INTRODUCTION: Thanks for joining us this week for Family Policy Matters. We are speaking with a special member of our staff, Jere Royall, who serves as Counsel and Director of Community Impact for NC Family. Clearly one of the hottest topics in North Carolina over the last year has been the passage of House Bill 2, or North Carolina’s Bathroom Privacy and Safety law. Jere serves as one of our registered lobbyists and spends a great deal of time at the North Carolina General Assembly working with state lawmakers and seeking to inform and educate them about issues that are important to families across our state and the impact that those issues will have on families.
Since the state legislature came back into session on January 25, and HB2 remains a hot topic of discussion, we thought it would be particularly helpful to revisit this bill and discuss what it actually does. There has been so much information circulated about HB2 and so many misconceptions out there from the public, so we thought it would be helpful to take an opportunity to clear the air about some of the myths and misconceptions surrounding this very common sense and important piece of legislation.
Jere, welcome back to Family Policy Matters! It’s always great to have you on the show.
JERE ROYALL: Thank you, John! It’s great to work together.
JOHN RUSTIN: We really appreciate very much your commitment to speaking on behalf of families and family values at the General Assembly. You spend countless hours down there meeting with lawmakers and developing relationships with them, which really provides the opportunity to enter into discussions about important legislation like House Bill 2. Jere, as we get started, why don’t we talk a little bit about the history of HB2? What events transpired that led to the consideration and the passage of HB2 in March of 2016.
JERE ROYALL: Last year in February, the Charlotte City Council made some changes in their ordinances in two significant areas. One—and this is the part that most people have heard about and are most familiar with—in the area of privacy and safety as it relates to public restrooms, locker rooms and showers. They had had a provision in their ordinances for 30 years that had recognized that it was important to make distinctions in those areas of privacy and safety as it related to people making decisions about how policy applied to restrooms, locker rooms and shower rooms, that those would be designated based on biological sex. That was an exception that was made in the non-discrimination policy, realizing that this was an important distinction to make as far as protecting the privacy and safety of citizens.
JOHN RUSTIN: And so that ordinance essentially said, if men or woman need to use a restroom or go to a shower or bathhouse that was a public facility, that men would simply go to the men’s room and women would go to the women’s room and it was perfectly fine and actually the standard, the understood standard for that to be the case in the City of Charlotte. And that’s what they sought to essentially repeal in the set of ordinance changes that the Charlotte City Council passed in February, correct?
JERE ROYALL: That is correct. And the change would have allowed people to choose which facilities they used based on how they identified—not their biological sex but which sex they identified with.
JOHN RUSTIN: So essentially, a man who identified as a woman could then enter into a women’s bathroom or shower or locker room or changing facility and under that new ordinance that the Charlotte City Council adopted that would be perfectly fine.
JERE ROYALL: That is correct. That is what that change would have done and that’s why the legislature saw this as an important area for them to address. In addition to that, there was another major change that was made in their ordinances, which related to the non-discrimination laws as they applied to commercial activity in the City of Charlotte. Whether it was people doing business within the city or people doing business from outside Charlotte with the City of Charlotte, they would have been required to add “sexual orientation and gender identity” as protected classes, in addition to the classes that had been recognized for many years under state and federal law, such as race, color, national origin, and religion—and sex as it was understood to apply to biological sex. But this change would have created the problem that we’re seeing across out country, where when these sexual orientation/gender identity protections are added as protected classes, there is a conflict with the religious freedom or religious liberty of citizens.
JOHN RUSTIN: And this is where we’ve seen lawsuits or actions brought by governments against bakers and florists and photographers and videographers and other folks, particularly those associated with the wedding industry. And so this would have invited all of these types of issues into North Carolina. We’re fortunate enough that we haven’t had these so-called SOGI, or sexual orientation gender identity laws or ordinances in our state. But this would have created the beginning, essentially, of what we’ve seen in many of these other municipalities across the country.
Also, one of the major catalysts for HB2 was a conflict that was created by the actions of Charlotte City Council when compared to North Carolina’s longstanding governance doctrine, which is referred to as, “Dillon’s Rule.” What is this Dillon’s Rule and how does it apply in this case?
JERE ROYALL: This is a legal principal that’s applied by over 30 states which means that within those states, local governments only have the authority that’s been given to them by the state constitution and the state legislature. And that really is an overriding principle that really, when you apply it to the situation in Charlotte—if you just step back and said, ‘What do we need to do?’—it would be just to apply this principal and say, ‘Charlotte did not have the authority to pass the ordinances which they had passed back in February of 2016.’ And then really, that’s part of what the legislature ended up saying. But this is the underlying principle in the action that was taken by the legislature.
