— North Carolina Gov. Pat McCrory (R), announcing Executive Order 93, April 12, 2016
North Carolina has become a battleground for LGBT rights after the state passed an anti-discrimination law that excluded protections for discrimination based on sexual orientation or gender identity. The law is best known for requiring transgender people to use the bathroom in public buildings that match the gender on their birth certificate.
The backlash was swift and intense. McCrory issued an executive order intended to assuage the concerns of those who believed the law would legalize rampant discrimination. He said he wanted to set straight the “great deal of misinformation, misinterpretation, confusion.” Yet his announcement on April 12 added to the confusion as to what actually changed.
Let’s take a look at whether his words have any meaning in this debate: What did the law do, and what did the executive order change?
State lawmakers introduced House Bill 2 after the Charlotte City Council expanded its nondiscrimination ordinance to include gender identity and sexual orientation. The council adopted the change in February. The most controversial provision allowed transgender men and women to use the bathroom of the gender with which they identify.
The state General Assembly convened a special session before the ordinance could take effect April 1. The lawmakers said the ordinance would have taken away “the expectation of privacy people have when using the restroom.” McCrory signed HB2 into law, banning local governments from passing nondiscrimination ordinances.
Changes under HB2
The law had a broad impact on discriminatory policies in the state. Its major provisions:
- Created a mandatory statewide anti-discrimination policy with protections based on “race, religion, color, national origin, age, biological sex or handicap.” Biological sex is defined as “the physical condition of being male or female, which is stated on a person’s birth certificate.” It excluded protections based on sexual orientation or gender identity.
- Required people to use bathrooms and changing facilities in government buildings and public schools that correspond with their biological sex. Agencies could provide other accommodations, such as single-occupancy bathrooms. This did not affect private businesses, companies or universities.
- Banned local governments from requiring private contractors to have anti-discrimination employment policies that include sexual orientation or gender identity, or to impose restrictions such as minimum wage or paid sick leave.
- Prohibited private individuals from suing the state over discriminatory firing, according to employment attorneys in the state. Residents can still file federal discrimination lawsuits.
Supporters defended the law as a necessary measure to protect privacy and religious liberty and to stop local government overreach. McCrory said the Charlotte City Council’s ordinance was “unnecessary and intrusive” and conflicted with basic expectations of privacy.
But national backlash only grew. Civil liberties groups sued the state over the law. State officials reported event cancellations and losses in tourism revenue over the controversy. National sports franchises and major corporations criticized McCrory for excluding sexual orientation and gender identity from nondiscrimination protections.
In an open letter to McCrory, chief executives of more than 80 corporations (including Apple, Google, Hilton and Starbucks) said:
“We are disappointed in your decision to sign this discriminatory legislation into law. The business community, by and large, has consistently communicated to lawmakers at every level that such laws are bad for our employees and bad for business. This is not a direction in which states move when they are seeking to provide successful, thriving hubs for business and economic development. We believe that HB 2 will make it far more challenging for businesses across the state to recruit and retain the nation’s best and brightest workers and attract the most talented students from across the country.”
McCrory blamed national media for “smearing the state in an inaccurate way” and misleading the public that businesses would be required to change their nondiscriminatory policies. Further, he insisted that “we have not taken away any rights that currently exist in any city in North Carolina” — which PolitiFact North Carolina rated “false.”
Changes under executive order
The elements of McCrory’s April 12 executive order leave the law’s major provisions untouched. As our colleague Amber Phillips wrote at The Fix: “The whole thing gives the appearance that McCrory has backed down under pressure, but it’s unlikely to actually alleviate any pressure on him.”
Among its major provisions, Executive Order 93:
- Called on the state legislature to reinstate North Carolinians’ right to sue in state court for discrimination.
- Expanded state employees’ discrimination protections to cover sexual orientation and gender identity. But it’s unclear whether he has the authority to make this change, since HB2 limited nondiscriminatory policies to “biological sex.” Katharine Bartlett, a former dean of Duke Law School who now teaches employment discrimination and gender and the law there, said it’s unclear that McCrory has the authority to overrule state statute by expanding state employees’ rights.
It also “affirmed,” i.e., restated, two points about HB2:
- That private businesses can set their own bathroom policies. But businesses already had this right under the law.
- That private businesses and local governments can establish their own non-discrimination policies. But again, businesses had this right under the law. For local governments, it’s not clear whether they really can set their own non-discrimination policies, since state law preempts local control. Some local governments have said they wouldn’t be able to, since they have to abide by state law.
“This executive order either does not address the most significant provisions of HB2, or does so in a way where it’s not clear he has the authority to do so,” Bartlett said.
A governor’s executive order covers the executive branch, and McCrory can’t use it to overturn state law, said Michael Gerhardt, a constitutional law expert and professor at the University of North Carolina School of Law. Moreover, the executive order maintains the controversial bathroom provision.
“It does not address the bathroom issue — and, even if it did, it could not undo the new state law, which he had signed,” Gerhardt said. “I do not think the order does much, if anything, to address the concerns raised by and behalf the LGBT community.”
Representatives from the governor’s office did not provide further explanations of McCrory’s statement.
The Pinocchio Test
We took a look at whether McCrory’s announcement accompanying his executive order had much meaning in this debate. By saying he is “taking action to affirm and improve the state’s commitment to privacy and equality” through his executive order, McCrory creates the illusion that there will be more changes than he can actually deliver as governor.
But an executive order can’t undo state law. When you start actually digging into the executive order, the major provisions of HB2 remain untouched. He simply regurgitates the rights of businesses that already were in the law, which were never really disputed in the feedback from corporations and the public. He expanded state employees’ discrimination protections to cover sexual orientation and gender identity. Critics acknowledged that was a good step, but it’s not yet clear whether he has legal authority to do so.
The feedback — which McCrory attributes to misinformation in the media — has been centered on the bathroom provision and excluding gender identity and sexual orientation in anti-discrimination policies. McCrory says he is responding to that feedback through his executive order. But his executive order does nothing to address those two areas (at least not without a legal battle for state employees).
We wavered between Two and Three Pinocchios. McCrory bemoans the “misinformation, misinterpretation, confusion … selective outrage and hypocrisy,” but his own vague language is misleading, which earns him at least Two Pinocchios. During a time when tensions and emotions run high, the state’s chief executive has the duty to set the record straight for his constituency. He said the executive order was a reaction to the strong feedback — as if it were a resolution. But it’s not, and the mendacity tips his rating to Three Pinocchios. We wish we could give Three Fig Leaves — which is what this announcement is — but, alas, will stick to Pinocchios.
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