Skip to content
Breaking News Alert This Week In Lawfare Land: 'Deadly Force'

The Truth About North Carolina’s Bathroom Bill


Overblown outrage and feigned offense have been the overwhelming reaction to North Carolina’s common-sense House Bill 2, which requires individuals to use the public bathrooms and showers that correspond to their birth sex.

Celebrity after celebrity, corporate giants, and even U.S. governments with similar policies have boycotted or threatened to boycott the Tarheel State because of a perceived and unfounded perception that this law is discriminatory to the LGBT community. The Obama administration has upped the ante by threatening to pull $4.8 billion in federal taxpayers’ funds from the state unless it repeals the bill by May 9. State officials have said they will not do so.

This outrage has been directed toward North Carolina when 29 other states do not offer special protections to people who use the LGBT designation. The part making liberals pull their hair out is the section known as the “bathroom bill.”

This section of HB2 simply and justly states that persons must use the bathroom and locker room that identifies with the gender on their birth certificates. It also states that municipalities requiring different sexes to share public accommodations is inconsistent with North Carolina’s law and constitution. This increases legal protection for schools, civic organizations, and especially small business owners.

The majority of media outlets are failing to report a tremendous amount of information that surrounds this law. Those omissions are extremely detrimental to those of us who are married to common sense as a way of life.

Blame how North Carolina is being portrayed nationally can sit many places, but one of those places is definitely not Gov. Pat McCrory’s office. The North Carolina legislature, with the exception of changing how discrimination lawsuits are filed (now done federally within 180 days) also bears little blame. I will explain why.

Reason 1: The North Carolina Constitution Forbids Charlotte’s Actions

Many will, for their convenience, call the constitution an evolving document. I understand the point, but until the constitution evolves by amendment or legal interpretation, municipalities cannot simply break its tenets. To that point, the NC constitution for 180 years “has held to the public policy that issues of labor and trade would be decided on a statewide basis instead of locally. And so, without any legal authority whatsoever,” says Rep. Paul Stam, the city of Charlotte decided to go against that. It enacted an ordinance requiring all government and business bathrooms and showers to be open to all sexes.

The Charlotte city council had no authority to enact its ordinance, much less threaten tens of thousands of businesses with fines and minor punishments if they didn’t comply.

The Charlotte city council had no authority to enact its ordinance, much less threaten tens of thousands of businesses with fines and minor punishments if they didn’t comply. They were threatening 23,000 businesses and nonprofits, including small “mom and pop” establishments, with fines and other minor punishments if they didn’t conform to that policy. Such threats are tyrannical when it was known that the ordinance they were discussing was beyond their purview.

This constitutional standard is not unique to North Carolina. North Carolina is one of at least 37 states like Virginia where cities and towns cannot pass rules or regulations that exceed the authority given to them by the state. This practice assures that laws and policies are consistent throughout a state and do not change with every border or small town.

Minimum wages, labor policy, and even union statutes are set at the state level, and the Charlotte city council knew this. So in passing the bathroom ordinance, Charlotte had exceeded its authority by setting rules that had ramifications beyond the city. They were going to unjustly punish non-compliant entities as of April 1, 2016, if the NC legislature failed to act.

Reason 2: The Legislature Offered Charlotte a Compromise

Much like our Congress in DC yielding to the Obama administration time and again on budget and other issues, the NC legislature and even the governor’s office offered advance notifications and compromises on the bill so it could stand without being a national circus. McCrory wrote council members that the bathroom provision would likely cause “immediate state legislative intervention.” So the knowledge of what would occur in Raleigh was known before they attempted this power grab.

It clearly was their intent to force this bathroom issue out in the open and claim the LGBT community as victims.

The Charlotte City Council narrowly defeated in March 2015 a measure resembling the one it later passed, even after removing a section that would have allowed bathroom use based on gender identity. Council members voted to remove the bathroom provision from the ordinance. But two council members, John Autry and LaWana Mayfield, voted against that version of the ordinance out of “principle,” feeling it was only beneficial to have the full sweeping legislation enacted instead of accepting the council’s version, which would have extended many protections to the LGBT community. It clearly was their intent to force this bathroom issue out in the open and claim the LGBT community as victims.

Local officials later announced that transgender people could use the bathrooms corresponding to their gender identity in city- and county-owned facilities. Yes, that is correct: Charlotte already had enacted the gender identity and transgender clauses for city and county facilities, and this recent ordinance was simply the final push to force those same standards on private business owners and all public accommodations.

Various members of the legislature reached out to the council before its vote, asking that the “bathroom/locker room” provision be removed to avoid any possible public battle. The recommendation to create unisex facilities was additionally mentioned. We know the answer to those requests was a blatant no. Yet conservatives are the ones being portrayed as stiff, harsh, and difficult to work with.

Reason 3: Charlotte’s Council Sought Notoriety

Major news outlets have failed to mention this was not the first time an ordinance of this type had come up in Charlotte. November 24, 2014, saw Scott Bishop, of LGBT political organization MeckPAC, during the Charlotte city council’s dinner meeting mention he had already spoken with City Attorney Bob Hageman and the Charlotte Mecklenburg Community Relations Committee about adding five categories, including transgender and gender identity and expression, to the city’s non-discrimination list. The council then ordered Hageman to write up said changes for its later review.

