N.C. faces backlash after passing of HB 2By Yasmine Regester and Afrique I. Kilimanjaro / April 1, 2016
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North Carolina is facing backlash from the passing of a law that requires transgendered individuals to use bathrooms based on their sex at birth. The bill also allows businesses to discriminate based on sexual orientation.
House Bill 2, the Public Facilities Privacy & Security Act, passed the state House of Representatives by an 82-26 vote in a special session and the state Senate by a 32-0 vote on Wednesday, March 23. Most Democratic members of the state senate, led by Sen. Dan Blue, walked out of the proceedings in protest of the bill.
On March 28, just a few days after N.C. Governor Pat McCrory signed the bill into law, Lambda Legal, the American Civil Liberties Union, ACLU of North Carolina, and Equality North Carolina filed a federal lawsuit against the governor, Attorney General Roy Cooper, and the University of North Carolina. The suit was filed on behalf of three North Carolinians: Joaquín Carcaño, 27, a UNC-Chapel Hill employee; Payton McGarry, a 20-year-old UNC-Greensboro student; and Angela Gilmore, 52, a lesbian and North Carolina Central University law professor. The suit was filed in the U.S. District Court for the Middle District of North Carolina.
“HB 2 is hurtful and demeaning. I just want to go to work and live my life. This law puts me in the terrible position of either going into the women’s room where I clearly don’t belong or breaking the law,” said plaintiff Joaquín Carcaño, who is a transgender male. “But this is about more than bathrooms, this is about my job, my community, and my ability to get safely through my day and be productive like everyone else in North Carolina.”
Chris Brook, Legal Director of the ACLU of North Carolina, called the law ‘cruel and insulting’ saying it is an attack on fairness in employment, education and local governance.
“We’re challenging this extreme and discriminatory measure in order to ensure that everyone who lives in and visits North Carolina is protected under the law,” said Brook. “HB 2 aims to override local school board policies, local public accommodations laws, and more.”
The complaint argues that HB 2 is unconstitutional because it violates the Equal Protection and Due Process clauses of the Fourteenth Amendment, because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The complaint says the law also violates Title IX by discriminating against students and school employees on the basis of sex.
“Pat McCrory proved that he does not have the best interest of North Carolina in mind. He signed the worst anti-LGBT bill in the entire nation,” said Chris Sgro, executive director of Equality NC in a statement. “The bill tears away at the fabric of my community by overturning and preempting vital protections for gay and transgender people. He goes back on his word again by signing legislation coming out of an expensive and unnecessary special session.”
North Carolina is not only facing a lawsuit, but stands to lose millions of dollars in revenue if companies decide to not to do business in the state.
Red Hat, Biogen, and Dow Chemical, all Raleigh-based companies, have spoken in opposition to the law, as well as businesses like American Airlines, IBM, Apple, Google, PayPal, the NCAA (National Collegiate Athletic Association) and the NBA (National Basketball Association). NBA representatives have said the legislation may have an impact on whether the 2017 All Star Game will still be held in Charlotte.
Other municipalities are also speaking out against anti-LBGTQ legislation. The Chapel Hill City Council passed a resolution at its March 28 meeting demanding a repeal of HB 2. Georgia Gov. Nathan Deal vetoed a similar house bill on March 28 that would have allowed clergy to refuse to perform marriage rites that violated their religious beliefs. It would have also allowed churches and religious groups to decline services to someone based on their faith.
Although N.C. Attorney General, Roy Cooper is listed as a defendant in the lawsuit, he has spoken out against McCrory and the legislation stating that he will not defend it in federal court.
“North Carolina isn’t about fear. It’s not about hate. And we can’t allow Governor McCrory to tell the world that’s who we are,” said Cooper. “Governor McCrory’s new law threatens the civil rights of our friends, our neighbors, and our families. This law is bad for North Carolina and bad for business.”
McCrory signed HB 2 on March 23, to override a Charlotte ordinance that would have allowed transgender people to use the restroom of their gender identity. HB 2 defines a person’s biological sex as that stated on their birth certificate.
“The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte,” McCrory said in a statement.
The bill not only supersedes local ordinances, but also prohibits cities from enacting ordinances that provide broader protections than those laid out by the state.
HB 2 also includes a provision on minimum wage which bars local ordinances and regulations from imposing any requirement “upon an employer pertaining to compensation of employees, such as the wage levels of employees, hours of labor, payment of earned wages, benefits, leave or well-being of minors in the workforce.”
Another part of the bill forbids local governments from setting a mandate or provision that requires a private contractor to follow certain employment and wage requirements in order to bid on projects.
Part 2 of the bill, related to employment and contracting, specifically states, “A city may not require a private contractor under this section to abide by regulations or controls on the contractor’s employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public as a condition of bidding on a contract or a qualification-based selection, except as otherwise required by State law.”
Many locals are concerned that the bill’s language may impact Greensboro’s Minority and Women’s Business Enterprise program, which provides minorities and women equal opportunity to participate in all aspects of city contracting. Greensboro City Council Rep. Sharon Hightower (District-1) told the Peacemaker that she has asked the city manager and city attorney for clarification on HB 2 as it may specifically affect MWBE. That information is still forthcoming.
If the MWBE programs of N.C. municipalities are affected, people of color, women and members of the LGBTQ community could be excluded from government contracting. The sad irony is that voters, many of them African American, women and LGBTQ, recently approved a $2 billion bond package for state facilities improvements.
Those taxpayer funded government projects require a bidding process as well as MWBE participation; programs that may be in jeopardy.
“It was absolutely intentional,” said Congresswoman Alma Adams, representative of the North Carolina 12th Congressional District. Adams, who served in the N.C. House for 20 years was a leader in promoting an increase in the state’s minimum wage which occurred in 2006. Prior to that, North Carolinians went nine years without a minimum wage increase.
“For a General Assembly that continues to talk about local control, to want to control the local municipalities from Raleigh is inappropriate. If we’re trying to improve the quality of life for our citizens, then the counties should be able to regulate how they see fit, based on what they know about a particular area. I am baffled at what they could be thinking. Legislation to keep people down, it is discrimination against the working class and the poor,” said Adams.
Guilford County Attorney Mark Payne said the county already has gender-based and non-gender based public accommodations. Payne also stated that he did not believe HB 2 would change the way the county pays its employees.
Jake Keys, Communications Manager for the City of Greensboro, stated that the legal team is still reviewing the new legislation before making a statement on how it will affect the Greensboro community.
In August 2015, the Greensboro City Council passed a resolution that would give city employees a pay increase to $10 an hour for roster and seasonal employees, except for those at the Greensboro Coliseum; and $12 an hour for employees who also receive benefits. The goal has been to achieve a minimum wage for city employees to $15 an hour by 2020. As it stands, the state minimum wage paid by private companies is $7.25.
According to Gov. McCrory’s office, the minimum wage provision would not affect existing contracts, only new ones.
Calls for comment from N.C. House Reps. Jon Hardister (R-59) and John Faircloth (R-61), supporters of the bill, were not returned.