Proposed "Sexual Orientation" Rule Withdrawn

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Proposed "Sexual Orientation" Rule Withdrawn

Special Report - May 15, 2008
The N.C. State Personnel Commission has abandoned its effort to enact a proposed rule change that would have added “sexual orientation” as a protected classification in North Carolina’s state employment regulations. In a May 14 letter to the Rules Review Commission (RRC), the Office of State Personnel requested that the rule change be withdrawn from consideration.

In accordance with state law, the RRC does not make policy decisions about proposed rules, but instead reviews proposed regulations near the end of the rulemaking process to ensure that: (1) the agency seeking the rule has the legal authority to implement the rule, (2) the language of the rule is clear and unambiguous, and (3) the rule is necessary. At the January meeting of the RRC, North Carolina Family Policy Council vice president and director of government relations John Rustin testified that the proposed rule change did not meet any of these criteria. Referring to a letter submitted to the RRC by the Council, Rustin argued that “sexual orientation” does not exist anywhere in state law, and the term is not recognized by the state or federal government or the U.S. Supreme Court as a valid category for inclusion in Equal Employment Opportunity (EEO) laws or regulations.

Despite arguments by the Office of State Personnel in favor of the rule change, the RRC rejected the proposal in January on the basis that the State Personnel Commission did not have authority to enact the rule change and on the basis that the term “sexual orientation” and the proposed definition of the term, “actual or perceived heterosexuality, homosexuality, or bisexuality, or a person’s gender-related identity or expression,” was unclear and ambiguous. The State Personnel Commission has had the opportunity to respond to the RRC’s objections since January, but decided to withdraw the proposed rule change instead.

“This is a clear case of a properly working system of checks and balances within government,” commented Bill Brooks, president of the North Carolina Family Policy Council. “While the State Personnel Commission clearly exceeded its legal authority by attempting to add ‘sexual orientation’ into state regulations, the Rules Review Commission followed the law and properly rejected the proposed rule change,” Brooks concluded.