Five years after Charlotte’s expanded nondiscrimination ordinance for the LGBTQ community touched off a standoff with the Republican-led General Assembly, the City Council is ready to consider a new ordinance.
City staff emailed council members a copy of the new ordinance Monday.
It would prohibit businesses from discriminating against any customer based on sexual orientation, gender identity and expression or family status. There are already existing protections for customers based on categories such as their race and ethnicity, gender and age.
The ordinance would also give legal protections in employment to the LGBTQ community, as well as workers based on their race, sex, national origin and other characteristics. City Attorney Patrick Baker said that part of the ordinance may be controversial.
NEW: Five years after HB2, #cltcc has the new language for 2nd attempt at expanded nondiscrimination ordinance. It gives legal protections to gender identity/expression; sexual orientation; natural hairstyles. The city says the controversial part will be a foray into employment: pic.twitter.com/s61gszQsqi
— Steve Harrison (@Sharrison_WFAE) July 26, 2021
The new ordinance would not have any regulations allowing people to use the bathroom that matches their gender identity. Four years ago, the General Assembly prohibited cities and towns from passing new rules about bathrooms when it repealed House Bill 2, which had become known nationwide as "the bathroom bill" and led to widespread controversy for North Carolina.
Today, transgender people are in a gray area in terms of where they go to the bathroom. There are no state laws saying which facility they have to use, but there are also no laws giving them protections to use the bathroom that matches their gender identity.
Charlotte’s ordinance would also prohibit businesses with fewer than 15 workers from discriminating against their employees based on gender identity and gender expression, sexual orientation or family status.
The U.S. Supreme Court gave legal protections last year to LGBTQ workers in its decision in Bostock vs. Clayton County. But Baker said that ruling generally only applies to businesses with 15 or more employees.
The city is trying to ensure workers in all businesses are protected, Baker told council members. But he said the city could be sued.
"There is no applicable case law directly on point on this issue and there are good legal arguments both for and against the proposition," Baker wrote. "If the ordinance is challenged and a court ultimately determines that we do not have the legal authority to regulate private employment, the most likely outcome would be to be enjoined from further enforcement of the ordinance and an award of attorney’s fees to the opposing side."
Baker added that "for Council, this will ultimately come down to your level of legal risk tolerance."
The ordinance would also prohibit discrimination based on someone’s hairstyle — a move meant to help Black residents.
City Council is scheduled to discuss the ordinance on Aug. 2. A final vote could come a week later on Aug. 9.
The Backstory With HB2
In the spring of 2016, Charlotte City Council expanded its existing nondiscrimination ordinance to give legal protections to gay, lesbian and transgender people. The ordinance also allowed for people to use public restrooms that matched their gender identity.
The bathroom provision was the most controversial part of the city’s ordinance, and it led the General Assembly to pass HB2. That law, signed by former Charlotte Mayor and then Gov. Pat McCrory, nullified the city’s expanded ordinance, and it required that people use the bathroom that matched the gender on their birth certificate in all government-owned buildings, like the airport and Charlotte Convention Center.
HB2 led to worldwide attention placed on Charlotte and the state. Several businesses boycotted North Carolina, including the NBA, which pulled its 2017 All-Star Game from Charlotte.
HB2 was repealed in 2017. But in doing so, lawmakers prohibited cities and towns from passing any regulations related to bathrooms — and they placed a moratorium on cities and towns passing new nondiscrimination ordinances until January 2021.
Since then, severalNorth Carolina cities and towns, including Durham and Carrboro, have passed ordinances to give the LGBTQ community legal protections.
