RALEIGH — Campbell University law Professor Greg Wallace says a simple repeal of House Bill 2 being pushed by Gov. Roy Cooper would put the state back in a “gray area” regarding municipal authority over nondiscrimination ordinances.
“I’m not sure either side really wants this dispute to come down to that issue.”
Cooper and other Democratic leaders advocated a straight-up repeal of H.B. 2 but, failing that, earlier this month they offered a compromise. That compromise seems to be at odds with the position Democrats held on the controversial state legislation several weeks ago. And it doesn’t address an unsettled question about H.B 2 and the Charlotte anti-discrimination ordinance that inspired it: How much power do cities have to enact local ordinances that are tougher than state laws?
The recent plan by the governor and fellow Democrats would increase criminal penalties for people who commit assaults in bathrooms and changing areas. In addition, it would require local governments to provide 30 days notice to the public and the General Assembly if they planned to adopt an anti-discrimination ordinance that transcends state law.
Cooper and Democrats considered a somewhat similar arrangement proposed by Republicans in December a non-starter. During a special session, Senate Republicans floated a proposal that would have prevented local governments from adopting anti-discrimination ordinances until 30 days after the General Assembly adjourned its long session in 2017.
Cooper’s office failed to respond to a query about why his 30-day notice proposal was acceptable yet the cooling-off period proposed by Senate Republicans was not.
The LGBT activist group Equality North Carolina also failed to respond to a request for an interview.
Meanwhile, the aforementioned gray area existed before the General Assembly adopted H.B. 2 — negating a Charlotte anti-discrimination and bathroom ordinance — on March 23, 2016. Some lawmakers and analysts said H.B. 2 was unnecessary because North Carolina is not a home-rule state and cities didn’t have the authority to adopt ordinances like Charlotte’s. Others, citing the need for the bill, said they needed to make sure such an ordinance could not be enforced. Yet others who backed the Charlotte ordinance said H.B. 2 was unnecessary because opposition to the city’s protections was primarily based on unwarranted fear.
North Carolina is not a home-rule state. But it isn’t a “Dillon’s rule” state either, under which local governments can adopt only those ordinances specifically outlined by the state legislature, said Frayda Bluestein, a professor of public law and government at the UNC Chapel Hill School of Government.
Bluestein said the state’s statutes governing cities and counties say the authority given local governments should be broadly construed.
“Courts in North Carolina have sometimes applied the broad construction and sometimes not,” Bluestein said. “If the statute is clear, we don’t use broad construction; we just look at the words on a page. If a statute is ambiguous, we apply broad construction.”
Bluestein said the “police powers statute” gives cities more flexibility than they would have if North Carolina were a strict Dillon’s rule state.. “Even though we’re not a home-rule state, cities and counties have broad authority to enact ordinances to regulate to protect the health, safety, and welfare,” she said.
“In terms of the use of bathrooms, I think there’s at least an argument that the health, safety, and welfare provision would support the authority to protect people who are going into restrooms so that they can be in the one that they look like they’re supposed to be in,” she said.
Bluestein also said an aspect of criminal law regarding trespassing in public bathrooms could come into play.
“The argument on the other side would be, ‘Is it a trespass and do the laws about who can be in a bathroom at the state level [apply]?’” Bluestein asked.
Meantime, other professors at the School of Government have concluded that, absent House Bill 2, a transgender person using a bathroom not consistent with his or her biological sex would not be trespassing. “It’s an open question of law,” she said.