Forwards and back

by David Forbes February 27, 2016

After Charlotte passes extensive LGBT protections, it’s a matter of question if Asheville City Council will do the same in the near future

Above: A pride flag flies from City Hall in 2014 after a federal court struck down the state’s ban on equal marriage. Photo by Max Cooper.

On Monday night Charlotte’s City Council, after hours of debate and over 140 speakers, passed protections for LGBT residents in the form of extensive changes to its non-discrimination ordinance.

While multiple North Carolina cities (including Asheville), have protections for LGBT city workers and access to city facilities, Charlotte’s move went a good deal further, extending protections to public accommodations like restaurants, bars, restrooms and stores, as well as taxis and local government contracting.

The Charlotte Council passed the ordinance — modeled after existing legal protections for race, religion, sex and other protected categories — 7-4. It was the measure’s second time before the elected officials — a previous attempt the year before had seen a proposal fail in the face of splits among local officials. In the ensuing time, two new Charlotte Council members who supported the protections were elected.

Much of the media coverage has focused on the provision allowing trans people to use a restroom that matches their gender identity. The backlash to that part of the measure has seen the use of blatantly bigoted stereotypes based around the myth that legal protections allowing trans people access to restrooms matching their gender identity will suddenly allow violent predation.

That is, notably, something that has never happened in the entire recorded history of such laws being on the books in multiple states and cities. Studies have, however, found that transgender people do face a number of issues related to restroom access, including the threat of violence if they’re identified as trans.

Some opponents asserted that their religious beliefs permit discrimination against LGBT people while others, including one of Mecklenburg’s state representatives, said that the protections will harm business or infringe on what they see as a right for private companies to deny services and discriminate among customers as their owners wish.

The state government, dominated by the right wing is, predictably, not pleased. Gov. Pat McCrory, a former Charlotte mayor, was threatening state action before the city’s Council passed the measure. House Speaker Tim Moore has called the step “a real danger to public safety” and the legislature is considering a special session to try and reverse the protections.

There’s also a push in Asheville following the Charlotte Council’s move, as LGBT rights groups recently called on city officials here to join Charlotte. On Thursday the Campaign for Southern Equality, based in Asheville, and Equality NC, based in Raleigh, issued a joint statement.

“We call on Asheville City Council to pass an ordinance ensuring that LGBT people are protected from discrimination in public accommodations, following the lead of Charlotte,” Ivy Hill, CSE’s LGBT Rights Toolkit Coordinator, said in the statement. “This is a natural next step for Asheville, which has long been a champion of equality and has worked proactively to ensure that our LGBT community is treated with dignity and respect.”

While Asheville’s known as an LGBT hub when compared to other North Carolina municipalities, the city was somewhat late to the game when it came to some local benefits and protections, while it was among the first to adopt others. As early as 1994, an ordinance prohibiting discrimination in the hiring of city workers passed 4-3. But on a second reading in the face of a major mustering of opponents, Council watered down the measure, stripping out any specific mentions of sexual orientation and gender identity. Seven other towns and cities in the state had domestic partner benefits before Asheville adopted them in 2010 in a 4-2 vote, after over a decade of political battles and activism had changed the local landscape.

The 2011 passage of the city’s equality resolution went further, declaring the city’s support for equal marriage, strengthened protections specifically for LGBT city workers and access to city facilities, as well as the establishment of a domestic partner registry. By that point, then-Mayor Terry Bellamy cast the sole vote opposing the measure and Asheville was one of the first municipalities in the state to adopt such protections for its employees.

But there, for almost five years, matters stood: there was no major push by Council to extend those protections further or to tackle the issue of public accommodations until after Charlotte made its move earlier this week. According to Council members who passed the 2011 resolution, no move was considered in the meantime to draft protections for LGBT people using public accommodations, though there was some discussion about possible protections for LGBT people seeking housing in Asheville and they were among populations included in a 2013 civil liberties resolution.

Where will Council go from here? After the Thursday statement from CSE and Equality NC, reactions among the city’s elected officials range from ardent support for such a move to hesitation. No Council member expressed outright opposition, though one, by the time of publication, had yet to respond. On Friday, after receiving multiple media inquiries (including from the Blade) Mayor Esther Manheimer issued a statement that, while reiterating general support for LGBT rights and touting the city’s past ordinances, notably did not state if she or Council had any intention of moving the matter forward. Others said that Council’s Governance Committee will likely take up the issue shortly.

Meanwhile, Charlotte’s city attorney asserts that the anti-discrimination measures are well within the legal powers of a North Carolina city to protect its citizens and regulate business, and that the ordinance has been extensively evaluated by the legal department during the months of debate and consideration.

The issue is likely to emerge in the Buncombe County commissioner elections as well, as Council member Gordon Smith and CSE founder Jasmine Beach-Ferrara are both running in the District 1 primary. Republican Jordan Burchette, running against incumbent Mike Fryar in the District 2 primary, sent out a statement earlier today opposing such a move (in the process inveighing against a gender-neutral restroom provision that Charlotte’s ordinance does not contain) while wheeling out the aforementioned predator stereotype and asserting “if Buncombe County should pursue this avenue, I will make it my personal mission to ensure that every member of my family has their concealed carry permit and is properly armed and trained.”

