New local LGBTQ protections could set up a fight with the General Assembly

This week, three towns in Orange County passed LGBTQ-inclusive non-discrimination ordinances, the first since a state ban on such local protections expired last month.

The move by the towns of Hillsborough, Carrboro and Chapel Hill signals the willingness of progressive communities to wade back into a civil rights fight that exploded in 2016 with the North Carolina General Assembly’s passage of House Bill 2. That controversial state law excluded lesbian, gay, bisexual and transgender people from statewide nondiscrimination protections and ignited a political fight in the state that drew international headlines.

Next week, the Orange County Board of County Commissioners and the Durham City Council are expected to pass similar ordinances. Other towns, cities and counties across the states are poised to follow.

“Especially right now, it’s heartening to see these three communities in North Carolina – and more to come next week – reject the politics of division,” said Allison Scott, director of Policy & Programs at the Campaign for Southern Equality. “These ordinances not only establish concrete, clear protections from discrimination but also send a message that everyone deserves respect, dignity, and equality. We applaud the leadership of these lawmakers and cheer on the momentum that these ordinances signal for LGBTQ North Carolinians across the state.”

HB2 led to mass protests, lawsuits and state boycotts that ultimately cost the state more than half a billion dollars and led to a partial repeal. But that law’s successor, House Bill 142 , locked in place a ban on new LGBTQ protections — including nondiscrimination ordinances for employment and housing — until December 2020.

HB 142 still prevents any governing body besides the General Assembly from regulating access to multiple occupancy restrooms, showers or changing facilities. Conservative lawmakers and activists had seized on this issue in the HB2 fight.  They based their argument on whether transgender people could choose a bathroom that matched their gender identity as one of safety for women and children.

But LGBTQ advocates stress that the protections lost under HB2 and HB 142 went far deeper. The three ordinances passed this week address discrimination in housing, employment and public accommodations unrelated to restrooms. That’s long overdue, advocates say, and an important step for the state.

“North Carolinians have amazingly stepped up and demonstrated that our state is a beautiful place to be LGBTQ,” said Kendra Johnson, executive director of Equality NC. “For too long, North Carolina has lagged behind the rest of the nation when it comes to protecting LGBTQ folks and creating a culture where our most vulnerable can thrive. The tides are changing, and we hope other cities and towns across our state will be encouraged by these victories and do the right thing for their own citizens in the weeks ahead.”

A political — and personal —  commitment

Many of the communities have been waiting years to pass these new ordinances. Some of their leaders were elected during the HB2 fight and have spent their entire tenure in local government looking forward to enacting LGBTQ protections.

In a special meeting five years ago, Carrboro’s town council committed to passing non-discrimination protections as soon as it became possible. It’s a promise residents have never forgotten.

“It’s been really interesting to me to hear how many people remember us having that meeting nearly five years ago and how many people remember us making this commitment to our neighbors,” said council member Damon Seils. “So that’s been pretty gratifying.”

Carrboro’s ordinance goes further than Hillsborough’s or Chapel Hill’s in that it lays out specific consequences for violations. “Any person, firm, or corporation” violating the ordinance would be guilty of a Class 3 misdemeanor, the ordinance reads, and subject to a $500 fine every day as long the discrimination continues. Each of those daily violations “shall be deemed a separate offense.”

Any violator of the ordinance would be subject to “an appropriate equitable remedy, including but not limited to a mandatory or prohibitory injunction commanding the defendant to correct the conduct prohibited under this Article.”

It was important to lay out remedies and penalties for a few different reasons, said Carrboro Mayor Lydia Lavelle.

“Not that I necessarily anticipate we will have many if any large number of people who are violating this,” Lavelle said. “But I kind of feel like we understand that it’s such a strong value to this community we wanted to have some teeth in it. And because we know this is ultimately an ordinance that others might see and try to replicate or duplicate.”

Beyond the political significance, several of local leaders shared that these new ordinances are personal for them.

“I have a trans kid,” Hillsborough Commissioner Mark Bell said. “The thought of my kid in the future losing employment, health care or being discriminated against — especially under the grounds of someone’s religion — is offensive.”

Chapel Hill Mayor Pam Hemminger also shared that the move is personal. Her son, a gay man, works as an emergency room resident. He puts his life on the line every day in the COVID-19 pandemic devastating the state and the nation, she said.

“There is no reason he should be expected to be treated differently, or not get a hotel room or any of those kinds of things things,” Hemminger said. “I want to fight for a just world. I’m proud of this community. I’m proud of this council and the collaborative work we’ve been doing together, where everyone has equal rights and everyone gets the respect they deserve.”

Chapel Hill Town Council member Karen Stegman said she had been waiting to cast her vote in favor of these new protections since she joined the council three years ago. “I’m so proud that after his vote I will be able to say to the LGBTQ community — including my wife and my kids — that from this day forward not only are you welcome, but you are safe and you are protected in Chapel Hill.”

HB2 Round Two?

The new ordinances lay the ground for a new confrontation with the General Assembly, which convened for an organizational session this week and will return to Raleigh Jan. 27.

HB2 came about when conservative lawmakers objected to the Charlotte City Council passing a non-discrimination ordinance in the absence of LGBTQ protections at the state level. The legislature’s Republican majority has maintained that towns and cities going farther than the state on such protections was at the root of all that followed.

Though no lawmakers have yet telegraphed their intentions to file legislation to block local non-discrimination agreements, conservative activists are already calling for action from Republican legislators.

