Letter writer: Why isn’t the governor pushing to fix HB2?

Graphic by Lori Deaton

I have a question.

A recent executive order issued by Gov. Pat McCrory adds sexual orientation and gender identity to the list of classes (such as race) against which North Carolina cannot discriminate in its own personnel practices.

The governor’s action makes sense because discrimination on the basis of sexual orientation and gender identity is just as bad as racism. In fact, it only makes sense if such parity is the case.

The state law known as HB2 established a list of classes (such as race) against which private-sector discrimination is now unlawful in North Carolina. The governor proclaimed this new statewide policy with much fanfare. He thought it was a real accomplishment. Almost as good as the recent Civil Rights Act of 1964.

Yes, yes, I know. The law is toothless because it’s not supported by a right to sue in state court, but that’s not what I want to fuss about here. Here’s what I want to fuss about: The list of protected classes in HB2 inexplicably excluded sexual orientation and gender identity.  This is one reason (though not the only one) why what could have been a beautifully cosmetic advance in state civil rights law is called Hate Bill 2 (or worse) by everyone familiar with its provisions. And the state is losing tons of business and good will as a result.

So now the question: If the governor sincerely believes that discrimination on the basis of sexual orientation and gender identity is just as bad as racism, why isn’t he pushing as hard as he can to get those groups added to HB2’s list of protected classes?

It cannot be because he thinks that state government has no business regulating discriminatory practices in the private sector. HB2 already does that. As does federal law. It can only be because he thinks either that LGBT people are less worthy of fair treatment or that they are less discriminated against in everyday life.

But the governor says no such things. He’s all sweetness and light on that score. Indeed, nary a  supporter of HB2 will confess to any animus toward the LGBT community or any disrespect for their legitimate concerns. The law, they claim, is about other matters entirely.

So what gives? Why aren’t sexual orientation and gender identity — against which discrimination is now prohibited in state personnel policy — recognized equally as protected classes under HB2?

I’ve raised this question with supporters of the law, and I have heard only evasions and bumptious sarcasm in reply. Do they have a mature response?

— Peter Robbins
Marshall

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48 thoughts on “Letter writer: Why isn’t the governor pushing to fix HB2?

  1. “The state law known as HB2 established a list of classes (such as race) against which private-sector discrimination is now unlawful in North Carolina. ”

    This statement is false. Classes protected from employment discrimination were established in state law in 1977 through enactment of provisions in Senate Bill 459 and they mirror federal standards: bit.ly/1X0MWIt

    Those classes listed in 1977 are, “race, religion, color, national origin, age, sex and handicap.”

    House Bill 2 added no new protected classes to state law and no changes to employment discrimination policy have been made since 1977. HB2 did clarify that the term “sex” as mentioned in the law is intended to mean “biological sex.”

    • Peter Robbins

      The statement is true. HB2 extended civil-rights protections to public accommodations not previously covered. The law also eliminated a private cause of action in state court, rendering employment protections effectively meaningless.

  2. “Why isn’t the governor pushing to fix HB2?”

    This is the classic loaded question. HB2 does not need fixing.

    • Peter Robbins

      This constitutes your answer to the question posed by the letter, Mr. Peck. Please don’t hijack the thread with any more off-topic comments. Others may wish to be heard.

  3. “The law is toothless because it’s not supported by a right to sue in state court”

    This statement is false. Restricting the right to sue in state court does not render the law “toothless.” HB2 does not preclude a person’s ability to file an employment discrimination claim in federal court, which is where most employment discrimination claims do and should be entered.

    If anything is toothless, it is the series of false claims made by letter writers to the Mountain Xpress.

  4. “The list of protected classes in HB2 inexplicably excluded sexual orientation and gender identity.”

    The exclusion of sexual orientation and gender identity is NOT inexplicable. This is the federal standard and was established in North Carolina law in 1977.

    That why the Employment Non-Discrimination Act has been introduced in every Congress since 1994, excepting the 109th: http://bit.ly/1Pdyo0V

  5. “It cannot be because he thinks that state government has no business regulating discriminatory practices in the private sector. HB2 already does that.”

