It was pointed out today by journalists in Charlotte that the Charlotte City Council did not, in fact, repeal all of the provisions of their non-discrimination ordinance, as part of the deal struck to gain the repeal of HB2.
I wasn’t privy to the details of that deal — and all I have seen online is various secondhand interpretations. But here’s what I can say, definitively, about what Charlotte’s City Council did & did not do.
The resolution they passed on 12/19 contains the following salient provisions:
Section 2: Having been preempted and invalidated by S.L. 2016-3, Article III of Chapter 12, subsections (1) and (2) of Sec 12-81, and Sec 12-82 are hereby removed from the City Code.
Section 4: Having been preempted and invalidated by S.L. 2016-3, subsection (i) of Sec 22-31 are hereby removed from the City Code.
Section 5: This ordinance shall be effective upon adoption. However, should S.L. 2016-3 not be repealed in its entirety by December 31, 2016, this ordinance shall not be valid.
That’s all very well and good, EXCEPT for the fact that the original Charlotte ordinance that triggered the whole HB2 kerfuffle in the first place also amended the following sections of the Charlotte City Code, which they didn’t change back yesterday:
Article V, Chapter 2, sections 2-151, 2-152, 2-153, 2-166, 2-167 (these all dealing with the city’s ability to insert non-discrimination clauses into contracts with city vendors, and to refuse to contract with vendors who discriminate, including on the basis of gender identity)
Article II, Chapter 12, sections 12-27, 12-29 (giving the community relations committee the ability to report on & provide guidance on reducing discrimination, including on the basis of gender identity)
Another interesting detail: the original March ordinance DELETED Article III, Chapter 12, Sec 12-59, which read in full:
Sec. 12-59. Prohibited sex discrimination.
(a) It shall be unlawful to deny a person, because of sex, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a restaurant, hotel, or motel.
(b) This section shall not apply to the following:
(1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.
(2) YMCA, YWCA and similar types of dormitory lodging facilities.
(3) A private club or other establishment not, in fact, open to the public.
The City Code used to prohibit sex discrimination in restaurants, hotels & motels, *except* for restrooms — but when the Council passed their resolution in March, they deleted that part. It wasn’t replaced explicitly, but it was replaced generally by the language that was inserted throughout section 12, specifically in 12-58:
Sec. 12-58. -Prohibited acts. (a) It shall be 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 race, color, religion, sex, marital status, familial status, sexual orientation, gender identity, gender expression, or national origin.
The italicized part: “sex, marital status, familial status, sexual orientation, gender identity, gender expression” is what was added throughout the section to broaden their non-discrimination language.
So they replaced a single sex-based carve-out in 12-59 for restaurants, hotels, & motels (that had a restroom exception) with a broad prohibition against all manner of sex & gender discrimination in public accommodations, which had no restroom exception. Which was a big part of the issue that triggered HB2.
Then yesterday they repealed the entirety of their non-discrimination code in Chapter 12, including the legacy stuff about race, color, religion, or national origin.
I see a couple of issues here. First, as I pointed out at the top, they didn’t repeal all of the code that they passed in March. This may or may not be a sticking point in the deal that they struck.
Second, in repealing all of Article III, Chapter 12, they essentially repealed all of their non-discrimination language from their City Code. Do they plan to go back and restore it in January? And if so, will they restore the restroom & shower room exception that was stricken back in March, along with it?
I feel like there is another shoe waiting to drop, particularly since the 12/19 resolution also contains the following paragraph:
WHEREAS, in the event that the North Carolina General Assembly grants or restores the authority of the City to enact ordinances on the matters that were the subject of the preempted and invalidated ordinances, the City Council could enact new ordinances.
You can read the Charlotte municipal code to your heart’s content here.