HB2 Bill See How It Ain’t About Bathrooms


****  FEDERAL GOVERNMENT EDUCATION FUNDING

*** Several federal agencies and the White House have spoken negatively of the law and it’s perceived impact largely re Title IX funding.

NC’s Jiggery-Pokery: HB2 isn’t just about restrooms

Other discriminatory parts of the bill are not getting as much as attention as the restroom access provision yet those other provisions affect members of the LBGT community as well.

Summary of all of NC’s HB2

HB2 also affects minimum wage, employment conditions, income equality

HB2 eliminates any state law protection for race and sex discrimination in the workplace and that affects women, pregnant women, people of color, immigrants, and others that require anti-discrimination protections.  The law’s far reaching provisions are destructive to labor, working families, minorities, and small businesses plus the economic repercussions continue: April 5, 2016, PayPay announces its withdrawal of Expanding in NC, 400 Jobs Lost. 

Note:  In what seems to be a provision in anticipation of litigation and foreshadowing the outcome, GOP legislators inserted a severability clause (Part IV) into the bill.  If one discriminatory section is ruled invalid by a court, the other discriminatory sections can remain in force.  This severability clause makes it dangerous to reduce HB2 to only a conversation about restroom access since the law’s damage is broader than publicized and affects everyone.

The illusory HB2 and what they don’t want people to know:

Women Beware:  HB 2 eliminates all existing state law remedies for women from being demoted, transferred, or terminated from their job because of their sex.

HB 2 also eliminates any state law claim for discrimination in the workplace on the basis of national origin or ethnicity.

HB 2 eliminates any state law claim for wrongful termination of an employee on the basis of skin color.

The last sentence of section § 143-422.3. Now only Mississippi and North Carolina provide no state law remedy for any type of employment discrimination. Local governments cannot protect their citizens from discrimination by private businesses and employees cannot file an action in their local courthouse.  Although U.S. citizens can sue in federal court for sex or race discrimination, an EEOC claim is harder and more expensive to file in federal court.  48 states think that a right to sue in state court is necessary for justice and to signal the importance of diversity and nondiscrimination on the basis of race, ethnicity, sex, and religion. 

HB 2 overturned and eliminated all existing local ordinances and any ability to enact family leave policies, child welfare protections, limits on the number of consecutive hours an employee may be required to work without a break, and health insurance standards for contractors in their community.

HB 2 overturned and eliminated all existing local authority to enact minimum wage standards for public-sector contractors in their community.

Section § 2.1.

HB 2 eliminates the existing state law remedy that now protects (but no longer will) a person who has been terminated from their job on the basis of religion.

§ 143-422.2 states: “The regulation of discriminatory practices in employment is properly an issue of general, statewide concern, such that this Article and other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to the regulation of discriminatory practices in employment, except such regulations applicable to personnel employed by that body that are not otherwise in conflict with State law.”  The next provision, “This article does not create and shall not be construed to create or support a statutory or common-law private right of action, and no person may bring any civil action based upon the public policy expressed above,” renders the prior sentence powerless.  The “right” cannot be enforced.

HB 2 has overturned all existing local ordinances and protections for LGBT citizens in North Carolina and banned any communities from ever enacting any such protections again.

Sections § 143-222.3 and 222.1.

HB 2 requires school systems to enact regulations on single-sex, multiple-occupancy bathrooms and changing facilities interprets to be in direct violation of the Department of Education and the Office of Civil Rights guidance.

HB 2 requires, in multiple-occupancy public bathrooms, that transgendered males, who were born female but now exhibit fully male characteristics and who have not or cannot change their birth certificate, use female restrooms and seems to be in violation of Title IX of the Education Amendments of 1972.

ForbesPersonal Finance – 4/04/2016

NC HB2 Trans “Bathroom” Bill Also Cements Income Inequality

North Carolina’s HB2 “bathroom” bill that requires trans people to use the bathroom for the gender indicated on their birth certificates has received national attention. Unfortunately, coverage of the bill — really, the law, at this point — has largely been reduced to who should be able to use which bathroom.

It is more. There has been at least some discussion of how the new law prohibits a local government or any “political subdivision of the state” from establishing gender identity as a class protected from employment discrimination. What has received little attention is how an entire section of the law has nothing explicit to do with issues of gender identity. Instead, it prohibits local governments from affecting employment conditions in private companies.

Part 2 of the law, which reworks the state’s “Wage and Hour Act,” prevents any local government, whether city, town, or county, from regulating wage levels, hours of labor, or benefits of private employers. Here is the pertinent language:

The provisions of this Article supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to compensation of employees, such as the wage levels of employees, hours of labor, payment of earned wages, benefits, leave, or well-being of minors in the workforce.