This entire ordinance was an enormous exercise in special interests compromising the rule of law.

Democratic Mayor Dan Clodfelter expressed support for adding gay and transgender persons to the list of protected classes. Subsequently the city council held a public hearing in advance of the vote, which drew 117 speakers. The ordinance received an amendment removing restrooms, locker rooms, showers, and changing rooms from the proposed changes. The amended ordinance was voted down 6-5, mainly because some Democrats felt it did not go far enough.

Fast-forward to 2015, when Charlotte elected a new mayor who openly supports the full failed ordinance, and two new Democratic members, Julie Eiselt and James Mitchell, who openly support the initiative. Then, partially based on the U.S. Department of Education’s 53-page guidance document for schools that receive federal funding through Title IX, the emboldened Left decided to bring back the issue.

That guidance says “discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” and “the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.” The Charlotte city council interpreted this to mean the transgendered should have the right to use facilities that correspond to how they view themselves. I wonder if that means Rachel Dolezal, a white woman who lived as a black woman, can also state that on her drivers’ license and have her birth certificate changed.

Notice what this information infers. The council and city LGBT activists were continually working to bring this ordinance into effect. Meetings and orders were given to start it in motion before the public had any knowledge of it. This entire ordinance was an enormous exercise in special interests compromising the rule of law. The Charlotte mayor and city council contrived North Carolina’s current place in public opinion, and although the law supports the governor and legislature’s response, the media will never reveal that fact.

Reason 4: Attorney General Roy Cooper Has Abandoned His Duty

How many times have we seen the media rip a person to shreds for not following the law because of a religious or other deeply held belief? Think of the ardent demands for those with an objection to gay marriage to do their jobs or quit. Why has that not applied to NC Attorney General Roy Cooper, who is refusing to enforce HB2?

Can he passionately defend the laws when he has decided to criticize them and said standing up for the laws of NC is a waste of time and money?

This isn’t an isolated abandonment of his duties, either. He has sat for four terms as the state attorney general and defended Democratic failures and leaders in court even after they were out of office. Cooper fought doggedly in court for former governor Mike Easley, who ordered at least three public information officers to destroy emails and communications in violation of state law. Cooper fought for the State Bureau of Investigation despite its repeated failures. The SBI withheld or distorted evidence in more than 200 cases at the expense of potentially innocent men and women, according to the Raleigh News and Observer. That and other issues gain Cooper’s dedicated support.

His position makes him the lawyer for the people of North Carolina. He defends the state’s positions and laws, which normally means the state public officials and policies. Instead of him fulfilling that duty, NC has had to hire an outside firm to fight the U.S. Department of Justice over voter ID laws. Cooper’s public statements against the law are actually in the DOJ’s briefs and complaints.

Can he passionately defend the laws when he has decided to criticize them and said standing up for the laws of NC is a waste of time and money? He refused to defend the state after more than 61 percent of the population voted against gay marriage. McCrory has called on Cooper, a Democrat now running for governor in 2016, to “battle the ACLU and President Obama’s attempt to force local districts to open sex-specific locker rooms and bathrooms to individuals of the opposite biological sex” by joining a federal civil rights case involving a 16-year-old transgender teen in Virginia. Cooper will not do his job, for his own reasons.

Remember, in North Carolina the General Assembly has the ultimate power over municipalities. Legislators could strike down an entire ordinance, or they could eliminate the provision that allows for bathroom flexibility. They are asking the attorney general to enforce the law, and he will not. If Cooper had acted on his job description and not his opinion, the Charlotte city council would have trod down this illegal path less boldly.

Consider some ramifications of the ordinance that violate the NC constitution. Under the ordinance, it would have been illegal:

  1. For the government of Charlotte to do business with anyone who had not allowed shared restroom use for gender identity disagreements;
  2. To deny “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation” based on the gender identity category;
  3. and to make and circulate any statements or signs indicating that public accommodation will be refused based on those categories (notifying individuals that restrooms are not shared).

Think of being fined or losing contracts because you didn’t allow males and females to share locker rooms or restrooms. A third offense against this ordinance was to result in jail time. Even building a unisex facility would not have qualified under this ordinance, unless it was a business’s only accommodation. It required any single-sex facilities to be opened to the opposite sex.

The ordinance also struck down a section exempting the YMCA, YWCA, and similar dormitories from a law ensuring equal access to services and facilities based solely on sex. The attorney general could have at any time expressed to local governments the multitude of problems these tenets contained, but he did not. His inaction and inefficiency while seeking personal promotion deserve more blame than does the NC governor or legislature.

There are more reasons LGBT advocates are wrong in this case, but we will hold with the aforementioned for now. The NC legislature did make a mistake by going beyond the scope of the bathroom issue and addressing the way discrimination is reported and filed in North Carolina. The change principally stops those who feel they are discriminated against from going to a local court. They now must file with the Equal Employment Opportunity Commission. They previously had three years to file, and now only have 180 days. The damages under NC law were uncapped, and now under federal law the cap is $300,000.

Those parameters were a mistake and the governor has addressed that directly. The much larger issue is the formulation, execution, and misinformation about the process in Charlotte that caused HB2 to be written and passed. There is a lot of blame for the attacks on the Tarheel State, and most of it shouldn’t be placed in the capital city of Raleigh, but further down I-85 with the leaders of the city of Charlotte and their gamble against common sense.