Wilmington joins about a dozen other cities and counties that have also passed similar ordinances following the sunset of HB143 — a so-called 'compromise bill' that replaced HB2, the notorious 'bathroom bill' legislation that many advocates regarded as anti-transgender. HB143 blocked local governments from adding their own protections for LGBTQ residents.
As the bill's expiration date approached, many looked to progressive elected officials to enact local legislation. Recently, Charlotte joined Apex, Durham, Greensboro, and others — and many expected Wilmington to be next.
But compared to those other local ordinances, Wilmington’s law is much more restrained, and doesn’t cover discrimination against residents on the basis of things like marital or veteran status, or culture-specific hair and dress — and, the law does not protect against discrimination in private employment.
Why didn’t the city go further? That has a lot to do with city attorney John Joye’s legal philosophy:
“My recommendation is we do not have the clear authority to do so. And I would recommend that we not do so until we have greater information from the courts in whether or not they will support this authority and whether or not the legislature may take action to support this authority," Joye told city council on Tuesday.
Joye noted that North Carolina grants limited power to smaller units of government — a policy known as Dillon’s Rule that often prevents towns, cities, and counties from passing laws on issues already covered at the state level. Joye told council he wants a non-discrimination ordinance that won’t run afoul of Dillon’s Rule, and won’t get struck down by the courts.
However, Joye acknowledges, that’s the not attitude everywhere else: “Let me say that of the ordinances we've seen, all of the 12 do regulate private employment.”
In some cases, attorneys have interpreted the law differently — and, in some cases, elected officials have been to take on lawsuits, either to make a point or with the hope of taking the case to higher courts, winning, and setting new legal precedents — a strategy long embraced by both political parties on a host of issues.
For Joye, an ordinance that’s safely on the books trumps a bolder law that could be overturned — but that’s left LGBTQ advocates and others frustrated.
Advocates want the city to do more
Here’s Caroline Morin Gage, executive director of the LGBTQ Center of the Cape Fear Coast, formerly the Frank Harr foundation:
“Basically, we have three primary concerns with the proposed ordinance. One is the narrowness of categories of protected people. We believe that there are broader categories that could have and should have been included in line with the 12 other municipalities in North Carolina that have passed this type of ordinance. We also believe that the absence of health care and employment protections included by those other jurisdictions in many cases are critical. And the lack of meaningful penalties and the absence of an enforcement plan concern us greatly," Morin-Gage said.
Morin-Gage wasn’t alone — the city’s own Community Advisory Relations Committee (CRAC), which also advises New Hanover County. and Equality NC have voiced similar concerns. You can find CRAC's letter to the City of Wilmington below.
The city addressed some of these issues — including noting that health care settings would be covered, and saying that it was not uncommon for cities to leave the details of enforcing local ordinances up to city managers.
Despite reassurances from Joye, Councilman Kevin Spears had concerns that the ordinance might feel rushed to the public -- and Spears shared his own experience with discrimination over natural hair, something not covered by the city’s new law.
“Hey John, as a council member with dreadlocks, I think I think the hair was, should have been a no brainer. You know, it because that's the reality. I was sharing the story earlier, when I was a teenager, fresh out of high school. I hadn't had dreads at the time, but I had braids," Spears said. "And I worked for a local company here. And the manager came to me and was like, Hey, man, what's up with your hair?”
Spears asked to table the ordinance to work through some of the issues. He also noted that not everyone on council had the same experience with the kind of discrimination the new law is intended to prevent.
"I'm not trying to be difficult, but I think some of us, and I say this, respectfully, are out of touch when it comes to discrimination. There's a level of privilege sitting on this dais," Spears said.
Ultimately, the ordinance was passed 6-1, with Spears as the sole dissenting voice. The ordinance will require a second reading, but council's position on it seems unlikely to change — and least in the immediate short term.
While advocates clearly wanted the city to do more, Mayor Bill Saffo echoed Joye in saying that the law could — and should — be reconsidered, and possibly expanded, in the future.
“It's not one and done and this is over with, I think it's very important that we hear from the community and we hear from everybody and hear what the concerns are — [and] also investigate some of the situations that have been brought forward in respect to some discriminatory practices that have been brought forward," Saffo said.
Below: CRAC's letter to the City of Wilmington concerning its proposed non-discrimination ordinance.
Final Crac Ndo Letter by Ben Schachtman on Scribd