A local government still can control benefits and compensation of its own employees, although it cannot place any requirements on contractors it uses to carry out work. In the past, according to the sections struck, a local government could place requirements on a contractor so long as it could have imposed the same requirements on all its employees.

Some of the advances in battling income inequality have come at the local level. Cities and counties have set higher minimum wages, regulated the number of hours employers must provide employees, required that employers give advanced notice of hours so employees can manage their personal and other work schedules, and instituted mandatory sick time.

Under HB2, that is not possible in North Carolina.

Plus, there’s an additional twist:

A city [or county] may not require a private contractor under this section to abide by regulations or controls on the contractor’s employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public as a condition of bidding on a contract or a qualification-based selection, except as otherwise required by state law.

That would seem to reinforce the last section of the law, meaning that a locality couldn’t require a contractor to service any particular group, like trans people, if not required to by state law.

And then there is section 4, the severability clause. If any part of this law is held invalid or unenforceable, presumably through a court’s action, the other parts of the law remain in force. Should a court toss out the gender identity portions of the bill, the restrictions on regulating behavior of employers on a local level remains.
Perhaps the restriction of local regulations was a sop tossed to large franchises to
keep them from publicly opposing the law the way some major corporations operating in the state have. Some of these franchise chains have been increasingly supportive of gender and sexual rights in their national advertising, but would presumably be among the operations affected by, say, a higher local minimum wage or demands on hours. Or maybe this was a way to focus attention on one issue while sliding something else through, with North Carolina politicians pushing the measure correctly gauging which parts would get the attention.

But it’s certainly a setback to those pushing for greater income equality, especially as North Carolina’s minimum wage is the same as the federal one: $7.25 an hour. So, for example, a push in Durham to raise the minimum wage to $12.33 an hour would appear to be dead in the water.

http://www.forbes.com/sites/eriksherman/2016/04/04/nc-hb2-trans-bathroom-bill-also-cements-income-inequality/#470e29e96e2a

The $42,000 Extra Session

Democratic Leader Larry Hall – GUEST COMMENTARY – SPECTACULAR MAGAZINE – April 2016

Republicans boasted in early March that they would call a special session to interfere with the City of Charlotte’s conduct of local business.  It was publicized as an action to overturn a Charlotte restroom access ordinance, but in fact it was loaded with far reaching provisions that are destructive to labor, working families, minorities, and small businesses.  This new “law” facilitates statewide discrimination, prevents local governments from raising the minimum wage, eliminates citizens’ right to sue in state court for workplace discrimination, and overturns the will of local communities.

On March 3, 2016, as the Democratic Leader of the N.C. House of Representatives, I called on House Speaker Tim Moore to be fiscally responsible and to stop yet another taking of local control.  The letter warned that a special session was not in the best interest of the state or the people of North Carolina, revealed the costly session as an election cycle fundraiser maneuver, and foreshadowed more unnecessary legal expenses with taxpayers footing the bill. 

Without transparency and extremely limited public input, and despite the 2016 legislative session being only a month away, a $42,000 per day special session to hear the illusory House Bill 2 on March 23, 2016 was called.  Legislators were given only five (5) minutes to read the bill and constituents were denied any meaningful right to review as Republicans refused to post the bill on the website per standard operating procedure.  Predictably, there was no time for legislators to interact with our constituents.  The bill that encourages statewide discrimination passed the Republican-controlled House and Republican-controlled Senate that day and the Governor signed it into law hours later.  The whole process was rushed through in less than ten (10) hours.

THE POWER GRAB AND MINIMUM WAGE

House Bill 2 is a huge power grab by state government.  The law restricts local governments from raising wages and from dictating job standards in public contracts.  It prohibits cities from raising the minimum wage higher than the state’s minimum wage, which is currently $7.25 per hour, and it makes it harder to create jobs that pay employees a living wage –a wage sufficient enough to cover the basics.  The law takes money away from middle class families by preventing them from being paid a living wage.  The law prohibits local governments and local employment ordinances that encourage higher worker wages, benefits, and leave policies.

DISCRIMINATION

HB2 legalizes discrimination and prohibits local governments from banning discrimination by private businesses.  Business are now free to discriminate against citizens at will without recourse.  Local governments cannot protect their citizens from discrimination by private businesses.  This new law eliminates your right to file a civil action in state court at the local county courthouse.  Your only recourse is to travel to a city with a federal courthouse. An Equal Employment Opportunity Commission claim is more expensive and harder to file in federal court.  As an employee, you have less rights and protections today than you had on March 22nd.  Be clear, any law that undermines the rights of one group can undermine the rights of everyone. 