JOHN RUSTIN: I think that’s a really important thing for our listeners to understand—and this is something that’s really not been discussed that much when it comes to what we’ve heard about HB2—is that there has been this longstanding principle in North Carolina that city and county governments are essentially a subset of the state government. And as you said, they derive all of their authority either from the constitution or acts that are passed specifically giving them authority from the North Carolina General Assembly. And so, for a city or county to go off—some people may refer to it to “go rogue”—and start passing laws and ordinances that conflict, or that depart significantly from state law, is a violation of this Dillon’s Rule principle. And that’s exactly what we saw in North Carolina and that’s part of what the legislature recognized in their need to pass HB2.
Jere, when the General Assembly came into special session in March of 2016 in order to rein in the actions of the Charlotte City Council, they passed HB2. What exactly does House Bill 2 do?
JERE ROYALL: There are three sections for HB2. The first section deals with what we’ve mentioned at the beginning of our conversation: the bathroom, restroom, locker room policy. And they established a statewide privacy and safety law, which really just codified existing state policy. What they did in that was for all public schools and government agencies, they set a policy for—and the way this section’s entitled is “Single Sex Multiple Occupancy Bathroom and Changing Facilities.” It meant that for multiple occupancy facilities, those could only be occupied by people of the same biological sex. Now they did make provision in there in that section of the law where accommodations could be made by providing single occupancy facilities. So, they were being sensitive to the fact that there were concerns that some people had, but they also wanted to make sure that the privacy and safety of our citizens was being protected under our state law and that local law could not override that.
JOHN RUSTIN: So if you had a circumstance where you have student in a school or an individual who works for the government or something like that or just a member of the public who went to a public facility and they had some misgivings about going into a bathroom or shower that coordinated with their biological sex, this actually does allow for accommodation to be made for them to use a single-stall facility, for example, for their private functions. And that’s something that I think was glossed over in much of the media coverage of this legislation that suggested that there was no accommodation made, but there actually was. And so, there was some flexibility provided in this, but it did set the statewide standard that in public, individuals would use the bathroom, shower, locker room or changing facility that associated with their biological sex.
JERE ROYALL: That is correct. Now also, just as a point of clarification, this law does not affect the ability of private business and non-profit corporations to set their own policy about these questions.
JOHN RUSTIN: Right.
JERE ROYALL: This relates to public facilities, as I say like in our school systems or government buildings.
JOHN RUSTIN: I think that’s an important distinction because we heard from some in the business community that this bill was creating so many problems and you know some business executives suggested boycotts or not expanding their business opportunities in the state, but this bill does not impact the ability that they have to adopt internal policies related to bathroom usage.
JERE ROYALL: That is correct. The other sections looked at the commercial impact of the ordinance that was passed by Charlotte. Again, this relates to non-discrimination law, which up to that point, had been the same as our state and federal laws. But what Charlotte was doing and the state needed to address was the fact that our state is the governing authority that determines what happens on a state level and looks out for the general welfare of the people. In part two of the law, it’s entitled “Statewide Consistency in Laws Related to Employment and Contracting.” What would have happened under the changes in Charlotte is local governments could be making requirements, again, on commercial activity within their area of authority that affected wages and hours affecting what people’s policy could be within their private companies. And what this pointed out through this provision of the law was to clarify that these are state policies that are determined on a statewide level. Now, governments are allowed to make their own policies for their own employees, but when they start making decisions that affect commerce across the state, that’s where the legislature needed to come in and clarify that that was outside the authority of local governments.
JOHN RUSTIN: And it also dealt with public accommodations which are basically, according to the ordinances that were in place in Charlotte, would essentially have applied to any business, association, non-profit and even churches that basically said they would also have to conform to these same policies and this same definition of adoption of sexual orientation and gender identity and open bathrooms, or else they could be subject to penalties and things of that nature, correct?
JERE ROYALL: That is correct.
JOHN RUSTIN: So that is one of the measures that HB2 sought to reign in and basically say that the City of Charlotte—and for that matter other cities and counties across the state—did not have the authority to adopt. Now if the state legislature saw fit to adopt a statewide policy doing that thing, that was within the purview of the state legislature. But it was not within the purview of any city or county to adopt these Charlotte-style ordinances.
JERE ROYALL: That’s correct.
JOHN RUSTIN: Jere, what can citizens do if they are interested and continue to be concerned about the legislature considering bills that would repeal HB2.
JERE ROYALL: On our website at ncfamily.org you can see a lot of the history of HB2. In the search box there on our website if you just put in HB2, it’ll pull up all the publications that we have produced relating to HB2. As far as actually getting involved and responding, also on our website, if you click on “Get Involved” and then it has “Take Action” and you can click on there and it’ll take you to a section where there’s information about HB2 and specifically how you can contact your members of the North Carolina House and Senate through email. Also, as we’ve mentioned previously, in addition to emails it’s great to be in touch with them on an even more personal level through phone calls or even a personal visit.
JOHN RUSTIN: Thank you Jere. That just about does it for this week. We will continue this important conversation about HB2 next week.
JERE ROYALL: You’re welcome John, and again it’s a blessing to work together with you and other citizens across the state.
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