Facing enormous pressure following the economic fallout over North Carolina's new anti-LGBT law, Republican Gov. Pat McCrory issued an executive order Tuesday that purportedly mitigated the original measure but was tantamount to putting lipstick on a pig.
First, it left in place and reinforced nearly all the anti-transgender provisions of the original law, so North Carolina transgender residents will still be prohibited from using the bathroom that corresponds to their gender.
The only change in policy the executive order might trigger is to give gays and lesbians who work for state government recourse in North Carolina courts if they were fired on the basis of their sexual orientation. While the executive order also potentially adds "gender identity" to the state government's employment nondiscrimination policy, such discrimination was already covered under federal law by Title VII, which prohibits gender-based employment discrimination.
North Carolina ACLU acting executive director Sarah Preston was not the least bit impressed and issued the following statement:
“Gov. McCrory’s actions today are a poor effort to save face after his sweeping attacks on the LGBT community, and they fall far short of correcting the damage done when he signed the harmful House Bill 2 into law which stigmatizes and mandates discrimination against gay and transgender people."
Let's unpack this executive order in more detail below the fold.
Tuesday, Apr 12, 2016 · 9:32:20 PM +00:00 · Kerry Eleveld
UPDATE: Here’s part of the LGBT rights group Lambda Legal’s response:
“The devastating blow of HB 2 will not be fixed by the band-aid of an executive order. While this is an improvement for the state employees it impacts, HB 2’s reach goes far beyond what the executive order addresses and that’s why we are challenging this extreme and discriminatory measure—in order to ensure that everyone who lives in and visits North Carolina is protected under the law.”
Below is what the governor claimed his executive order would do; the first three bullet points do nothing but reinforce the status quo.
•Maintains common sense gender-specific restroom and locker room facilities in government buildings and schools
•Affirms the private sector’s right to establish its own restroom and locker room policies
•Affirms the private sector and local governments’ right to establish its own non-discrimination employment policies for its own employees
•Expands the state’s employment policy for state employees to cover sexual orientation and gender identity
•Seeks legislation to reinstate the right to sue in state court for discrimination
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The fourth bullet point is the only one that has the potential to make a difference for state employees and, if so, it only potentially adds meaningful protections on the basis of sexual orientation since that’s not explicitly covered by federal law. (Courts have increasingly viewed gender identity discrimination as a form of gender discrimination already protected by Title VII, and some lawyers argue that the same is true of sexual orientation). But in addition to Title VII protections, government workers are already afforded added protections by the U.S. Constitution, according to the ACLU's Chase Strangio, who specializes in transgender issues.
Of course, even if the order did strengthen employment protections (which it may in fact not do), it does nothing to correct the state's discriminatory bathroom policy.
Overall, the ACLU’s Strangio said the language of the executive order was "vague," at best, in the area of employment protections.
"It is very vague in the wording and it is unclear whether it does anything to protect LGBT workers. Notably it does not say that discrimination based on 'gender identity' and 'sexual orientation' shall be prohibited," he said, referring to Section 2 of the actual order.
Section 2 states that McCory "affirms" the state is committed to administering its human resources policies "without unlawful discrimination" on the basis of 11 characteristics, including sexual orientation and gender identity. In other words, it never explicitly bans discrimination.
So it may not actually add any LGBT protections at all that weren't already covered, Strangio concluded.
"No matter what this political and empty EO does, the Constitution of the United States already prohibits discrimination against government employees,” he said.
The last bullet point on reinstating the right of all workers to sue for discrimination is merely a wish. Meh, why not? Since HB2 stripped that right statewide.
So what we have here is bloated pile of legal mush that's a little like a doughnut—sure, it might look good but all it delivers is a whole lot of empty calories that ultimately weigh you down with unwanted fat.