In campaign questionnaires sent out Thursday, the Blade asked candidates in all the primary races if they’d support Charlotte-style LGBT protections for the county.

‘It’s important that Asheville pass this’

“Seventeen states and 225 cities across the country have a similar ordinance in place, so I don’t think that we’re breaking new ground with this; we’re following the lead of a lot of other cities and following the lead of Charlotte in extending these important protections,” CSE’s Aaron Sarver tells the Blade of why the organizations called on Council to take action.

In South Carolina, Sarver notes, Columbia, Charleston and Myrtle Beach have passed similar protections as well, though Charlotte was the first North Carolina city to do so.

Though 17 municipalities across the state — including Asheville — have non-discrimination ordinances affecting their workforce and facilities, Sarver emphasizes that “this would impact all residents or visitors of Charlotte and hopefully Asheville. The scope of these protections are much more significant in terms of the number of people impacted and protected.”

“Many people are still surprised to hear this is true, but you can be fired for being LGBT in North Carolina,” Sarver adds, asserting that lack of state protections makes local ones all the more necessary.

“It’s important that Asheville pass this, in addition it’s important that Buncombe County passes it and yes, we would like the state of North Carolina to pass this,” he said. “We don’t have a fixed timeline, but we hope this will be considered and passed soon.”

Sarver adds that the implications go far beyond the restroom provision that’s received much of the media frenzy, something he says has seen blatant prejudice emerge.

“A lot of cities and states have passed these laws, if predatory behavior was happening, we would hear about it,” Sarver says. “Sexual assault and rape are against the law, these ordinances do not change that, so let’s not conflate false narratives and stereotypes about transgender folks being predators. These are old narratives that, frankly, we heard five or 10 years ago about gay men. Now we know those narratives are false and they’re not allowed in the public discourse. Now we’ve got those same old tired narratives and people are trying to put that on the transgendered community.”

While the restroom provision is “the political hot potato that makes the TV news, but it’s important for people to understand that this has very broad implications.” An example he cited was that a lesbian couple hailing a taxi in downtown Asheville couldn’t be denied service because of their identity if the city passed such an ordinance.

“All the focus is on the bathrooms, but there’s important large, structural stuff relating to the city that’s in this bill.”

In their research on the ordinance, he notes that the city of Charlotte found that there was a high level of discrimination reported by the LGBT community, “but there’s no official mechanism to track that because there aren’t these legal protections.”

“We don’t have official statistics around this in Asheville,” Sarver emphasizes. “What we know anecdotally in Asheville, from the Campaign for Southern Equality, is that this is happening in Asheville. Yes, Asheville is a welcoming place for the LGBT community, but discrimination still happens, and there’s more that we must do legally to protect folks.”

Rights and process

Part of the changes to Charlotte's non-discrimination ordinance, extended to protect LGBT people.

Part of the changes to Charlotte’s non-discrimination ordinance, extended to protect LGBT people.

On Asheville’s Council, reactions ranged from enthusiasm to hesitation.

Some members were fully in support of passing a Charlotte-style ordinance.

“I’d love to do it and I hope other Council members will support that,” Council member Cecil Bothwell said. “I think it’s worth trying. The General Assembly, as it’s currently constituted, will block it, but we should help Charlotte by jumping on board.”

“This is absolutely something we should do,” Council member Brian Haynes said after reading over the provisions of Charlotte’s ordinance, adding that he believed other Council members would join him in supporting such a move. “Even though it looks like Raleigh is going to shoot us down on this, I wouldn’t even care, we should do it anyway.”

Council member Julie Mayfield said she supported such a resolution in general, but did want to look at the specifics.

“I have not looked at what Charlotte has adopted in detail, but I absolutely think we should take a look at it,” she says. “As a general matter, it sounds like something I think I would support, just need to look at the details. I’m happy to support it here and think it’s a great idea.”

Smith was broadly in support of such a move, but was focused on the process for bringing it forward through Council.

“I’ve had conversation with a couple of Council member about it, and there is interest,” Smith said. “As far as for what direction that would take, it would generally be some direction to the legal staff to look at drafting something similar.”

In the past, he said, it had been difficult to know which city committee would take up such a proposal, but now he believes the Governance Committee, created by Manheimer in 2014, would work.

“I’m certainly interested in it and I applaud Charlotte for taking the lead,” Smith continued. “I know the Campaign for Southern Equality has made a call for Asheville City Council. I haven’t heard from them individually yet. I know that I’ve worked well with that group in the past on policy recommendations so I look forward to doing so again.”

In response to multiple media inquiries, including from the Blade, Manheimer issued the following statement late on Thursday:

“The City of Asheville values diversity and equality. At the last Council meeting, Asheville City Council adopted a vision that reinforces these core values. Asheville City Council has taken bold steps to pass non-discrimination employment policies and extended benefits to domestic partners. Asheville is an open and welcoming community, which provides a safe environment for our diverse citizenry.”