    HB2 added no new regulations state non-discriminatory policy. HB2 only clarifies that in a Dillon’s Rule state local governments may not establish non-discrimination policies within their jurisdictions that apply to private businesses. In the event that new non-discriminatory policy is to be established, it should be done in a uniform way for all employees in the entire state and should properly be enacted by the state legislature.

    That’s why newly-appointed Representative Sgro introduced House Bill 1078 in the 2016 General Assembly:
    bit.ly/1YlLMWJ

    • Peter Robbins

      As was explained above, this statement is false. HB2 applies to public accommodations.

  6. “nary a supporter of HB2 will confess to any animus toward the LGBT community”

    And why should any supporter of HB2 “confess” to something that is non-existent? I dare say, the hasty writer might want to amend his presumptuous remarks.

    • Peter Robbins

      Really? You want to go there? Remember the comment of yours that was recently removed from the Xpress website? The one that started with the words “bug-eyed” and went downhill from there? I detected some animus.

  7. “why isn’t he pushing as hard as he can to get those groups added to HB2’s list of protected classes?”

    Again, the writer is fatally presumptuous. First, he has no knowledge of the Governor’s mind on the matter or in what way or how hard he may or may not be “pushing” to get those groups added to HB2’s list of protected classes. Second, if it’s any indication for him, in Executive Order #93, Section 2, signed by his own hand, Governor McCrory established new non-discrimination policy for state employees that now includes protections for sexual orientation and gender identity: http://bit.ly/1V6OIs2

    • Peter Robbins

      You haven’t answered the question: Why doesn’t HB2 protect sexual orientation and gender identity in the same way that the Governor believes state personnel policy should protect sexual orientation and gender identity?

    • Peter Robbins

      The letter was submitted for publication before those lawsuits were filed. I am pleased to let the Governor take credit for whatever state of mind they reflect.

  8. “The law, they claim, is about other matters entirely.”

    And so, in fact, it is about other matters entirely. The law is a response to an illegal ordinance passed by the City of Charlotte that, had it been allowed to proceed, would have effectively eliminated sex-segregated public accommodations in private businesses throughout its jurisdiction, giving legal access to criminal heterosexual male deviants and thereby putting women’s safety and privacy at risk.

    Women have fought for sex-segregated public accommodations for over a century (good for them) and the left is now determined to roll back that progress for the sake of partisan political agitation in an election year.

    The politics of the toilet: A feminist response to the campaign to ‘degender’ a women’s space
    by Sheila Jeffreys, University of Melbourne, Australia
    Women’s Studies International Forum 45 (2014) 42–51
    http://www.sheilajeffreys.com/wp-content/uploads/2014/08/toilet-article.pdfpublished-version.pdf

    Men who transgender base their campaign for access to women’s toilets on the problem of violence from other males in the men’s facilities. Their apprehension, however well-founded it may be, is not a reason for enabling their entry into women’s facilities because women have well-founded fears of being sexually assaulted by male persons. The specific needs and interests of women which led to the creation of women’s toilets, and remain valid concerns, are ignored or ridiculed by theorists and activists who seek to ‘degender’ the toilet. ‘Women’ are disappeared by the ideology of ‘gender’ adopted by these campaigners, who, inspired by queer theory and post-structuralist ideas about gender, essentialise it such that it is substituted for the biological difference of ‘sex’. Toilets for women were set up to enable women and girls to enter public space safely in systems of male domination, in which the female sex caste is subjugated and made vulnerable to sexual assault and harassment on the basis of sex. The uncomfortable reality of violence against women cannot be entirely eliminated through a change in language. Peeing in Peace defines a ‘Gender-Specific or Gender-Segregated Bathroom’ as one ‘intended for people who identify with a particular gender’ (Transgender Law Centre, 2005: 2). In fact those who continue around the world to campaign for women’s toilets, like those who did so in the West in the nineteenth century, do not see women as persons who ‘identify with a particular gender’ but as persons of the female sex, those subject under male dominance to violence and sexual assault from persons of the male sex. The loss of safe toilets for women at this juncture in the West as a result of campaigns to protect the right to ‘gender identity’ would be a serious step back from women’s equality

    • By way of addendum, I would share a video that illustrates an essential problem with the push to “de-gender” public accommodations. If this first-hand testimony by victimized women is of too little import to reach the writer’s sensibility, perhaps it is he that has another motive in casting blame in the direction of those who care about these sorts of things.

      https://www.youtube.com/watch?v=tg-MAMvkplE

      The individuals featured in this video speak from firsthand experience dealing with the issue of sexual abuse to explain why opening the women’s restroom to biological men is a harmful policy.

