North Carolina Public Facilities Privacy & Security Act (HB2/S.L. 2016-3)

A lot of excitement about North Carolina lately, and not just the Tar Heels heading to the Final Four (I’m sure Governor Cuomo wishes he could force Syracuse to boycott the game, just as he surely has banned all official travel to the Middle East).  Everyone’s talking about the “Anti-LGBT” law (if anything, it’s anti-T ).  Anyway, I read it so you wouldn’t have to. Here’s a summary.

A summary of North Carolina House Bill #2 (2016) enacted into law in March 2016.

PART I: SINGLE-SEX MULTIPLE OCCUPANCY BATHROOM AND CHANGING FACILITIES

  1. NC State Govt Agencies, including public universities and community colleges (NCGS 143-76) Public Schools (local school systems) (NCGS 115C-521.2).
    1. Multiple occupancy bathrooms in public schools must be limited by biological sex. Therefore, the limitation is objective, not based on someone’s subjective identification with a sex other than the biological sex.
    2. Accommodations for others to use other bathrooms, single occupancy bathrooms and faculty bathrooms is specifically permitted.

PART II: STATEWIDE CONSISTENCY IN LAWS RELATED TO EMPLOYMENT AND CONTRACTING

NCGS 99-25 is the States rules governing employment, including the setting of a minimum wage, limitations on youth employment, overtime obligations, withholding of wages, recording keeping requirements.  It’s amended to add that its provisions supersede those of local ordinances restricting 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. . . .”  There are a few exceptions.

Sections 153A-449(a) and 160A-20.1(a) prohibit local government from using a backdoor to do change the legislature’s requirements.  It already was in the law, but was amended to clarify that the backdoor can’t be used in a manner inconsistent with State Law, which would prohibit additions to protected classes.

PART III: PROTECTION OF RIGHTS IN EMPLOYMENT AND PUBLIC ACCOMMODATIONS

Section 143-422.2 is NC’s general nondiscrimination law.  It previously announced the policy to protect rights related to employment and public accommodation from discrimination “on account of race, religion, color, national origin, age, sex or handicap.”  The legislature added “biological” before sex, which cannot be considered a change to the original intent of the law, as sex is a biological term (gender isn’t).

It also makes supreme the State law of the state by preempting any similar laws from any subdivisions of the State. This is reflective of long term trend in the law to make uniform the laws within and among states so that individuals and businesses will not have cope with inconsistent laws.

What may be lost on commentators who worry that there is no longer any enforcement mechanism for non-discrimination laws are confused by amendments to Section 143-422.3.  Prior to amendment, it permits (but does not obligate) the Dept. of Administration to take referrals from the federal EEOC. The amendment clarifies that Article 49A of Section 143 alone does not support a right to bring a civil suit under its terms.  This is because the Article is an expression of intent, or policy – not the operative provisions implementing the policy.  Those terms are found, among other places, in the Sections described above.

Section 143-422.13 is a substantially similar statement of policy and preemption with respect to public accommodations as the employment provisions in 422.1-3 above.

And, that’s about it.

You’ll notice there seems to be nothing in the law requiring businesses to ban the transgendered from choosing their preferred bathroom. It remains the choice of the business to allow them or not.