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Durham City Council: live blogging the anti-HB2 resolutions

Update: Here is the full text of the resolution:  Download Durham City Council resolution vs HB2

Patrick Baker, city attorney: I've been trying to determine what if any changes in city operations, ordinances, etc. need to be made. The part that has gotten the most attention is the single-sex and multi-occupant bathrooms and changing facilities. The legislation — the big change is biological sex, as put on their birth certificate. If the certificate hasn't been changed to reflect your gender reassignment surgery, then you still have to use the bathroom that complies with the gender on certificate.

They haven't criminalized me, for example, going into the women's bathroom. But there are already laws on the books for that — trespassing, for example.

Don Moffitt: This is bathrooms only that we own, right?

Baker: Yes, it's applicable to only public agencies, of which municipalities are part of that. Private businesses are not.

The wage ordinance part: We don't require a livable wage for outside contractors. There are some nuances, and at some point I may come back to you. We don't have a wage ordinance that's in violation of HB2. Our staff is not covered by the statute.

General anti-discrimination requirements: Local agencies don't have the authority to impose anti-discrimination ordinances beyond what the state has provided. Sexual orientation and gender identity left out of the protected classes in the legislation. We are not requiring outside contractors to abide by our values. Our internal policies, which cover sexual orientation and identity, are not affected by the legislation.

Two lawsuits have been filed, one against the state, and a case coming out of the state of Virginia, regarding transgender and gender identity and the facilities they can use. This is the Fourth Circuit, and North Carolina is in that circuit. Transgender: Is it considered sexual discrimination under the law? We'll get some guidance from that decision.

If there are going to be designations about the bathrooms, I'd suggest just leaving signage alone.

Moffitt: Wasn't the outside contractors law already on the books?

Baker: Yes.

Cora Cole-McFadden: I want to share a statement from the National League of Cities: Cities stand in favor of local authority and inclusiveness. On Friday, the executive committee affirmed its commitment to Charlotte for the 2017 [league convention]. We don't want to penalize Charlotte. When you're a city and the state can overstep you, it's not a good thing.

Eddie Davis: I'm assuming that since even the protected classes who've had the ability to sue in the past now being placed back in time: If a citizen of Durham decided not receiving proper public accommodations, they could not sue in state court, but would have to sue in federal court. There are not federal courts in every county, so there could be problems filing that. [It also costs more, $100 for state filing, and $400 for federal.] You would do federal circuit court, then the appeals court and the Supreme Court.

Baker: If someone wants to invoke Title 7, they can file under state or federal court. The vast majority of employment claims are under Title 7; those can be filed in state court and aren't affected by HB2. Any discrimination based on North Carolina public policy, you can't file that state law claim in state court, but federal. 

Charlie Reece: I'm making a motion to suspend the rules to vote on this resolution.

[The vote to suspend the rules passes unanimously.]

Reece: I want to thank City Council and staff, and ordinary people who contacted me about when we were going to pass a resolution about HB 2. Today's that day and now's that time.  [Note this is not all of the language, because it went by quickly. We will post the resolution when we get a printed copy.]

We call for repeal of HB2 [clauses are being read about what the General Assembly did to the Charlotte ordinance.] The statute's omission of gender identity and sexual orientation as protected classes, local governments appear to be prohibited from offering protections to these people. the legislation appears to be inconsistent with the Equal Protecton Clause of the U.S. Constitution. It is mean-spirited ... There have been lawsuits, and one of the plaintiffs is Angela Gilmore of Durham, N.C., a law professor at NCCU. More than 120 companies have written letters opposing HB2...

Durham is an open and welcoming city, supports full inclusion and engagement of any resident regardless of sexual orientation, gender identity and expression, age, race, class, disability, religion and national origin. Durham City Council calls for the repeal of HB2 as soon as possible. DCC asks private business to welcome and encourage customers and employees to most closely align with their gender identity.

Rose Sanchez: I support the governor and I think he's right.

Luke Hurst: Durham likes to talk a lot about a welcoming city committed to full inclusion and engagement. That's not how it always feels to be transgender or gender nonconforming, particularly people of color. [Some businesses aren't welcoming.] My safety and dignity should not be controversial. I encourage you to take action. Take proactive measures to make sure everyone feels safe in city. Would you join the lawsuit against HB2? Would you work to increase the number of bathrooms in the city. There are eight bathrooms in city hall, none that I feel safe in using.

Patty [DIDN'T GET LAST NAME] , works with LGBT youth: I identify as queer. Before HB2, it was a challenging environment for LGBTQ youth. They were struggling for inclusion and to be valued and loved for who they are. Even in progressive schools, they have problems being who they are. Trans people are the ones targeted in bathrooms, which are more dangerous for trans and gender-nonconforming people than others, as is the world.

 We want Durham to do more, but we appreciate [what the city does].

Helena Cragg of LGBTQ Center: Hopefully your work won't end after today, and that you'll show the leadership Charlotte did and proactively work to repeal HB2.

Motion passes 7-0.

Bell: Thanks to Councilman Reece for working on this. 


Dick Ford

As I read Lisa's blog, is it fair to say that HB2 has no effect on the City of Durham and its policies according to the City Attorney??

Lisa Sorg

@Dick: It doesn't affect Durham in its wage policy for outside contractors. It doesn't affect anyone suing under Title 7. But it does affect anyone in Durham suing on grounds of discrimination under any other statute than Title 7. And it does preclude/prohibit Durham from establishing its own inclusive bathroom policy. The city would have to do a work around to do so.

Will Wilson

What about age discrimination? That's left off, isn't it?


When will the City of Durham decide to lead on the $15 minimum for contractors, seasonal, and temporary employees? Or is this just expected of Duke?

Lisa Sorg

@Will: I think age is still a protected class. I may have not been typing fast enough to include it! Yesterday it seemed like everyone on Council was speaking like an auctioneer.

John Martin

I oppose HB2. That said, I find this resolution odd since no one on the Durham City Council (to my knowledge) has ever proposed adopting a local ordinance prohibiting discrimination on the basis of sexual orientation or gender identity. Therefore the Council is in the peculiar position of expressing outrage that the legislature has prevented them from doing something that they have never shown any interest in doing.

If the Council is serious, it will pass an ordinance prohibiting discrimination on the basis of sexual orientation or gender identity. Such an ordinance would be a dead letter as long as HB2 remains in effect. But if HB2 is ever struck down by the courts or repealed by a future legislature, then the ordinance would automatically take effect.

Anything else is just posturing.

Lisa Sorg

@John Martin: This from the ACLU, posted last fall in regards to a Wake County action. Durham does have a LGBT nondiscrimination policy.

"On September 21, the Wake County Board of Commissioners voted to add lesbian, gay, bisexual and transgender individuals to those protected by the county’s employment nondiscrimination policies. Other state municipalities that have adopted LGBT nondiscrimination policies include Buncombe, Durham, and Mecklenburg counties, and the cities of Asheville, Boone, Chapel Hill, Carrboro, Charlotte, High Point and Raleigh."

John Martin

@Lisa Sorg: I think you are confusing an ordinance prohibiting discrimination by the County itself as employer with an ordinance prohibiting discrimination by all employers within the County.

Dick Ford

@John Martin: I thought it was a profile in courage:-)


What about discrimination of fat people, and ex-cons?

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