      • Jason

        Typical GOP HYPOCRITE; the state’s ever extending over reach disallowing municipalities from regulating themselves…. Where’s the small government PECK???

        • Jason

          Answer; there is none! Big government is “ok” when the religious right want government in your gay bedroom or in a woman’s uterus. BUT big government’s NOT OK when the GOP campaign financiers want to defund and privatize government agencies, and when the GOP campaign financiers want to continue their ever decreasing tax obligations.
          The GOP IS finally FALLING APART, because the the American public is FINALLY REALIZING THAT THEY campaign on religious social issues, but when elected they govern solely for the interest of their wealthy backers.
          GAME OVER!

        • “Where’s the small government PECK???”

          The small government, JASON!!!, is in the fact that HB2 rolled back the big government over-reach in the illegal Charlotte ordinance.

          The City of Charlotte passed a local ordinance that, if it had been allowed to take effect, would have applied to all public accommodation in the city, privately-owned and publicly-owned, and that was so broadly written that it would have allowed deviant heterosexual men legal access to women’s facilities.

          HB2 prevented all of that and it prevented other cities from repeating Charlotte’s folly. HB2 reduced the size and scope of government.

          • Peter Robbins

            Local government is normally not referred to as “big government.” That must be some aspect of libertarian theory.

            In any event, HB2 undeniably extends state regulation over public accommodations, and it does so in a way that illogically and inexplicably retards the advance of civil-rights protections for sexual orientation and gender identity — advances that the Governor himself freely admits are necessary in the area of state personnel policies. The view of the state apparently is that it won’t do what the Governor knows is right and it won’t let any local governmental entity do it, either. And that doesn’t even get into any of the other power grabs, such as establishing new statewide public restroom rules that no one in my part of the state ever dreamed were needed.

            That’s small government only in the sense of small-minded government.

          • Jason

            The governor is counter suing the federal government on the grounds of “overreach”; even you can see how hypocritical this is. If the state blocks municipalities from enacting their own laws; that’s blatant government over reach; hence BIG GOVERNMENT. You are also ignoring the most concerning aspect of this whole debacle…. The governor didn’t only step in to intervene Charlottes bathroom bill. The state further enacted laws disallowing ALL municipalities from enacting their own laws from this point on….. This is something the ignorant can’t seem to conceive; or are conveniently ignoring.

          • “The governor is counter suing the federal government on the grounds of “overreach””

            Yes. Counter-suing to reduce the size and scope of big government. The DOJ demand letter and lawsuit are arbitrary and capricious, a violation of due process, a violation of the APA, and a violation of the U.S. Constitution. Here’s the text of the counter-suit:
            https://www.documentcloud.org/documents/2827914-Lawmaker-Lawsuit-HB2.html#document/p1

            “If the state blocks municipalities from enacting their own laws”

            Nonsense. North Carolina is not a home rule state. It’s been that way ever since the Democrats set it up that way over 100 years ago. Cities only have the authority granted to them by the state legislature. Sometimes that grant of authority contains vague or open-ended permission and cities abuse that fact by pushing beyond the intent of the law prompting the General Assembly to step in and clarify the law. The Charlotte ordinance was such a case.

            Here’s how government works in North Carolina:
            https://www.nclm.org/resource-center/Pages/How-Municipalities-Work.aspx

          • Peter Robbins

            Whether Charlotte’s 1968 nondiscrimination ordinance, as amended, was authorized by state law is a matter of debate (which may be addressed in connection with pending the currently pending constitutional challenge). But even assuming, arguendo, that Charlotte acted outside its authority, there was nothing to prevent the legislature from correcting the putative problem by expressly conferring such authority upon local governments. The legislature cannot escape responsibility for its legislative choices by pretending that its action was forced. It seized power that it would have been wiser to cede to those in a superior position to understand local matters.

