North Carolina Issues New Executive Order on LGBT Discrimination

Lev Craig

Last year, we reported on North Carolina’s Public Facilities Privacy & Security Act, better known as “HB 2.” HB 2, which was passed in March 2016, required North Carolina public schools and agencies to separate bathrooms by “biological sex,” preventing many transgender people from using the bathroom consistent with their gender identity. In the wake of the passage of HB 2, many companies reduced or withdrew their business in North Carolina, and musicians and speakers cancelled scheduled events in protest of the new law. The state was even drawn into conflict with the federal government when, in May 2016, the United States filed suit against the State of North Carolina and Pat McCrory—the state’s Republican governor at the time—on the grounds that HB 2’s “bathroom provision” violated several federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964.

The widespread opposition to HB 2 caused a serious hit to North Carolina’s economy and reputation, and in the year and a half since the law was passed, a number of North Carolina politicians and activists have pushed to repeal it. In March 2017, North Carolina repealed HB 2 with the passage of HB 142. The new bill was hampered, however, by two significant concessions to Republican legislators: a provision stating that regulating “access to multiple occupancy restrooms, showers, or changing facilities” would be left to the state, and a provision prohibiting local governments from “enact[ing] or amend[ing] an ordinance regulating private employment practices or regulating public accommodations.” These components of HB 142 mean that transgender North Carolinians remain vulnerable to discrimination; the state retains its power to control bathroom access, and local governments aren’t able to pass their own laws protecting LGBT constituents from discrimination in the workplace or public accommodations.

On October 18, 2017, Democratic North Carolina Governor Roy Cooper issued a new executive order and consent decree intended to combat discrimination in North Carolina, which he called an important step “toward fighting discrimination and enacting protections throughout state government and across our state.” The executive order prohibits discrimination on the basis of sexual orientation and gender identity or expression, among other protected characteristics, in government agencies and government contracts—a major step for employees of the North Carolina state government or the more than 3,000 vendors who contract with it. The consent decree, which regulates how North Carolina’s executive agencies enforce HB 142 in their public facilities, allows transgender people to use restrooms in accordance with their gender identity.

But while the executive order and consent decree do create important protections for LGBT people in North Carolina, they don’t resolve all the problems created by HB 142. Employees of private corporations, who form the majority of North Carolina’s workforce, are still not protected against discrimination based on their sexual orientation or gender identity. Similarly, the consent decree only applies to public facilities controlled by the North Carolina executive branch, meaning that transgender people still don’t have legal protections in other locations.

In New York, state and city laws protect LGBT employees against discrimination in the workplace. If your employer has discriminated against you based on your gender identity or sexual orientation, contact The Harman Firm, LLP.