News: CJ Exclusives

Scholar: Charlotte Ordinance Erased Bathroom Privacy

Law prof says H.B. 2 necessary for public safety and protection in facilities

Proponents of Charlotte’s controversial “bathroom” ordinance — including the city’s attorney — claim that stripping a 1985 facilities privacy provision from the city code was of no consequence, but, according to a constitutional scholar, had the ordinance remained in effect, places open to the public in Charlotte “could no longer separate men and women in such facilities.”

Greg Wallace, who teaches constitutional law at Campbell University Law School, wrote on The Public Discourse, the blog of The Witherspoon Institute: “Repeal of the restroom exception, combined with the new [sexual orientation and gender identity] protections, made clear that Charlotte businesses and other places open to the public could no longer separate men and women in such facilities on the basis of sex or gender identity.”

Charlotte City Attorney Bob Hagemann told Carolina Journal he removed the 30-year-old section of the city code that allowed discrimination on the basis of sex in bathrooms, changing rooms, and other facilities on public and private property in order to align the city code with modern legal trends.

“In drafting the ordinance, it was not the city’s intent to eliminate gender-specific facilities,” Hagemann wrote in a Feb. 24 memo to Mayor Jennifer Roberts and the city council.

But Lt. Gov. Dan Forest, along with members of the General Assembly and Gov. Pat McCrory’s legal team, say it did just that. They say that the plain language of the Charlotte ordinance — which was nullified by House Bill 2 during a March 23 special session of the General Assembly — would have allowed boys to enter girls’ public-school locker rooms, as an example.

The debate has blown up into a partisan issue, as the state has been assailed in a campaign by left-wing groups, while some companies, agencies, and entertainers have made decisions or threats to cancel business plans in the state.

Protections removed

Section 12-59 of the city’s nondiscrimination code prohibited sex discrimination in employment and accommodations. But it exempted the “facilities which are in their nature distinctly private” mentioned earlier, allowing separate facilities for men and women. It also exempted YMCA, YWCA, and similar dormitory lodging facilities, private clubs, or other establishments not open to the public. The ordinance passed by the council in February removed Section 12-59 from the code.

“I concluded that eliminating Section 12-59 and adding ‘sex’ along with the five new characteristics in Section 12-58 was consistent with modern drafting,” Hagemann told CJ. The five characteristics are marital status, familial status, sexual orientation, gender identity, and gender expression. Section 12-58 prohibits discrimination based on race, color, religion, and national origin, as defined by the Civil Rights Act of 1964.

The ordinance consolidated sex discrimination in the section with other types of discrimination.  “That’s how every other ordinance and law in the country is written,” Hagemann said.

“There’s not a single jurisdiction that has ever taken the position, nor has any court ever held, that without an express carve-out for restrooms, a prohibition on sex discrimination requires the elimination of separate men’s and women’s restrooms,” Hagemann said.

Jamey Falkenbury, Forest’s press secretary, says savvy litigators could make a compelling argument in court that the city’s decision to eliminate nondiscrimination language that had been part of the city code signaled that the city intended to do away with separate-gender bathrooms.

In an email, Falkenbury said, “By deleting that exception that was in the prior ordinance, the Charlotte City Council has spoken on the issue, and thus a claim of sex discrimination could be made by any man (whether transgender or not) if he were to be denied access to a female bathroom.”

The controversy emerged last year when the Charlotte council considered the ordinance. Over the objections of several council members, the original version, backed by Hagemann, stripped privacy protections from the ordinance. The council initially rebuffed Hagemann, voting 9-2 to restore those protections. But even with the privacy protections in place, the full ordinance failed by a 6-5 vote.

After last fall’s election, in which three new council members and Roberts were elected, the new council approved the ordinance — which removed the protections allowing separate facilities for men and women — by a 7-4 vote.

“This year, the council did not propose any amendments to what was the identical proposal initially before them in 2015,” Hagemann said.

While H.B. 2 opponents insist the fight is over equal rights, minutes from the city’s meetings and other documents show the debate over transgender bathroom usage has been at the center of the discussion.

The Gay, Lesbian, and Straight Education Network said in a Tuesday press release that because of H.B. 2, transgendered people “will continue to be denied the dignity of accessing restrooms that correspond with their gender identity.”

And according to the minutes of the Feb. 8 Charlotte City Council business meeting, Community Relations Director Willie Ratchford said, “There is no bathroom ordinance. There is a nondiscrimination ordinance. It is about preventing discrimination.”

Councilmember Ed Driggs interpreted the ordinance differently. “We had the opportunity to pass exactly the same ordinance without the bathrooms [provision] once, and it could have passed except that a couple of people did not want it to pass without the [provision],” Driggs said.

Wallace said H.B. 2 is an attempt to balance “conflicting privacy interests.”

“Unfortunately, privacy rights in multi-occupancy bathrooms, showers, and locker rooms are a zero-sum game — whatever one side gains, the other loses. While transgender persons have legitimate privacy concerns, so do nontransgender persons, who will be required to disrobe, shower, and perform personal bodily functions in the presence of those with intimate body parts different from their own,” Wallace wrote.

Wallace also defended the constitutionality of H.B. 2, which has been challenged in a federal lawsuit for alleged bias against the transgendered: “If the North Carolina legislature, because of privacy and safety concerns, wants to pre-empt local ordinances granting transgender persons access to the bathrooms of their choice,” he asked, “why is that necessarily ‘targeting’ motivated by animus rather than a permissible balancing of conflicting privacy interests?”