Does Charlotte 'bathroom bill' clash with state law?

by Matt Caulder, Capitol Connection, February 23, 2016.

The Charlotte City Council passed an addition to its non-discrimination ordinance Monday night adding marital status, familial status, sexual orientation, and gender identity and gender expression to the list of protected characteristics under its non-discrimination law.

But another piece of the ordinance removing a distinction that prohibits members of the opposite sex from using restrooms, shower rooms, bathhouses and similar facilities meant for the other gender may serve to invalidate the change under the state’s indecent exposure law.

The council’s edict applies to places of public accommodation, such as bars, restaurants and stores and also applies to taxis.

The changes are set to go into effect April 1, following the 7-4 vote Monday night.

However, State Statute 14-190.9, outlining indecent exposure, makes it a Class 2 misdemeanor to “willfully expose the private parts of his or her person in any public place and in the presence of other persons” but makes allowances for “places designated for a public purpose” such as a locker room or group shower.

The statute, however, makes the carve-out gender specific centering the exception on “places designated for a public purpose where the same sex exposure is incidental to a permitted activity.”

This can mean a group shower or locker room such as at a fitness center or recreational centers like YMCAs.

The law also leaves property owners, lessees and managers culpable under the law if they knowingly allow someone to expose himself or herself.

Rep. Dan Bishop (R-Mecklenburg) raised that very point with the Charlotte City Council and Charlotte Mayor Jennifer Roberts in a letter sent Feb. 1, in which he said that the ordinance creates conflict between the requirement that most business owners provide sex-specific bathroom facilities, but then requiring that they not segregate those restrooms.

Bishop raised the state’s indecent exposure statute as an issue in that it would forbid facility operators from “segregating gang showers by sex” and put facility operators in violation of state law, which “forbids facility operators from permitting cross-sex exposure of people’s ‘private parts.’”

Bishop warned that the city could be held liable for attorney’s fees after a court battle, which will almost certainly come following the decision.

Change sets Charlotte up for fight with legislature

Outside of any court battle, the change will likely result in action from the General Assembly.

In an email Sunday, Gov. Pat McCrory said that the bathroom provision, which has been the most contentious portion of the changes made to the city ordinances, would likely cause immediate action from the General Assembly.

“This action of allowing a person with male anatomy, for example, to use a female restroom or locker room will most likely cause immediate State legislative intervention which I would support as governor,” McCrory said in the email. “This action also puts an unneeded strain on the relationship between the City of Charlotte and the State of North Carolina.”

McCrory also said that the shift would “create major public safety issues by putting citizens in possible danger from deviant actions by individuals taking improper advantage of a bad policy.”

Seconding the governor was Tami Fitzgerald, executive director of NC Values Coalition, “I applaud Gov. McCrory for having the sense to throw out this unreasonable and unnecessary ordinance,” said Fitzgerald, who was one of the 140 people who commented before council. “If you pass this tonight, you can guarantee yourself at least a lawsuit or the General Assembly coming against what you’ve done.”

Any moves made by the legislature may not come until late April when the Short Session is set to open.

North Carolina is not a “home rule” state, meaning that all power given to the municipalities and counties of the state are granted by the state, meaning that the state ultimately has the power to control what cities do.

The Legislature may choose to strike the entire amendment to the ordinance, remove only the bathroom portion or put the change to a vote of the people of the state or just to the people of Charlotte.

Charlotte report omits bulk of opposition letter

The report compiled by the City of Charlotte as follow-up information to that which was presented Feb. 8 included mention of a letter from Charlotte religious leaders, signed by more than 100 Charlotte area citizens and business leaders, in opposition to the change.

But the city report omitted many of the reasons behind opposition to the ordinance.

The summary says that a number of ministers and business people expressed opposition to the ordinance “explicitly on the premise that businesses should have the right to deny services based on marital status, familial status, sexual orientation, and gender identity or gender expression.”

The report makes no mention of the remaining three reasons the letter makes mention of for opposing the move in relation to the Feb. 27, 2015 letter, including:

• the opinion that the ordinance would put women and children in danger of predators looking to take advantage of the policy;
• the ordinance causing the city to participate in religious discrimination against companies based on who the city contracts with, under the new ordinance requirements; and
• also a legal argument about the authority of the city to affect labor and trade in the state.

The letter argued that “the ordinance violates Article II, Section 24(j) of the (state) Constitution” by creating a local ordinance affecting labor and trade.

The General Assembly prohibits localities from enacting local, special and private legislation pertaining to labor and trade, to maintain an equal situation across the state in regards to labor and trade.

The letter reads, “The proposed ordinance before this City Council is unconstitutional, because it creates a ‘local, special and private’ ordinance regulating labor or trade.”

The letter went on to say that merely exempting religious institutions from the requirement would not fix the problem of protecting everyone’s First Amendment rights.

http://nccapitolconnection.com/2016/02/23/does-charlotte-bathroom-bill-clash-with-state-law/