Will, I'm glad the information was helpful. With respect to your follow-up question, I'm not familiar with any other jurisdictions in which restroom carveouts have been eliminated. That said, I would not expect there to be many such jurisdictions as it appears that restroom carveouts to public accommodation provisions are relatively rare.
As to why Charlotte eliminated its carveout, I think it is much more likely to have been aimed at making sure transgendered individuals could use the bathroom (or Y facility) matching their gender identity than it was to achieve the "radical" goal of eliminating separate men and women's bathrooms (or Y facilities). In at least one prior case, a restroom carveout like the one in the old Charlotte ordinance resulted in the dismissal of a discrimination case by a person who was allegedly harassed by a security guard after using a women's restroom because they were perceived to be transgendered. See In the Matter of Toni Jefferson, 2001 WL 474465. I strongly suspect the supporters of the Charlotte ordinance had situations like that in mind, and I have a very difficult time imagining the Charlotte Community Relations Committee interpreting and applying the new ordinance -- which, again, is identical to public accommodations provisions in states and localities across the country -- as requiring a brave new world in which pubic accommodations are required to allow "straight boys into the girls showers." But if the NC law is struck down or repealed, perhaps we'll find out. - Jim On Thu, Mar 31, 2016 at 6:21 PM, Will Esser <willes...@yahoo.com> wrote: > Jim, > > That is helpful information and I appreciate you sharing. > > Do you know if any of those other non-discrimination provisions contained > specific carevouts for bathrooms, showers and locker rooms, and the > carveouts were later eliminated? Here, the Charlotte City Council knew the > public concern on this point, and could have amended the law in some form > or fashion if they did not mean to entirely eliminate single > sex bathrooms. They did not do so. If I'm not mistaken, the normal rule > of statutory construction is that if a statute contains an exception and > that exception is explicitly removed, then the exception no longer > applies. That is certainly the normal and logical way to look at the > ordinance. > > What makes that argument even more compelling here is that the Charlotte > City ordinance had three carveouts to the sex discrimination provision. > The one about bathrooms and showers was the first. The second carveout was > for the "YMCA, YWCA and similar types of dormitory lodging facilities" and > the third was for private clubs. The private clubs exception is still in > the statute (just another section). The bathroom/shower exception and the > YMCA / YWCA exceptions were stricken. It would be a curious argument that > elimination of the YMCA carveout was meaningless and the YMCA and YWCA were > still exempt from the sex discrimination provisions of the ordinance, > particularly when one of the three exceptions was left in the statute. > > Will Esser > > > ------------------------------ > *From:* James Oleske <jole...@lclark.edu> > *To:* Will Esser <willes...@yahoo.com>; Law & Religion issues for Law > Academics <religionlaw@lists.ucla.edu> > *Sent:* Thursday, March 31, 2016 7:16 PM > *Subject:* Re: The Charlotte City Ordinance and Religious Freedom > > Will expresses concern about "how truly radical the Charlotte City > ordinance was" and how it was "entirely over the top." It would appear, > however, that the changes made to the ordinance in February simply made it > consistent with the majority of other state and local laws prohibiting sex > discrimination in places of public accommodation, most of which do not have > explicit restroom carveouts written into them. Here are just a few examples > of such laws without explicit restroom carveouts: > > Missouri: > http://www.moga.mo.gov/mostatutes/stathtml/21300000651.html > > West Virginia: > http://www.legis.state.wv.us/wvcode/code.cfm?chap=05&art=11 > > Utah: > http://le.utah.gov/xcode/Title13/Chapter7/13-7-S2.html > > Oregon: > http://www.oregonlaws.org/ors/659A.403 > > City of Atlanta: > > https://www.municode.com/library/ga/atlanta/codes/code_of_ordinances?nodeId=COORATGEVOII_CH94HURE > > When the unusual (but not unprecedented) separate sex discrimination > provision in Charlotte's old ordinance was removed, and sex was placed into > the general public accommodations provision with all the other protected > classes, here is how the operative provision of the new Charlotte ordinance > read: > > > It shall be unlawful to deny any person the full and equal enjoyment of > the goods services, facilities, advantages, and accommodations of a place > of public accommodation because of race, color, religion, sex, marital > status, familial status, sexual orientation, gender identity, gender > expression, or national origin. > > If that provision is "truly radical" and "over the top," so are the > provisions of numerous other jurisdictions. > > And of course, as Doug has pointed out, if the lack of an explicit > restroom carveout in the new Charlotte ordinance was the North Carolina > legislature's real concern, it could have passed a law limited to that > issue. Instead, it removed all municipal nondiscrimination protections for > LGBT individuals. > > At this point, it seems pretty obvious that having failed to convince the > public that protecting against sexual-orientation and gender-identiy > discrimination is a bad idea as a general matter, opponents of LGBT > nondiscrimination laws are focusing on the restroom issue because the "men > in women's bathrooms" talking point has proven politically salient (see, > e.g., Houston campaign), even if there is no evidence that it has ever been > a problem in any of the 21 states or hundreds of municipalities that have > added sexual-orientation discrimination and gender-identity to their public > accommodations laws. > > - Jim > > > On Thu, Mar 31, 2016 at 2:20 PM, Will Esser <willes...@yahoo.com> wrote: > > Paul, > > My main point was how truly radical the Charlotte City ordinance was in > entirely doing away with unisex bathrooms in public accommodations. (I > trust you are not taking the position that it is advisable public policy to > allow non-transgender, straight boys into the girls showers in the YMCA?) > The point was that the Charlotte City ordinance was entirely over the top. > People can have a healthy debate about whether the NC law should go > farther in providing allowance for changes to a birth certificate, but > that's a very different debate than entirely doing away with unisex > bathrooms. The Charlotte City Council used a club when they should have > tried a scalpel. > > To turn this back to religion and the law, let's assume that the Charlotte > City ordinance had gone into place as drafted (i.e. a > non-discrimination provision that does not allow discrimination on the > basis of sex with no exceptions for bathrooms). The YMCA is defined as a > public accommodation under the ordinance and it is sued when it refuses > to allow boys into the girls' showers. The YMCA argues that it won't let > the boys into the girls showers based upon its religious principles which > flow from the Bible, including a prohibition on pre-marital sex and an > obligation to protect youth from temptation. > > How do listserv members think that comes out? Isn't this an example in > which the religious principles of the YMCA should clearly trump the > non-discrimination provision? (Again, this is not a fictional > hypothetical. That is actually the ordinance the Charlotte City Council > passed and which would have gone into law but for the NC legislature's > action). > > Will > > > Will Esser > > > >
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