Notably, of course, that statement takes no position on if Asheville will bring a Charlotte-style ordinance forward.

Vice Mayor Gwen Wisler said that despite Charlotte’s passage of the measure, legal concerns remained.

“I think we, historically, have been pretty proactive when it comes to LGBT issues and been out on the edge on that,” she tells the Blade. “I haven’t really studied [Charlotte’s ordinance]. One of my concerns is if, as a city in North Carolina, we have the authority to affect anything outside of the city’s direct control. I don’t know if we have the ability to mandate private industry to do certain things.”

Asked about Charlotte’s passage of just such a mandate, Wisler replied that “you can pass things, but it may not be legal. I would really want to study that and understand that. We have had some very preliminary discussions about city facilities, but haven’t studied it in any kind of detail. Speaking with the mayor, I think we’re going to try to bring this whole issue up to our Governance committee.”

“I think we have a pretty healthy history of being progressive about these issues,” Wisler continued. “I think anything that can do that’s legal this Council would probably try to do, but I would also like to get a feel where people in this community are around this whole issue.”

In a follow-up message, Wisler later noted that while “I would want to explore the city’s authority to regulate certain things,” she was not “questioning the legality of Charlotte’s regulations.”

Asked, then, if Charlotte’s regulations are legal, she would favor Ashevile passing something similar, Wisler replied that “I haven’t read Charlotte’s regulations so I can’t conclude. I support non-discrimination and acceptance of gay, lesbian, bisexual and transgender residents and visitors.”

Council member Keith Young did not respond to a request for comment.

Three current members of Council were among those who supported the 2011 equality ordinance. Manheimer, as noted above, responded to media inquiries with a general statement rather than directly answering questions.

Among the others, Bothwell couldn’t recall the city considering any further steps similar to Charlotte, though he noted a 2013 civil liberties resolution he wrote included a bar against the city taking specific enforcement action based on a number of factors, including sexual orientation and gender identity. Smith, one of the architects of the equality resolution, said that the topic of protecting LGBT access to housing had been discussed by the city’s affordable housing committee, but that the city had made no attempts to expand the city’s protections to public accommodation.

The issue has, at points, been a topic of public discussion, though not on the Council dais. In a 2014 Blade opinion column, local activist Basil Soper made the case that Asheville still remained a hostile place for many trans people and said the city government should take steps to improve the situation, specifically when it came to restroom access.

Back to the law book

During months of debate at their own local government Charlotte City Attorney Robert Hagemann and his department reviewed the potential ordinance extensively and believe they’re on solid legal ground. Earlier this month, he and assistant city attorney Jason Kay drafted a memo for that city’s elected officials laying out the legal case for the protections.

While the memo specifically notes, like most opinions from cities’ legal staff, that it’s not intended to advocate a policy, it does assert that protecting the access of LGBT citizens to public accommodations, including private business, is well within a city’s powers.

“Protecting citizens from discrimination falls within both the broad police power and the business regulation power granted to North Carolina cities,” the memo reads. “While no North Carolina court has ruled on the issue of whether a non-discrimination ordinance falls within the police power or the business regulation power of a city, federal and other state courts have, for over 50 years, routinely found that nondiscrimination ordinances applicable to businesses providing public accommodations are permissible under the police powers of a city.”

The “broad police power” the memo refers to is the ability of local governments, under state law, to pass regulations for the health, safety and welfare of their citizens and to maintain “the peace and dignity of the city.” While there are limits on these powers, the memo notes, they are “robust” enough to cover the LGBT ordinance, especially in combination with state laws that allow cities authority over licensing and regulating (again, with some limits), businesses operating within their borders.

Importantly, similar local protections have been on the books for nearly half a century in the city without issue, he tells the Blade.

“Charlotte had a non-discrimination ordinance in 1968,” Hagemann says. “In ’72 the ordinance was amended to add sex.”

The memo was drafted in response to a Feb. 1 letter from state Rep. Dan Bishop, who claimed that Charlotte’s attempt would infringe on rights of businesses and limits on local governments under state law. However, in the memo Hagemann and the Charlotte legal team assert that Bishop misinterprets many of these cases, and that city ordinances he refers to were struck down on more narrow grounds rather than as a rebuke to the general power of cities to protect their residents’ civil rights.

“Lawyers can disagree; it happens now and then,” Hagemann notes with a chuckle. “The point I made to Dan was that if he is correct and Charlotte lacks the authority now to protect based on these new characteristics, then we lacked the authority 48 years ago. If someone challenged the ordinance, and if they were successful, it would take down the protections based on race and religion.”

Indeed, Bishop suggests as much in his letter, attached to the memo.

“I will explain a danger you may not have considered — that the collateral result of exceeding your authority here may be to overturn the existing public accommodations ordinance,” Bishop wrote. “I would be tragic for an overreach to destroy that legacy of a more moderate and consensus-oriented time.”

The nature of this time, however, is that battle lines are being drawn over protections for LGBT rights across the state, and what role local governments will play. In the coming weeks, locals will find out if Asheville will join that fight.

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