LEGAL RIGHTS

This law leaves employees defenseless.  It effects everyone –people of color, women, older workers, religious minorities, immigrants, and others that require anti-discrimination protections.  HB2 eliminates the right of employees to sue their employer in state court when fired for a discriminatory reason.  Mississippi and now North Carolina are the only states without a state law to protect private employees from workplace discrimination based on race, religion, color, national origin, age, or sex. 

ECONOMIC REPERCUSSIONS

House Bill 2 damages our state’s business reputation and trashes the “new” state brand.  There is national outrage and a corporate backlash.  Companies already speaking out against HB2:  Apple, American Airlines, Biogen, IBM, Facebook, RedHat, PayPal, Bayer, Dow, Google, Lowe’s, Merrill Lynch, NCAA, NBA, NFL.  People are refusing to vacation in North Carolina which hurts our travel industry and a Hollywood movie producer has called for a boycott from filming in the state. And the backlash is growing.  HB2 could affect corporations considering our state for upcoming events: ESPN and the summer X Games, the NBA and the 2017 All-Star Game, and the NCAA and the 2017 and 2018 tournaments.  This unconstitutional law also imposes requirements on public schools which could affect federal education funding. 

The $42,000 session did not solve a problem –people are still dying each day due to Republican refusal to expand Medicaid, teachers are still leaving the state, education funding has not been increased, tens of thousands are still burdened by Voter ID, districts are still gerrymandered, our working poor are still in poverty, and our middle-class continues to carry the weight of the tax breaks for the wealthy.  North Carolina is now being compared with Mississippi and continues to be surpassed by South Carolina.

As foreshadowed, a federal lawsuit was filed on Monday, March 28, 2016 challenging House Bill 2.

Online edition: https://issuu.com/spectacular/docs/april2016_online_2d21a66d2b0868

Rep. John Ager: Why I voted against HB2

Rep. John Ager – GUEST COLUMNIST – CITIZEN TIMES – April 4, 2016

It was never really about the bathrooms. They were the hook, the Trojan horse to do so much more to North Carolina citizens and local government; a political ploy as fodder for the 2016 election.

Regarding the bathrooms, bad behavior of any sort should be prosecuted to the fullest extent of the law, but making rules that are unenforceable is never a good way to go. It was never about safety. If there were real safety issues, the General Assembly would not have allowed private businesses and venues (like Charlotte Motor Speedway and BoA Panthers stadium) to follow the same procedures as the Charlotte ordinance. Why would I not believe that I have been in the bathroom with not only transgender persons, but gay men as well? The safety issue is actually being taken care of with the spread of family bathrooms that can be locked and kept private. North Carolina has added them to their highway rest stops, as have airports.

HB 2 puts into law that Big Government in Raleigh will dictate to local governments what they can and cannot do. It will not be a collaborative effort to create good government, but our way or the highway. It turns out that the water and airport transfers were only the beginning.

HB 2 removes workplace protections in North Carolina. You can be fired for your race, religion, national origin, age, sex and disability and have no recourse in state courts for a discrimination law suit. You can only file suit in federal court, which is a lengthy, cumbersome and expensive process.

HB 2 has branded our state as intolerant. A long list of corporations have condemned the law. They have been trying to wring out discrimination from their cultures, and attract the best talent on the market. Investment in North Carolina could take a hit. The NBA All-Star game could be moved out of state. I was pleased to see HB 2 condemned by the Montreat Conference Center, located in my district.

While I was writing this opinion piece, a Buncombe County father called to tell me his family story. He said he was a regular guy who might have supported a bill like HB 2 in the past. But he said his family has been on a journey as one of his children transitions to another sexual identity. He said his child is now starting to thrive, and he is encouraged by what he sees. I said one of the most disturbing facts I learned during the debate was that transgender suicide rates were 41 percent. He knew that number, but said if the transition is successful the number goes back to normal.

There are real lives out there that HB 2 affects. The hurried way it was presented, voted on and signed into law is indicative of how bad laws are made. Gov. McCrory would have been better served to wait before he signed HB 2, and maybe he would have pulled out the veto pen like Georgia’s Gov. Nathan Deal.

John Ager, D-Fairview, represents the 115th District in the N.C. House.

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One thought on “HB2 Bill See How It Ain’t About Bathrooms

  1. As an extremely heterosexual male I openly apologize to the LGBT community instead focusing my fury toward the media outlets for NOT furnishing the public with ALL the facts! I THOUGHT I was right to support HB2, now my children have given ALL the facts. Frankly, I’m shocked to my core to discover how MUCH of the actual TRUTH was hidden from me regarding this bill. I have, in the space of less than 15 minutes, COMPLETELY reversed my position on this. SHAME on the media and SHAME on our state government for hiding the full truth from the public at large!!! Again I openly apologize to LGBT residents of this great state and the nation for my narrow view. When I’m wrong I say I’m wrong. Love my country, HATE my government!!!

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