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LEGAL MEMORANDUM

DATE:

February 13, 2015

RE:

Legal Analysis of Charlotte, NC Ordinance Number ___:
Amending Chapters 2, 12, and 22 of the Charlotte City Code

Introduction
The proposed ordinance (the “Ordinance”), which adds the categories of “sexual
orientation,” “gender identity or expression,” “marital status,” and “familial status” in the city of
Charlotte’s nondiscrimination laws, does not contain adequate safeguards for constitutionally
protected speech and free exercise of religion. It also may violate the Establishment Clause.
Enacting this ordinance will threaten First Amendment freedoms and expose the city of Charlotte
(the “City”) to legal and fiscal liability.
The Ordinance presents, among others, the following legal concerns:

I.

I.

It will infringe First Amendment free speech and free exercise rights by requiring
business owners to engage in certain activities, or support certain messages, in
violation of their religious beliefs.

II.

It will require businesses, private clubs, and perhaps even churches and other
houses of worship, to make their restrooms open to both sexes, and also force
fitness centers to make their restrooms, locker rooms, and shower rooms open to
both sexes. This will violate the constitutional right to privacy and place these
entities at risk of lawsuits.

III.

It will require the City to engage in impermissible discrimination on the basis of
religion when it chooses businesses with which to contract.

The Ordinance Will Infringe Constitutional Rights By Requiring People to
Participate in Events, or Produce Messages, With Which They Disagree.

Both the United States and North Carolina Constitutions protect freedom of expression.1
The constitutional right to free speech “includes both the right to speak freely and the right to
refrain from speaking.”2 A long line of U.S. Supreme Court precedent establishes that the
1
2

See U.S. Const. amend. I; N. C. Const. Art. I, § 14.
Wooley v. Maynard, 430 U.S. 705, 714 (1977) (emphasis added).

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Amending Nondiscrimination Laws
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government cannot force citizens or organizations to convey messages that they deem
objectionable; nor may it punish them for declining to convey such messages.3
In many of its applications, the Ordinance will violate the First Amendment freedom
from compelled speech and place the City at risk of lawsuits for which the City may be liable for
attorneys’ fees.4 The City’s current public accommodations law provides “[i]t shall 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” on the basis of a protected
characteristic.5 The Ordinance, if enacted, will add “sexual orientation,” “gender identity,”
“gender expression,” “marital status,” and “familial status” to the list of protected characteristics.
The effect of this addition will be to require many businesses to provide their services to promote
messages and ideas that are contrary to their religious beliefs about human sexuality—such as
promoting marriage as something other than a union of one man and one woman.
The vast majority of businesses, including those owned by people of faith, already
happily serve all customers, including those who identify as gay, lesbian, and transgender.
Indeed, our research was unable to identify a substantiated, or even alleged, pattern of sexualorientation or gender-identity discrimination in Charlotte. But some business owners, because of
their religious beliefs, are unable to provide services for certain expressive events, such as samesex ceremonies. Similarly, some business owners are unable to create messages that are contrary
to what their faith teaches them is correct. It also may be that some marriage therapists will not
be able to provide marriage counseling for same sex couples. And some faith-based adoption
agencies may not be able to place children with those who are unmarried or in a same-sex
relationship. Because the Ordinance does not provide an exemption to protect rights of
conscience, the enactment of the Ordinance will allow discrimination complaints to be filed
against business owners who are simply trying to operate their businesses consistent with their
faith.
Some examples may help illustrate the problem.
Late last year, pursuant to its local nondiscrimination law, the city of Coeur D’alene,
Idaho tried to force two ministers, Donald and Evelyn Knapp, to perform a same-sex ceremony,
even though doing so would violate their religious convictions.6 The Knapps own the Hitching
Post, a for-profit wedding chapel. The city of Coeur D’alene subsequently confirmed that it had
3

