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By Will Doran March 31, 2016

McCrory: Local governments can have in-house discrimination policies stricter than the state's

In what he dubbed a "myths vs. facts" press release addressing news reports on North Carolina’s new LGBT law, Gov. Pat McCrory made multiple statements that caused us to raise our eyebrows.

In general McCrory has been trying to downplay the effects of the state’s new law, commonly referred to as HB2.

We already checked one of his statements, on the possibility of North Carolina losing $4.5 billion in federal education funding due to Title IX violations. McCrory said there’s no threat, citing a federal judge’s opinion. We rated that claim Half True.

We also checked McCrory’s statement that this law didn’t take away "any rights" in "any city in North Carolina." We rated that claim False.

Now we’re turning our attention to a claim of his about the ability of cities to strengthen employment policies. The state now recognizes discrimination only against certain groups, not including gay or transgender people.

The new law does allow cities and counties to set in-house rules on minimum wage, work hours and other employment-related issues. They can’t impose any such rules on private businesses, but they can make the rules for themselves.

When it comes to discrimination rules, however, the issue is much murkier – even despite the governor’s promise that there’s nothing to worry about.

"Does this law prohibit towns, cities or counties in North Carolina from setting their own nondiscrimination policies in employment that go beyond state law?" McCrory asked in his press release. "Answer: No. Town(s), cities and counties in North Carolina are still allowed to set stricter non-discrimination policies for their own employees if they choose."

However, the actual wording of the law seems to say the exact opposite. Let’s hear it:

"... the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to the regulation of discriminatory practices in employment, except such regulations applicable to personnel employed by that body that are not otherwise in conflict with State law."

The end initially appears to say local governments can protect their own employees ("personnel employed by that body") from discriminatory firing – a phrase that would appear to back up McCrory’s point.

But the sentence doesn’t stop there. It continues on: "except such regulations applicable to personnel employed by that body that are not otherwise in conflict with State law" (emphasis added).

And the new state law says the only discrimination protections recognized in North Carolina are "race, religion, color, national origin, age, biological sex or handicap." It defines biological sex as "The physical condition of being male or female, which is stated on a person's birth certificate."

In Greensboro, town officials are skeptical that McCrory is correct in saying they’ll be able to keep their old, stricter policies that protected transgender people.

A memo from the office of City Attorney Tom Carruthers said "the recent amendments in city policy and ordinance to protect gender identity and gender preference are now probably eliminated."

Carrboro had similar discrimination protections. Like in Greensboro, town leaders think they may now be moot – particularly the protections for transgender employees – despite what McCrory said.

"The bill calls into question – and I’m being careful with my word choice there – it calls into question the ability of local government to ban discrimination based on gender identity (because) that’s not the same as biological sex," Carrboro Town Attorney Nick Herman said.

Other town, city or county governments had gender identity discrimination protections that are now in question, including Raleigh, Charlotte, Asheville, Boone and Chapel Hill, and Buncombe, Mecklenberg and Orange counties.

According to the News & Observer, Chapel Hill Mayor Pam Hemminger cited the loss of in-house anti-discrimination rules as one reason why the town passed a resolution calling for the law’s repeal.

"The greatest sentiment was the loss of local control," Hemminger said.

Asking law professors

So the law says that cities and counties can have stricter discrimination policies, unless they conflict with state law. Most of the affected cities previously had discrimination rules regarding gay and transgender employees. And yet it appears that any attempt to restore their protections – especially for transgender people – would conflict with state law.

Why is that exception even included in the bill, if it appears to nullify itself?

"That is a savings clause that saves nothing," said Enrique Armijo, a constitutional law professor at Elon University School of Law.

Essentially, Armijo argued, it looks important but means nothing. He said it’s "farcical" for McCrory to argue that the law allows local governments to set stricter, internal anti-discrimination policies.

"The governor's interest here is in making the law seem like it does a lot less than it does," Armijo said.

Unfortunately, we don’t know exactly what legal interpretation McCrory was using when he put together his "myths vs. facts" press release, which is on his state website, campaign website and was distributed by numerous state agencies.

His office did not respond to multiple requests for help clarifying the reasoning behind his statement, or the seeming contradictions in the law.

So we went and talked to more law professors.

Katharine T. Bartlett, a former dean of Duke University Law School who is now a professor there, said McCrory’s claim seems true. Bartlett teaches and writes about subjects including employment discrimination, gender and the law, gender theory and social change.

"This ‘except such regulations…’ language is very vague," she said. "Perhaps intentionally so, perhaps a result of the rush in which it was enacted. That said, I would read this language to allow local governments to have their own nondiscriminatory policies, as long as they do not impose them on any other employers."

On the other hand is Michael Gerhardt, the Samuel Ashe Distinguished Professor in constitutional law at UNC-Chapel Hill and the director of the school’s Law and Government program.

"I think (McCrory’s) reading is disingenuous," Gerhardt said. "... It seems like (HB2) was motivated to produce a law that was going to override whatever the localities did."

Our ruling

Local government leaders are worried they’ll lose local discrimination protections, and two of the three legal experts we spoke with said they have good reason to be.

The consensus isn’t unanimous. Bartlett, the former Duke Law dean, argued that McCrory is correct. And even some of the municipal leaders couched their fears, not willing to say their policies are definitely gone.

It might be that no one will know for sure until a judge rules one way or the other. But in the meantime, McCrory is telling local governments that they can absolutely keep doing something that the local governments themselves, and several constitutional law professors, don’t necessarily think they can.

But McCrory doesn’t offer any legal reasoning for his claim, his office didn’t respond when asked to clarify the seeming contradictions, and the majority of people we spoke to who are involved in the issue directly, or are looking at it from the outside as professors, believe that it’s not nearly so cut-and-dried.

We rate this claim Half True.

Our Sources

Email interview with  Katharine T. Bartlett, Duke Law

Phone interview with Michael Gerhardt, UNC Law

Phone interview with Enrique Armijo, Elon Law

Email interview with Jake Keys, Greensboro communications manager

Phone interview with Nick Herman, Carrboro town attorney

PatMcCrory campaign website, March 26, 2016, "Myths vs. Facts"

The News & Observer, March 28, 2016, "Raleigh mayor: City supports transgender community"

The News & Observer, March 28, 2016, "Chapel Hill Town Council urges repeal of House Bill 2"

Full text of new North Carolina law HB2

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McCrory: Local governments can have in-house discrimination policies stricter than the state's

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