Tami Fitzgerald, the head of the NC Values Coalition, has for months been warning against new local non-discrimination ordinances when the state prohibition against them expired.

“Ordinances like the one you’re considering tonight undermine fairness and freedom,” Fitzgerald told the Hillsborough Board of Commissioners before they passed their ordinance Tuesday. They “advance discrimination against people of faith” by dictating how they do business with regard to LGBTQ people with no religious exemptions, Fitzgerald said.

Hillsborough Mayor Jenn Weaver, the daughter of a minister, rejected that notion. “I would offer that this reflects the values of our community,” Weaver said.

“My father was a pastoral counselor for over 40 years,” Weaver said. “He went to Union Seminary and was ordained at Binkley Baptist here and I grew up in Myers Park Baptist Church down in Charlotte. It was what I learned from my father and that upbringing that leads me to support this ordinance and the protection of all the people listed therein.”

Democratic leaders at the local and state levels acknowledge Republican reaction to the new ordinances could lead to another political standoff. But they say they’re better prepared this time around.

Democratic lawmakers say Gov. Roy Cooper will veto any new assaults on non-discrimination ordinances. Though Democrats lost seats in the General Assembly in November’s elections, they still have the votes to sustain his veto.

“I want to think optimistically that we can work across the aisle and keep those kinds of prohibitions from happening to our cities,” said State Rep. Susan Fisher (D-Buncombe) said last month in a forum on new ordinances. “But the truth of the matter is I think there are folks who were watching for this day and making plans for what they might do to reverse it or reestablish a bill like 142.”

In Carrboro, town council member Jacquelyn Gist said town leaders have already seen resistance to the new ordinance in a flood of form letters.

“We have gotten well over 100 emails from Christians that are entitled ‘Oppose Anti-religious liberty ordinance,’” said council member Jacquelyn Gist.

Speaking as a Christian, Gist said, the ordinance is about protecting liberty — religious and otherwise — by protecting everyone’s rights. “Religious liberty to me means the liberty to believe what you want to believe,” Gist said. “It means liberty and freedom from religion as much as it means liberty to have religion.”

“The push out there to limit peoples’ religious faith and how they live it is really, really dangerous,” Gist said. “It means working toward a state religion. What we’re doing here is working toward a government that’s free from religion. I personally believe faith is meaningless if you’re told you have to have it.”

The new ordinances may well provoke a reaction from state legislators, local leaders said — but they wouldn’t be necessary if North Carolina had state level protections.

Passing local protections makes North Carolina the 48th state that has either statewide or local protections, Lavelle said.

“So we were really an outlier when we had the ability to do this until December 1,” she said. “Forty-seven other states either have protections like this or they allow their cities, counties, towns to do this. And so, this is not like some odd thing that we’re suddenly allowed to do here in North Carolina.”

With the state and nation badly politically divided, Democratic and Republican state leaders called for bipartisanship and mutual respect during Wednesday’s organizational session at the General Assembly. Legislators have to come to disagreements with the assumption of good faith on all sides, said Senate President Pro Tem Phil Berger (R-Rockingham).

“That way we can bicker and barter back and forth and at day’s end still see one another as a colleague, not a foe,” Berger said.

“Basic decency comes under threat when we assign base motives to each other at times of disagreement,” Berger said. “We become an unhealthy body when we conclude a difference of opinion is born from a darkness in one’s heart rather than an honest difference in one’s mind. When that happens we do not represent our constituents in the high manner they deserve. We cannot demonize one another’s motives one day and expect to successfully work collaboratively the next.”

But the question of LBGTQ rights could put those sentiments to an early test this year.

During the HB2 debate — and in lawsuits stemming from it — Republican legislators and conservative activists have insisted that transgender identity does not exist except as untreated mental illness.

That position is at odds with the view of the mainstream medical community, from the doctors who actually work with transgender patients to the American Medical Association and American Psychiatric Association.

State Treasurer Dale Folwell, a conservative Republican and former state lawmaker, also opposes coverage for any transgender care through the State Employee Health Plan.

Blue Cross/Blue Shield of North Carolina, which administers the plan, recognizes gender dysphoria as a serious medical issue and covers treatments related to transition, including talk therapy, hormone therapy and gender confirmation surgery. But Folwell and the plan’s trustees — appointed by Folwell and the General Assembly — opted out of continuing to provide that coverage.

The Republican majority in the legislature has also resisted persistent calls to outlaw so called “conversion therapy,” a scientifically discredited practice that aims to “cure” people of being lesbian, gay, bisexual and transgender. The practice is now illegal in 20 states including neighboring Virginia. But despite polls showing overwhelming bipartisan support for a ban, bills to outlaw the practice for minors in the state have not been allowed a vote.

Assuming good faith and respecting a difference of opinion becomes impossible, LGBTQ advocates say, when the members of one political party deny mainstream medical science in order to deny the rights — and very existence — of marginalized people.

“LGBTQ North Carolinians – especially transgender people like me – have lived under the trauma and erasure of anti-LGBTQ laws in our state for too long,” said Scott, with the Campaign for Southern Equality.

With that history — and plenty of political fights to come — Scott said the passage of new local protections is a relief. “We live in divisive and challenging times, so seeing local communities unite to pass common sense legislation protecting their neighbors from discrimination is an inspiring breath of fresh air,” Scott said.