See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 572-73 (1995) (government
may not require a public-accommodation parade organization to facilitate the message of a gay-advocacy group);
Pacific Gas and Elec. Co. v. Public Utils. Comm’n of Cal., 475 U.S. 1, 20-21 (1986) (plurality) (government may
not require a business to include a third party’s expression in its billing envelope); Wooley, 430 U.S. at 717
(government may not require citizens to display state motto on license plates); Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241, 258 (1974) (government may not require a newspaper to include a third party’s writings in its editorial
page).
4
See 42 U.S.C. §§ 1983, 1988 (providing that persons who challenge an unconstitutional state law may recover
costs and attorneys’ fees).
5
Charlotte City Code (“Code”), Art. III § 12-58.
6
Alliance Defending Freedom, “Govt tells Christian ministers: Perform same-sex weddings or face jail, fines,”
October 18, 2014, available at http://www.adfmedia.org/News/PRDetail/9364.

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not made a mistake: the wedding chapel was subject to the nondiscrimination ordinance.7
Alliance Defending Freedom attorneys have a filed a lawsuit on the Knapps’ behalf, challenging
the constitutionality of the nondiscrimination law as applied to them.8
Similarly, Barronelle Stutzman, the owner of Arlene’s Flowers in Richland, Washington,
has for her entire 40-year career served and employed people who identify as gay and lesbian.
But when one of her long-time clients asked her to create the floral arrangement for his same-sex
ceremony, Barronelle declined. She believes that marriage is a sacred institution, created by
God, and that it is only the union of a man and a woman. Barronelle carefully creates each
wedding floral arrangement, designing the flowers to communicate the beauty and joy of the
event. She then transports the flowers to the wedding location and decorates the venue with her
floral designs. Barronelle believed that it would be wrong for her to use her artistic talents to
create floral arrangements for a wedding that she believed to be in conflict with God’s intention
for marriage. So she declined to create the requested arrangements, but she gladly referred her
long-time customer to another florist. She has explained that, while she serves all people, she
does not create floral arrangements for all events. The customer easily found another florist,
going with one of the florists to which Barronelle had referred him. But he and his same-sex
partner filed a complaint against Barronelle anyway pursuant to Washington’s sexual-orientation
nondiscrimination law.9
And in Lexington, Kentucky, a law similar to the Ordinance is currently being used to
prosecute Blaine Adamson, the owner of a printing company named Hands On Originals. Blaine
has employees who identify as gay, and he has always served everyone equally regardless of
sexual orientation. But he declined to print messages on shirts promoting a local “Gay Pride”
festival. It would violate his sincerely held religious beliefs to print and convey messages
promoting such an event. So he declined the business. The representative of the festival found
another printing business that produced the requested shirts for free. Nevertheless, the group
hosting the festival filed a complaint against Blaine and Hands On Originals, alleging sexualorientation discrimination. Blaine has been defending himself against these charges for nearly
three years already, with no end yet in sight. This has taken valuable resources and energy from
operating his business.10
We could provide numerous other examples of business owners who have been sued
pursuant to a law like the Ordinance when they declined to provide services for a same-sex
7

Alliance Defending Freedom, “City of Coeur d’Alene confirms for-profit wedding chapel violates ordinance,”
October 21, 2014, available at http://www.adfmedia.org/News/PRDetail/9366.
8
Id.
9
For more information about Barronelle Stutzman and Arlene’s Flowers, including links to relevant legal
documents, see the Alliance Defending Freedom media page, available at http://www.alliancealert.org/tag/zz-stateof-washington-v-arlenes-flowers/. The complaints against Barronelle are available at
http://www.adfmedia.org/files/ArlenesFlowersAGcomplaint.pdf and
http://www.adfmedia.org/files/ArlenesFlowersACLUcomplaint.pdf. A short video featuring Barronelle telling her
story is available at http://www.youtube.com/watch?v=MDETkcCw63c.
10
For more information about Blaine Adamson and Hands On Originals, including links to relevant legal
documents, see ADF: Ky. T-shirt company not required to promote message it disagrees with, April 20, 2012,
available at http://www.adfmedia.org/News/PRDetail/5454.

