Raleigh, N.C. — Gov. Pat McCrory says the General Assembly should reverse a portion of the recently passed House Bill 2 but leave in place provisions that deal with locker room and restroom usage.
Specifically, the governor called on lawmakers to reverse a part of the law, known as the Public Facilities Privacy & Security Act, which prevents North Carolina workers who believe they've been wrongfully fired due to sex, age, race or gender from suing in state court.
"I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts," McCrory said in a video announcement Tuesday. "Simply put, I have listened to the people of North Carolina, and the people of North Carolina are entitled to both privacy and equality. We can and we must achieve both of these goals. Now, I know these actions will not totally satisfy everyone, but the vast majority of our citizens want common-sense solutions to complex issues."
At the same time, McCrory lashed out at critics, saying that he had "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."
In particular, the governor defended a section of the bill that overturned a Charlotte ordinance that would have allowed transgender people to use the bathroom of their choice. House Bill 2 prohibits cities from imposing bathroom regulations on private businesses and mandates that people in government-owned buildings use the restroom that corresponds to the gender on their birth certificate rather than the one in which they would be most comfortable.
McCrory issued an executive order to clear up what he viewed as shortcomings in the bill.
Some of the order's provisions would do little. For example, the order reinforces that private businesses can set their own policies with regard to bathroom usage. That's something House Bill 2 already allows. McCrory's order does interpret the law as allowing private businesses that lease space in government-owned buildings to set their own restroom and locker room policies.
Although McCrory includes his request to roll back the provision on wrongful termination lawsuits in the executive order, only the General Assembly can carry out such a rollback.
"Gov. McCrory just put to rest the left's lies about HB 2 and proved it allows private and public employers, non-profits and churches the ability to adopt nondiscrimination policies that are stronger than state and federal law," Senate President Pro Tem Phil Berger said through a written statement.
"Governor McCrory’s Executive Order affirms the importance of the actions the General Assembly took in passing the Bathroom Bill to protect North Carolina citizens from extremists’ efforts to undermine civility and normalcy in our everyday lives. Private businesses are free to decide for themselves restroom, dressing room and non-discrimination employment policies that best suit their business and employee needs without inconsistent mandates by cities and counties," House Speaker Tim Moore said in a statement.
Neither Berger, R-Rockingham, nor Moore, R-Cleveland, addressed whether the legislature would take up a repeal of the lawsuit provision.
Rep. Nelson Dollar, R-Wake, said House leaders would consider the request, but he defended the change, saying he believes federal court is a better option for pursuing job discrimination claims.
"There was some concern that had been expressed about losing the state court option, which is frankly a smaller option, a more limited option," Dollar said. "When you look at those two, the remedies in the federal system are quite a bit more robust."
Melissa Essary, a law professor at Campbell University, said she was stunned the wrongful termination lawsuit provision was even part of the bill to begin with, and she lauded the effort to repeal it.
"It should go away. I don’t think the legislators themselves even knew it was there," Essary said. "Maybe he’s changed the conversation, I think, by asking for a repeal of what was a catastrophic portion of the law for state workers."
Protections extended to LGBT state workers
One of the most meaningful parts of McCrory's order may be a provision that says state human resource policy bars "unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information or disability."
That would be an expansion of protections for many state workers who have been laboring under a much narrower non-discrimination policy, although some parts of state government such as the University of North Carolina system and the Department of Justice already have broader non-discrimination statements.
Essary called the expansion of protections "a huge step for the state, and a first."
"For him to do so by virtue of executive order, I think, is sending a statement that he wants the nation and the world to hear with regard to the inclusive nature of North Carolina. Mind you, it impacts only a small percentage of workers statewide, but it does impact state workers, and I think it does send a message," Essary said. "I would ask, if you’re going to protect state workers from discrimination based on sexual orientation and gender identity, why cannot the common citizen who works for a private-sector employer be protected?"
Some advocates who have opposed House Bill 2 acknowledged the expanded protections for state workers, while adding that they still oppose the bill.
"Workplace protections for state employees, that is important. That is something that our allies have been fighting for for 10 years, not just short term, so we're glad to see that," said Chris Sgro, the executive director of Equality NC, a nonprofit that advocates for LGBT people.
But Sgro said the order "doubles down" on the bathroom restrictions and still doesn't allow any local protections for LGBT people in employment or housing.
"If the governor is serious about this being a concerning piece of legislation, which he clearly has indicated today it is, then it needs to be repealed – in full and not just piecemeal," he said.
Other advocates and opponents of the law blasted McCrory's order as "insufficient," saying they fell short of the total repeal many have called for.
"Governor McCrory is now willing to admit the economic toll HB 2 is taking on North Carolina," House Minority Leader Larry Hall said in a statement. "In the weeks since the Governor signed this new statewide discrimination policy, our state’s reputation has suffered very real damage. This cannot be undone with half measures and political spin. It requires meaningful action. He owes our state nothing short of a full repeal of HB 2 in the opening week of legislative session."
"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 of the North Carolina branch of the American Civil Liberties Union. "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."
"While this order does address a few of the outrageous elements of HB2, it leaves in place some of the bill’s biggest problems, including harmful, state-sponsored discrimination against transgender people," Justin Lee, executive director of the Gay Christian Network, said in a statement.