by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In 2016, the Charlotte City Council approved an ordinance making it unlawful for private organizations to discriminate on the basis of sex, sexual orientation, and gender identity. As written, the ordinance specifically precluded the provision of sex-specific restrooms, locker rooms, shower rooms, and dormitories. The NC General Assembly responded by passing a bill, HB-2, that barred local authorities from promulgating anti-discrimination ordinances. HB-2 elicited a storm of criticism, not just by LGBT advocates, but by politicians (including President Obama) and by the corporate and media elite. States issued travel bans, major entertainment and sporting events were cancelled, and North Carolina became a national pariah. Faced with this unremitting coordinated attack, the General Assembly eventually caved. HB-2 was partially repealed in 2017 and fully repealed in 2020. Missing from the national debate over the HB-2 was any recognition of the fact that the Charlotte ordinance, by its own explicit terms, would have made sex-specific restroom and similar facilities unlawful.
One would think everyone involved in that debacle would have learned their lesson, but evidently that’s not true for some members of the Charlotte City Council. The Council is currently considering a draft ordinance that is very similar to the one that started the trouble back in 2016. Indeed, it is so similar that it is hard to see how it can be anything other than a deliberate act of provocation, i.e., a deliberate attempt to goad the General Assembly into doing something to protect the privacy of North Carolinians just as they did in 2016.
Rather ungrammatically, the new draft ordinance makes it unlawful to “deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of a protected class.” Equally ungrammatically, it defines protected class as “a person’s race, color, gender, religion, national origin, ethnicity, age, familial status, sex (including sexual orientation, gender identity and gender expression), veteran status, pregnancy, natural hairstyle or disability.” The draft ordinance also forbids the City from contracting with businesses that discriminate “because of a protected class” and makes it unlawful for businesses to post signs or otherwise publicize any intention to discriminate on that basis.
Like the 2016 ordinance, on its face the new ordinance appears to forbid discrimination on the basis of sex even for facilities like restrooms, locker rooms, shower rooms, and dormitories. Indeed, it appears to forbid the posting of signs on the doors of such facilities indicating that some are meant for men and others are meant for women. And, like the 2016 ordinance, the new ordinance would specifically delete the provisions in the existing City Code that provide exceptions for, “Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private,” for, “YMCA, YWCA and similar types of dormitory lodging facilities,” and for, “A private club or other establishment not, in fact, open to the public.”
So it isn’t that the City Council hasn’t thought through the implications of the draft language, nor (despite the bad grammar) is a matter of sloppy drafting. The members of the City Council who support this ordinance really do want to made it impossible for private businesses to cater to the privacy needs of their patrons with respect to restrooms, locker rooms, shower rooms, dormitories and similar facilities. Why would they do that unless they are hoping for a repeat of the HB2 debacle? Given that the vast majority of North Carolinians prefer for the sexes to be accommodated separately when it comes to restrooms and similar inherently private facilities, and given how much harm resulted when Charlotte adopted a similar ordinance five years ago, it’s hard to understand how the members of the City Council can be considering such a deliberately destructive course of action.