In a press release Tuesday, North Carolina Governor Pat McCrory said that he has signed a new executive order to protect workers from discrimination based on their sexual orientation or gender identity. The governor also released a video statement on Executive Order 93.
Breaking: NC Gov McCrory signs executive order in response to fallout of anti-LGBT law. It takes these modest steps: pic.twitter.com/TxABhwhcdg
— Dominic Holden (@dominicholden) April 12, 2016
The executive order comes on the same day Deutsche Bank stated it would not be expanding its Cary, N.C. operation with 250 new jobs because of concerns over the anti-LGBT law McCrory signed in March, HB2.
“After listening to people’s feedback for the past several weeks on this issue, I have come to the conclusion that there is a great deal of misinformation, misinterpretation, confusion, a lot of passion and frankly, selective outrage and hypocrisy, especially against the great state of North Carolina,” said Governor McCrory in the video statement. “Based upon this feedback, I am taking action to affirm and improve the state’s commitment to privacy and equality.”
But does the executive action bring the state closer to equality for all?
The mayor of Charlotte tweeted that she was looking forward to more dialogue with McCrory and that she was “pleased to see movement” from the governor’s office.
Pleased to see movement from @GovOfficeNC. Historic to include LGBT protections for state employees. Look forward to more dialogue.
— Mayor of Charlotte (@CLTMayor) April 12, 2016
Yet, of the five points in Executive Action 93, four of them either affirm existing legislation or are symbolic gestures that would do little in practice, while the fifth corrects a flaw in HB2 but doesn’t offer any protections for LGBT people.
Perhaps most importantly, the executive action does nothing to address the ban on transgender people from using bathrooms that correspond to their gender identity.
The executive action has not given municipalities the right to enact anti-discrimination policies, a right which was stripped by HB2.
— Rep. Grier Martin (@GrierMartin) April 12, 2016
“This bill essentially ties a noose around the necks of the cities and counties,” said N.C. Senate Democrat Dan Blue, “and it smothers their ability to govern in a way that their citizens think they ought to.”
Municipalities are still stripped of their ability to offer protections based on gender identity and sexual orientation, or any other characteristic aside from those designated by HB2
Gov, answer this: If state employees deserve LGBT protection, why not city employees, as prohibited by #HB2? That's a tough one.
— Sen. Jeff Jackson (@JeffJacksonNC) April 12, 2016
From the first point in Governor McCrory’s executive action, employees of the state government and children in public schools are subject to the governor’s “common sense” declaration that restrooms and locker rooms may only be used if they correspond with a person’s sex as determined at birth, as mandated by HB2. The governor has doubled-down on on this highly-discriminatory point.
The second and third points, which reaffirm the private sector’s right to make decisions about bathrooms and create non-discrimination employment policies, are completely symbolic. The rights of the private sector to create bathroom rules for their employees and grant them protections against discrimination based on gender identity and sexual orientation were never threatened by HB2.
“Under current law, every multiple occupancy restroom, locker room or shower facility located in a cabinet agency must be designated for and only used by persons based on their biological sex,” the Executive Order states. “Agencies may make reasonable accommodations upon a person’s request due to special circumstances.”
The governor’s fourth point looks promising for extending LGBT protections to state employees. They would, however, continue to be subject to the state’s discriminatory bathroom policies because they work in government buildings, which, the governor reaffirmed in his first point, would require transgender people to use bathrooms in conflict with their gender identities. The governor has not addressed this inconsistency.
— Sen. Jeff Jackson (@JeffJacksonNC) April 12, 2016
The fifth point in the ordinance does fix a highly disturbing component of HB2–the ban on state discrimination lawsuits. Before HB2 was passed, people who allege they were discriminated against based on “race, religion, color, national origin, age, sex or handicap” could sue in state or federal court.
After HB2 was passed, all discrimination complaints would be handled by the state Human Relations Commission and nobody could sue someone for discrimination in state court. This would be ineffective, Democrats pointed out in debates over HB2, because Republican gutted the commission’s budget in 2015. Under an different state law, disabled people would still be able to sue.
Lawyers who handle employment discrimination lawsuits said the change was a blow to those discriminated against in the workplace because it is cheaper and easier to sue in state court and the period during which lawsuits can be filed in state court is longer than in federal court. A state lawsuit can be filed at a county courthouse while federal cases are heard in a much smaller number of federal courthouses around the state, a potential barrier for people who live in more remote areas.
Unfortunately, with the state still not offering protections for LGBT people (aside from LGBT state-employees, confusingly), state discrimination lawsuits would not help them all.
In a statement by the NC chapter of the ACLU, the organization called the executive action inadequate.
“Gov. McCrory’s actions today are a poor effort to save face after his sweeping attacks on the LGBT community, and they fall far short of correcting the damage done when he signed into law the harmful House Bill 2, which stigmatizes and mandates discrimination against gay and transgender people,” said Sarah Preston, acting executive director, in a statement. “With this executive order, LGBT individuals still lack legal protections from discrimination, and transgender people are still explicitly targeted by being forced to use the wrong restroom.
Whether Executive Order 93 will halt the exodus of big business from North Carolina or prevent the NBA from moving its 2017 All Star game out of Charlotte is anyone’s guess.
Half measures aren't enough. We need to repeal #HB2.
— NC Senate Democrats (@NCSenateDems) April 12, 2016