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McCrory's Executive Order Doesn't Order Much

NC Government

Three weeks ago, Governor Pat McCrory signed House Bill 2 into law. At the time he wrote “this bill does not change existing rights under state or federal law.”

On Tuesday, McCrory walked back that statement a bit and is now calling for a section of the controversial law to be repealed. It’s all part of an executive order issued by McCrory. But in reality, the measure doesn’t accomplish all that much.

In announcing the executive order, Governor Pat McCrory made the measure seem like some kind of grand bargain. A way to protect “privacy and equality of all North Carolinians.”

But read through the text and questions arise.  

For weeks, Governor Pat McCrory and other top Republican lawmakers have said the backlash to House Bill 2 was manufactured by activists and the liberal media. Cooked up to besmirch North Carolina’s reputation. Just days after signing the bill into law, McCrory described it this way,"There’s a very well coordinated campaign, national campaign, which is distorting the truth, and frankly smearing our state in an inaccurate way."

Since that time PayPal canceled plans to bring 400 jobs to Charlotte. Deutsche Bank paused its plans to expand by 250 jobs in Cary. Bruce Springsteen canceled a concert, and more than 120 CEOs and business leaders called on the governor and General Assembly to repeal the law. But Tuesday, McCrory said it's what he’s heard from average North Carolinians that lead to this executive order. "Based on this feedback, I’m taking action to affirm the state’s commitment to privacy and equality."

But the first three tenants of the Executive Order change nothing.

McCrory lays out those points in a video statement.


First, he says the executive order "maintains common sense gender-specific restroom and locker room facilities in government buildings and in our schools." House Bill 2 requires people use the facility corresponding with the sex listed on their birth certificate.

Second, McCrory says, "the private sector can make its own policy with regard to restrooms, locker rooms and/or shower facilities." A carve out already allowed by House Bill 2.

And third, says McCrory, "I have affirmed the private sector and local government’s right to establish its own non-discrimination employment policies." But only for their own employees. Again, a point granted by House Bill 2. Which also bars municipalities from increasing the wage in their jurisdictions to more than the $7.25 an hour mandated by federal law.

But a key point of controversy over this law is the fact it bans local governments from expanding protections to include LGBT individuals in employment, housing, as customers and the like.

Now McCrory says,"as governor, I have expanded our state equal employment opportunity policy to clarify that sexual orientation and gender identity are included."

It sounds like a big move, but in reality, it may not be. "It can only apply to state employees," says Norma Houston, an attorney and teacher at the UNC School of government, "and arguably only apply to state employees who work in cabinet agencies."

An executive order by a governor is like an executive order from the president – it only applies to those who work for the executive branch. In North Carolina, Houston says, that means cabinet level agencies like "the Department of Public Safety, the Department of Administration, the Department of Health and Human Resources, etc." But Houston adds, not employees of other agencies that don’t have their heads appointed by the governor, "such as the judicial branch, the university system and the community college system."

So McCrory’s move to expand protected groups affects only a subset of state employees. And McCrory never addresses just why it’s important to expand protections for those workers and not for North Carolinians writ large.

The final action of the executive order is aspirational in nature but it is also an important recognition of the law.

Ever since it was introduced and signed, Republican politicians, including McCrory, have said House Bill 2 is just about bathrooms. Here’s McCrory just days after signing HB 2 into law, "We have not taken away any rights that currently existed in any city in North Carolina. From Raleigh to Durham, to Chapel Hill to Charlotte."

A claim that has never been true.

"This law eliminates the ability for individuals to bring claims under State law if they've experienced discrimination. That means instead of going about the daily course of business an individual would have to file a lawsuit in federal court," explains Sarah Warbelow is the legal director of the Human Rights Campaign.

And filing in Federal Court is more expensive, harder to prove and has a shorter window in which to file a case.

On Tuesday, McCrory fully acknowledged this aspect of the law. And he went a step further. "I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts." On this point, it looks like McCrory does have some allies. Senator Jeff Tarte is a Republican from Mecklenburg County. "The initial reactions around the hallway are pretty positive. So I think there’s a tremendous amount of support." Tarte voted for House Bill 2. 

At the end of his video statement on Executive Order 93, Governor McCrory said, "I know these actions will not totally satisfy everyone."

And indeed, that is the case. Chris Brook is legal director of the North Carolina chapter of the ACLU says "House Bill 2 required the transgender community to use the wrong restroom. The restroom that does not accord with their gender identity and gender expression.  The executive order does nothing to change that."

The conservative Family Research Council agrees. They write “While we don’t think Governor McCrory needed to provide additional clarity, his executive order does not change the law he just signed”.