By Andrew Dunn, Carolina Journal

The city of Charlotte is set to approve an ordinance aimed at barring businesses and employers from discriminating against people based on transgender identity and other “protected classes.” The measure is similar to the one that launched the “Bathroom Bill” controversy in 2016 and led to a significant fundraising advantage for Democrats in that year’s elections.

Now, the 2022 elections are on the horizon and the replacement for House Bill 2 has expired. So, the Charlotte City Council, with a 9-2 Democrat majority, is considering an ordinance again.

Democrats and Republicans on the City Council agree these groups should be protected from discrimination. But opponents of the measure fear small business owners may be forced to violate their religious beliefs or risk losing their businesses.

Under the proposal, businesses in Charlotte would be prohibited from denying service to people falling under new protected classes, including sexual orientation, gender identity, gender expression, and natural hairstyles.

Businesses of 14 or fewer employees would also be barred from firing or refusing to hire people within these classes. Under a Supreme Court ruling from 2020, larger employers are already prohibited from discriminating based on sexual orientation or gender identity.

Exemptions in the ordinance made for inherently private facilities, like bathrooms, were struck from the language in the most recent draft published on the Charlotte City Council’s website. Also struck from the language were exemptions for religious organizations. Still, the city attorney said in the presentation the ordinance is not “intended” to deal with bathroom policies, and religious institutions are not intended to be covered under it. Calls to the Charlotte city attorney’s office asking for clarity were not immediately returned.

Council members first discussed the proposal at a meeting Monday, Aug 2. After a public hearing Monday, Aug. 9, the council is likely to vote formally to approve it.

Differences from 2016

The new nondiscrimination ordinance is Charlotte’s first such proposal since 2016. That year, Charlotte passed a sweeping move creating new protections for the LGBT community, while also requiring businesses to allow transgender people to use the bathroom of their gender identity rather than biological sex.

In response, the General Assembly passed H.B. 2, which invalidated local nondiscrimination ordinances and required people to use the bathroom of their sex in public buildings. The law led to a national outcry, with companies like PayPal and Credit Suisse canceling planned expansions in North Carolina and entertainers like Bruce Springsteen canceling concerts.

H.B. 2 was also a key issue in the 2016 gubernatorial race, in which then-Gov. Pat McCrory lost to Roy Cooper, who campaigned on repealing the law.

In a 2017 deal struck to repeal H.B. 2, cities were prohibited from passing nondiscrimination ordinances until December 2020.

Once that deadline passed, cities including Hillsborough, Chapel Hill, Durham, Greensboro, and Asheville have all passed nondiscrimination ordinances. Their ordinances also create new protected classes including LGBT characteristics. Several impose fines of $500 per day for violations.

Charlotte’s does not mandate a penalty. Instead, alleged violations would be investigated by the Charlotte-Mecklenburg Community Relations Committee, which could then refer the matter to the city attorney for prosecution.

Charlotte’s proposed ordinance also initially sought to avoid key flashpoints from the 2016 debate, most notably the bathroom and locker room issue. But this may be changing.

A Republican version

As other N.C. cities began passing their nondiscrimination ordinances, Republican Charlotte City Councilman Tariq Bokhari collaborated with the Mecklenburg County Young Republicans on a version of an ordinance that he said would protect personal and religious freedom. It was publicly released in June.

The Republican proposal would also bar discrimination in public accommodations based on LGBT characteristics or natural hair. This proposal’s employment protections would encompass all businesses, but a wider category of religious organizations would be exempted. In addition, it would add political affiliation as a protected category and also specifically states that people would not be forced to violate their rights against compelled speech.

That version was largely discarded in favor of the version proposed Monday.

During Monday’s discussion, Bokhari put forward an amendment to the ordinance that would add discrimination based on political affiliation to the Charlotte proposal. It was shot down by a 9-1 vote.

“They speak out of both sides of their mouths,” Bokhari told Carolina Journal. “They’ll say, ‘We cannot accept discrimination,’ ‘We will protect LGBT people or someone with natural hair,’ but they won’t protect someone who is fired for being a registered Republican or who isn’t served coffee because they walked in wearing a Republican shirt.”

Politics over Policy

The proposed ordinance is strikingly similar to the one that launched the H.B. 2 controversy. Policy experts see a bevy of lawsuits likely, but also a political agenda.

“Indeed, it is so similar that it is hard to see how it can be anything other than a deliberate act of provocation, i.e., a deliberate attempt to goad the General Assembly into doing something to protect the privacy of North Carolinians just as they did in 2016,” said Jon Guze, senior fellow of legal studies at the John Locke Foundation, said in a column this week entitled "HB2 Déjà Vu."

Whether Republican lawmakers take the political bait or not remains to be seen, but the nation knows how it played out in 2016. The H.B. 2 legislation gave Cooper a foundation for extensive out-of-state fundraising and a subsequent boost to his gubernatorial campaign over McCrory. Now, with 2022 elections looming, Guze says that Democrats on the City Council may be hoping to catch lightning in a bottle twice.

“The members of the City Council who support this ordinance really do want to make it impossible for private businesses to cater to the privacy needs of their patrons with respect to restrooms, locker rooms, shower rooms, dormitories, and similar facilities,” said Guze. “Why would they do that unless they are hoping for a repeat of the H.B. 2 debacle?”

Religious liberty in question

Tami Fitzgerald, executive director of the N.C. Values Coalition was active in the fight against the 2016 Charlotte ordinance and continues to question whether the city has the legal authority to enforce such a measure under its charter.

“They’re most certainly going to see a lawsuit,” she said.

While religious organizations aren't intended to be affected by the Charlotte ordinance, Christian owners of wedding service companies or other businesses may be targeted. She drew parallels to a situation in Colorado, where a cake baker named Jack Phillips has been repeatedly sanctioned by the state for refusing to create custom cakes to celebrate same-sex weddings or gender transitions. She also cited a case in Washington state in which a florist was fined by the state after refusing to make flower arrangements for a same-sex wedding.

Under the Charlotte ordinance, florists, cake decorators, and wedding venues in Charlotte may be required to provide services for LGBT events regardless of the owner’s religious beliefs.

“People who do not want to participate in a same-sex wedding will be compelled to do so or lose their business,” Fitzgerald said. “You shouldn’t have to comply with the government’s definition of marriage or what it means to be male or female in order to stay in business.”

The Charlotte City Council is scheduled to discuss and possibly vote on the proposed ordinance at its meeting on Aug. 9.