          • Peter Robbins

            And, of course, there was nothing — and still is nothing — to prevent the state from “clarifying” the law by expanding civil-rights protections statewide to sexual orientation and gender identity — a course of action which, as was discussed above, would be a logical continuation of the path already taken by the Governor via executive order.

          • “correcting the putative problem by expressly conferring such authority upon local governments. ”

            Nothing precludes expressly conferring such authority upon local governments. In fact, that’s how it has alway worked, as I have already pointed out. Sometimes, when appropriate, certain authority is conferred and sometimes it is not.

            See N.C.G.S. 160A: bit.ly/1sgYQ65

            I have neither the time nor the inclination to explain it all to you again.

            What is not appropriate is passing a local ordinance setting non-discrimination policy for all public accommodations within the local jurisdiction, as the City of Charlotte attempted. HB2 stopped that improper government over-reach. The proper way to change non-discrimination laws is through the state legislature, as is being pursued by Representative Sgro in House Bill 1078, which was referred to the House Judiciary Committee on May 11, 2016.
            bit.ly/1YlLMWJ

          • Peter Robbins

            What prevents the state legislature from extending civil-rights guarantees to the LGBT community is that a majority of its members dislike the LGBT community.

          • “What prevents the state legislature from extending civil-rights guarantees to the LGBT community is that a majority of its members dislike the LGBT community.”

            Once again, sir, you are talking out your ass.

    • Peter Robbins

      Then again, I may know them better than you do. I live here.

  9. Jason

    It’s an election year; the GOV doesn’t even have a pulse in the fight… He’s doing all he can to summon his ignorant constituency base to come vote for him on the issue…. Which bathrooms are 1/10 issue l, couldnt be explained in a way this uneducated/religious sheep constituency could understand…

  10. Jason

    Incredibly pitiful; I overheard someone say “I have a 6 year idol son! I don’t want a transgender moldering him in a restroom!”
    These uneducated people (whom generally vote republican) assume transgenders are all pedophiles

  11. boatrocker

    Wait- what? Jason, is there another Jason posting here or are you the same Jason who has posted about how lovely HB2 is in terms of ‘protecting the children’ and how jesus is the answer? Am I missing something?

    I am fully aware that there may be more than one Jason who posts here (as to whether some of the Rayndian far right crybaby posters actually live in Buncombe County I have no idea), but if you are the same Jason your tone seems to have spun on a dime 180 degrees.

    I actually enjoyed your comments about GOP small gub’ment hypocrisy and their implosion- the FOX under-educated American people have finally showed their true colors for supporting an orange haired bigot and turning their backs on the previous brand of insanity corporate funded insanity.

    Education matters. But McCrory is willing to piss away billions in education $ in order to have his way.
    It’s like NC is actively trying to go from #47 to #50 in terms of quality of education.

    A very wise man once started an organization and claimed “Racism/Discrimination + Capitalism = Fascism”.

  12. Huhsure

    HB2 is a Constitutional Monstrosity.

    http://theatln.tc/1WZ2Lzk

    “This bill is, not to put too fine a point on it, obsessed with sex, with genitals, with the sexuality of transgender people, and with the entire LGBT community. As a whole, it first stigmatizes and restricts transgender people, and only then goes on to sweep away existing protections against sexual-orientation discrimination. Its justification seems to be a fear of trans people as criminals and sex offenders. There is no evidence, other than hateful stereotype, that they are either.”

    • Peter Robbins

      I agree that the law is an abomination for many reasons. But what I don’t understand is why the Governor does not try to mitigate the adverse effect it is having on the state’s image by at least calling for civil-right protections (even toothless ones unsupported by a cause of action in state court) to be extended to cover gender orientation and gender identity. In the context of state personnel policies, he has ordered that extension, so he has no principled opposition. Why not pursue that result statewide in all relevant settings? His inaction leaves the Governor look like a cork bobbing helplessly in choppy waves he cannot control.

  13. Carp

    Ought to let Peck get the last word here in case the Cato Institute pays by the post. He’s really racked up in this thread!

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