are stronger than state and federal law," Berger said. "But that fact is irrelevant to Roy Cooper and his left-wing political correctness mob with their agenda-driven allies in the liberal media, who will never stop trashing North Carolina until they achieve their goal of allowing any man into any women's bathroom or locker room at any time simply by claiming to feel like a woman.”
The North Carolina chapter of the American Civil Liberties Union panned McCrory's actions as inadequate.
“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," said Sarah Preston, acting executive director, in a statement. "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.
Here is the press release and statement from McCrory's office:
"Governor Pat McCrory has signed an Executive Order to protect the privacy and equality of all North Carolinians. Executive Order 93 clarifies existing state law and provides new protections for North Carolina residents.
Executive Order 93 does the following:
Maintains common sense gender-specific restroom and locker room facilities in government buildings and schools
Affirms the private sector’s right to establish its own restroom and locker room policies
Affirms the private sector and local governments’ right to establish non-discrimination employment policies for its own employees
Expands the state’s employment policy for state employees to cover sexual orientation and gender identity
Seeks legislation to reinstate the right to sue in state court for discrimination
With this Executive Order, the state of North Carolina is now one of 24 states that have protections for sexual orientation and gender identity for its employees.
“After listening to people’s feedback for the past several weeks on this issue, I have come to the conclusion that there is a great deal of misinformation, misinterpretation, confusion, a lot of passion and frankly, selective outrage and hypocrisy, especially against the great state of North Carolina,” said Governor McCrory. “Based upon this feedback, I am taking action to affirm and improve the state’s commitment to privacy and equality.”
Governor McCrory has posted a video statement on the Executive Order.
Transcript (of the video statement):
Hi, I’m North Carolina Governor Pat McCrory.
North Carolina proudly welcomes all people to live, work and visit our great state.
We didn’t become the ninth most populous state in the nation by accident. We have long held traditions of both ensuring equality for all of our citizens and our visitors, while also respecting the privacy of everyone.
We are also a state that strives to allow our people and businesses to be as independent as possible without overreaching government regulations.
These North Carolina values of privacy and equality came into conflict recently when the Charlotte City Council passed a new mandate that forced on businesses a city-wide ordinance of bathroom and locker room regulations, something frankly we had never seen or had before in that great city or in North Carolina.
Simply put, this government overreach was a solution in search of a problem.
In fact, the Charlotte City Council rejected this proposal less than a year ago.
In a letter prior to the most recent vote, I notified the Charlotte City Council that this unnecessary and intrusive mandate conflicts with basic expectations of privacy in the most private of settings.
Therefore, as I expected, the state took action on what was seen as government overreach.
You know, after listening to people’s feedback for the past several weeks on this issue, I have come to the conclusion that there is a great deal of misinformation, misinterpretation, confusion, a lot of passion and frankly, selective outrage and hypocrisy, especially against the great state of North Carolina.
But based upon this feedback, I am taking action to affirm and improve the state’s commitment to privacy and equality.
To that end, today I have signed an executive order with the goal of achieving that fine balance.
This executive order accomplishes the following:
First, it maintains common sense gender-specific restroom and locker room facilities in government buildings and in our schools, and when possible, encourages reasonable accommodations for families and those who have unique or special circumstances.
Second, the private sector can make its own policy with regard to restrooms, locker rooms and/or shower facilities. This is not a government decision. This is your decision in the private sector.
Third, I have affirmed the private sector and local government’s right to establish its own non-discrimination employment policies.
And fourth, as governor, I have expanded our state equal employment opportunity policy to clarify that sexual orientation and gender identity are included.
And fifth, I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts.
Simply put, I have listened to the people of North Carolina, and the people of North Carolina are entitled to both privacy and equality. We can and we must achieve both of these goals.
Now I know these actions will not totally satisfy everyone, but the vast majority of our citizens want common sense solutions to complex issues.
This is the North Carolina way.
Thank you very much, and may God continue to bless the great state of North Carolina."
The Asheville Citizen-Times contributed to this report.