On March 23, 2016, the North Carolina General Assembly passed HB2, the “Public Facilities Privacy & Security Act,” which Governor McCrory signed later that same day. In the weeks since HB2 became law, the full scope of the discriminatory impacts permitted by the bill have become increasingly clear. At the same time, however, there remains significant confusion over what the new law means for North Carolinians. This fact sheet prepared by advocates at the Workers’ Rights Project of the North Carolina Justice Center provides answers to a number of frequently asked questions about HB2.
Q: In a nutshell, what does HB2 do?
A: HB2 makes four major changes to North Carolina law:
- Regulates bathrooms in public accommodations: HB2 requires schools and public agencies to designate and restrict multiple occupancy bathrooms and changing facilities for use based on the user’s “biological sex,” as stated on a birth certificate.
- Allows discrimination in public accommodations: HB2 permits businesses to discriminate against LGBTQ and transgender customers and bans local governments’ ability to prohibit this kind of discrimination.
- Restricts local government authority over employment practices: HB2 prohibits cities and counties from having living wage ordinances or policies that apply to private employers or to the businesses they contract with.
- Permits employment discrimination: HB2 allows businesses to discriminate against LGBTQ job applicants and employees. It prevents cities and counties from having ordinances or policies against discrimination by private employers, and eliminates a worker’s right to sue their employer in state court if they are fired for a discriminatory reason, such as age, religion, national origin, race or sex.
Q: Under the bathroom provisions of HB2, can my opposite sex child come into a multiple occupancy bathroom or changing facility with me?
A: If you are in a school, yes, regardless of the age of the child. If you are in the building of another “public agency,” then your opposite sex child may only come in the bathroom with you if he or she is 7 or younger. If your child is older than 7, you may accompany your child into the bathroom of his or her “biological sex.”
Q: Can my caregiver accompany me into the bathroom of a school or public agency?
Q: If I am in a non-governmental building, what bathroom may I use?
A: There is no law restricting which bathroom someone can use in a non-governmental building.
Q: If I am in a non-governmental building, can my opposite sex child come into the bathroom with me?
A: Yes, there is no law restricting which bathroom someone can use in a non-governmental building.
Q: If I am in a public agency or school, which bathroom may I use?
A: Under HB2, you may only use the multiple occupancy bathroom or changing facility that corresponds to your “biological sex,” as stated on your birth certificate. You may use a single-occupancy bathroom or changing facility, or faculty facility if that is made available to you, but schools and public agencies are not required to provide single occupancy facilities.
Discrimination in Public Accommodations
Q: Can a business refuse to do business with me because I am of my sexual orientation or gender identity?
A: Yes. HB2 excludes LGBTQ individuals from state anti-discrimination protections in public accommodations. Additionally, there is no federal law that specifically protects persons against discrimination on the basis of sex (including sexual orientation or gender identity) in public accommodations. This means that any private business can refuse service to any person based on their sexual orientation or gender identity.
Q: My city has a policy against discrimination based on sexual orientation. Who does this protect?
A: HB2 specifies that a city or county may not forbid businesses from discriminating based on sexual orientation or gender identity in the provision of goods, services, and facilities to customers.
Local Government and Employment Practices
Q: Is my city/county’s living wage ordinance for public employees still in effect?
A: Yes, a North Carolina city or county may still have a living wage policy that applies to its own employees. However, HB2 states that such a policy may not be applied to private employers, including government contractors.
Q: Can my city or county require my employer to pay me a living wage?
A: No. HB2 makes invalid any ordinance, regulation, resolution or policy adopted by a local government relating to compensation of non-governmental employees. This means a local government may not require a private employer–even a business with which it contracts–to pay a living wage, provide paid leave or other benefits, or pay its workers on time. The only exceptions are for those businesses that receive certain economic incentive payments or federal block grants, as well as local government community development programs.
Q: I don’t want my city to do business with companies that discriminate or that don’t pay a living wage. What can I ask them to do?
A: Cities and counties can only require payment of a living wage to their own employees, or in connection with an economic development incentive, federal community development block grant, or local government community development program. Under HB2, cities and counties cannot refuse to contract with a company because it discriminates by not providing goods, services, or accommodations to certain members of the public or because it does not pay a living wage.
Click here to read the rest of the FAQ’s – including discussion of the employment discrimination provisions in the law and the impact of Governor McCrory’s April 12 executive order.