CITY OF CHARLOTTE OFFICE OF THE CITY ATTORNEY Memorandum TO: Mayor and Council Y¥ FROM: Robert B, Hagemann, City Attorney Y=" Jason Kay, Senior Assistant City Atlomey, 2 DATE: February 24, 2016 RE: Restrooms and Non-Discrimination ‘You may have seen or heard of Rep. Dan Bishop’s email this morning (copy attached) in which he claims that the non-discrimination ordinance adopted by Council on Monday has the effect of prohibiting sex-specific restrooms and locker rooms. For the reasons stated below, that is incorrect. Rep. Bishop essentially contends that by including “sex” in the list of characteristics that are protected from discrimination in public accommodations without explicitly stating that separate sex restrooms and locker rooms are permitted, the City has done away with separate sex facilities. This is counter to common sense and the interpretation of and experience under similar state statutes and local ordinances that prohibit discrimination based upon “sex” As a preliminary matter, the City has considerable discretion in interpreting the ordinance. In drafting the ordinance, it was not the City’s intent to eliminate gender- specific facilities. In none of the public presentations did staff or Council state the intent to eliminate gender-specific facilities, At no time during Council’s deliberations was such an intent articulated, There is no evidence of such intent, and the City will not make such an interpretation. Regarding the construction of the ordinance, consider that numerous states and cities have non-discrimination statutes and ordinances that prohibit discrimination in public accommodations based on sex without explicitly stating that separate sex facilities are permitted. We are aware of no state or city that has interpreted their laws in the manner suggested by Rep. Bishop. Nor are we aware of any court decision that has interpreted a similar law in such @ manner. | Regarding the Maine case that Rep. Bishop references, the holding was merely that an elementary school female identifying girl could use the gir!’s restroom. While there was speculation in a di 1g opinion that the holding could lead to gender-neutral restrooms, the majority opinion specifically stated: “[o]ur opinion must not be read to require schools to permit students casual access to any bathroom of their choice.”Consider also Rep. Bishop’s argument in light of Title IX which protects against discrimination in education. That federal law provides, in part: ‘No person in the United States shall, on the basis of sex, be excluded from, participation in, be denied the benefits of, or be subjected to diserimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. See, 1681(a). While, as we explained in an earlier memo, the US Department of Education has begun to enforce this provision to require schools to provide students, the opportunity to use restroom and locker facilities based on their gender identity, thi law has never been interpreted to require the elimination of gender-specific facilities in schools, something that would be required according to Rep. Bishop's analysis. Regarding enforcement, it is important to keep in mind that the ordinance can only be enforced by the City (i, the City did not and legally cannot establish a private right to sue), Under the ordinance as adopted, the City will not prohibit public accommodations from offering gender-specific facilities, and will not bring an enforcement action against an establishment that continues to do so. To the contrary, Chief Putney has informed me that CMPD will, for example, enforce the public indecency law should a biological male expose his private parts to a woman in a women’s restroom. Chief Putney also indicated that CMPD would enforce trespass laws against a non-female identifying male who enters and remains in a women’s restroom contrary to the directions of the proprietor. Finally, please note that the ordinance does not take effect until April 1. Between now and then, the Manager, Community Relations Committee staff, and this office intend to prepare and broadly distribute a guidance document that provides explanations and. interpretations of the ordinance, and answers common questions that business owners and others may have. That guidance will further address this issue, enclosureHagemann, Robert From: Sent: To: Subject: NC Rep. Dan Bishop Wednesday, February 24, 2016 10:45 AM Hagemann, Robert Blunder: Charlotte City Council Has Banned ALL Sex-Spectic Bathrooms & Showers ‘The latest news and views from Dan Bishop You have been 8 free subscriber since 11/8/2015 Unsubsorbe | Report As SPAM le eo for NC SENATE Cee ae Dad CU ee oe Cot District 39 BLUNDER: New Charlotte Ordinance Prohibits ALL Sex-Specific Bathrooms and Showers inside of City Limits All Men Now Have a Legal Right to Access Women's Facilities and Vice Versa February 23, 2016 (Charlotte, NC) ~ This past Monday night, Charlotte City Councilmembers thumbed their noses at the Governor and state law by adopting an illegal and state-preempted ordinance which creates special rights for persons who identify" or choose to "express" themselves as the opposite sex, including the right to access bathrooms and showers contrary to their biological sex. But it's even worse than | have outlined previously ~ and it's even worse than has so far been reported in the press. Let me explain. Numerous commenters at Monday's City Council meeting expressed their valid concern that males can pose as transgenders to gain access to women's and girls’ bathrooms, locker rooms, showers, etc. In reality, the amended ordinance, as adopted, outlaws sex-specific facilities completely. In other words, just as it would be illegal for a business to discriminate by saying "whites only,” it is now illegal within Charlotte city limits to have "male only" or "female only" bathrooms, showers, etc. Any biological man - regardless of whether he "identifies" or “expresses” himself as a man OR as a woman — now has the legal right 1under the City's amended ordinance to access the most intimate of women's facilities (and vice versa). Under the ordinance, Charlotte businesses may no longer offer or enforce sex-specific facilities and face penalties if they do. Before the amendment, the public accommodations ordinance had two separate parts. The first part prohibited denying anyone "the full and equal enjoyment of the ... facilities ... a place of public accommodation because of race, color, religion, or national origin.” The second part prohibited discriminating on the basis of sex, but exempted “[rlestrooms, shower rooms, bathhouses, and similar facilities which are in their nature distinctly private.” ‘Adding the new categories of "sexual orientation, gender identity and gender expression" to the second part of the public accommodations ordinance would not have suited the objectives of radical activists to overhaul existing bathroom policy. Therefore, City Council eliminated the second part of the ordinance completely, including its bathroom and shower exemptions. They moved "sex" to the first part and added the new classifications. So, the new language is just this: “it shail be unlawful to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, religion, sex, familial status, marital status, sexual orientation, gender identity, gender expression, or national origin.” If "gender identity" and "gender expression" mean that a transgender must be allowed to use the bathroom WH te te and shower of choice, then "sex" This is a boneheaded means that ALL men must be blunder and a further permitted to use women's facilities and vice versa. The City Attorney embarrassment to says that's not what was intended, Charlotte." but it is what the language says. 7 This is a boneheaded blunder and a further embarrassment to Charlotte. Ifyou live in Charlotte, please ask your City Council representatives what they were thinking. If you don't live in our city, be vigilant that your own city council does not create a national media circus for your hometown, See the PowerPoint show for an easy-to-understand demonstration of the City 2Council's blunder. Courts in State of Maine have already criticized a similar legal blunder in a recent case, found here. @ ———— A candidate for NC Senate, Dan Bishop currently serves as the elected representative for District 104 of the North Carolina General Assembly. For more information about Dan Bishop's background and key policy goals, visit VoteDanBishop.com. To email the campaign, email Dan@VoteDanBishop.com. This communication was paid for by Dan Bishop for Senate. ty Bin) Lc 2216 Whilden Court Charlotte, NC 28211 Unsubscribe ‘Add us to your address book