Feeling the sting of ongoing criticism directed at his state following the March 24 enactment of H.B. 2, North Carolina Governor Pat McCrory (R) issued an executive order on Tuesday, April 12, that ostensibly reaffirms the state’s commitment to equal rights, including for LGBT individuals. The executive order seeks to undo the PR damage done by passage of the controversial “bathroom” law, which struck down a local Charlotte ordinance and mandates that transgender individuals must use public bathrooms consistent with their gender at birth. Executive Order No. 93, “To Protect Privacy and Equality,” purports to clarify existing state law and also provide new protections from discrimination for residents. According to a press statement from McCrory’s office, Tuesday’s action maintains “common sense gender-specific” restroom and other facilities in government buildings, and empowers private sector entities to set their own policies with respect to restrooms and other facilities. It also affirms the right of the private sector and local government to establish their own nondiscrimination policies in employment, according to the governor. The EO also expands the state’s EEO policy “to clarify that sexual orientation and gender identity are included,” he notes. “With this Executive Order, the State of North Carolina is now one of 24 states that have protections for sexual orientation and gender identity for its employees,” McCrory said. But some observers have pointed out that the EO does not quite do what he says it does. With respect to North Carolina’s EEO policy for state workers, the text of the EO states: “I hereby affirm that the State of North Carolina is committed to administering and implementing all State human resources policies, practices and programs fairly and equitably, without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information, or disability.” What is “unlawful?” Here’s the rub: the reference to “unlawful” discrimination means the EO has no effect on what is currently lawful discrimination against LGBT residents. There are no existing provisions under state law protecting residents from discrimination based on sexual orientation or general identity—rendering any commitment to barring “unlawful” discrimination meaningless. Moreover, despite the governor’s assertion that his EO affirms the right of local governments to enact nondiscrimination policies inclusive of LGT individuals, HB 2 stripped localities of the right to ban such discrimination—and an executive pronouncement from the governor’s office doesn’t trump HB2’s clear provisions to the contrary. As such, EO’s sweeping pronouncement is all the more illusory. McCrory’s EO does, however, encourage the state’s general assembly to introduce legislation that would undo a provision in HB 2 that (unintentionally) stripped victims of wrongful discharge from a common-law cause of action in state courts under the North Carolina Equal Employment Practices Act. Of course, it will take the state legislature to turn McCrory’s stated intention into force of law.
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