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ceremony, or declined to produce a message, because doing so would violate their religious
beliefs. All of the examples have three commonalities.
First, none of the sexual-orientation discrimination litigation taking place today involves
people who were turned away from restaurants or people who were denied necessary services
like medical care. Those things simply do not happen. Rather, the lawsuits all involve plaintiffs
who use statutes like the Ordinance to demand that others participate in or promote same-sex
ceremonies or support or convey messages that conflict with someone’s faith. In other words,
they all involved freedom-of-conscience issues.
Second, in none of these instances was the person desiring services unable to obtain
them. Every time, they easily found businesses wanting to provide the requested services. In
fact, they generally had other business owners lining up to provide services. So the subsequent
discrimination lawsuits were not about the inability to access services. Rather, they were
intended to stamp out any objection to their own views, beliefs, and practices.
Finally, each of these lawsuits have come about because sexual orientation and gender
identity were added to the nondiscrimination law. Such additions, without robust freedom of
conscience protection, can lead to the trampling of religious liberty and free speech.
The Ordinance has no such protection. This arguably renders the Ordinance
unconstitutional under the North Carolina Constitution, which provides that “no human authority
shall, in any case whatever, control or interfere with the rights of conscience.”11 And to the
extent that the Ordinance compels anyone to produce a message that they do not want to
produce, it is likely unconstitutional under the free speech clause of the First Amendment,12
requiring the taxpayers of Charlotte to pay the attorneys’ fees of whoever successfully challenges
it.13
II.

The Ordinance Will Require Public Businesses and Private Clubs—Perhaps
Including Churches---To Allow Men to Use The Women’s Facilities and Vice Versa.

The current nondiscrimination statute makes it “unlawful to deny any person the full and
equal enjoyment of the . . . facilities . . . of a place of public accommodation.”14 But the current
law has an exemption for “[r]estrooms, shower rooms, bathhouses and similar facilities which
are in their nature distinctly private.” Also exempted is the “YMCA, YWCA and similar types
of dormitory lodging facilities[,]” as well as “[a] private club or other establishment not, in fact,
open to the public.”15 Under the current law, then, public businesses and private organizations
are allowed to segregate facilities by sex.
11

N.C. Const. Art I, § 13.
See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“[i]f there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”).
13
See 42 U.S.C. §§ 1983, 1988 (providing that persons who challenge an unconstitutional state law may recover
costs and attorneys’ fees).
14
Code, Art. III § 12-58.
15
Code, Art. III § 12-59.
12

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The Ordinance, however, will remove this exemption. And it adds “gender identity” as a
protected characteristic. Thus businesses, fitness centers, and private clubs will be required to
allow men who say they identify as female to use the women’s facilities, and likewise allow
women who say they identify as male to use the men’s facilities. Because neither the current
nondiscrimination law nor the Ordinance exempts churches and other houses of worship, this
requirement might be applied to them as well. A business, private club, and possibly church that
seeks to prevent a biological male from using the women’s facilities, or vice versa, will engage
in prohibited discrimination in those cases where the person identifies as the opposite gender.
It is important to note that, if this Ordinance is enacted, it will not be necessary for a male
to dress or otherwise present as a female in order for him to enter the women’s facilities. Rather,
because discrimination on the basis of gender identity will be prohibited, he must simply state
that he identifies as female, regardless of his appearance. Nor will there be any way for an entity
subject to this law to verify that a man actually does identify as female. If the man says he so
identifies, he must be allowed to use the women’s facilities.
This has the potential to lead to a number of unintentional and undesirable consequences.
First, allowing biological males into the restrooms, shower rooms, or locker rooms used
by biological females, and vice versa, may violate constitutional privacy rights. The Ninth
Circuit Court of Appeals has noted that “[w]e cannot conceive of a more basic subject of privacy
than the naked body. The desire to shield one’s unclothed figure from . . . strangers of the
opposite sex[] is impelled by elementary self-respect and personal dignity.”16 The Tenth Circuit
Court of Appeals has similarly explained that a person’s constitutional right to privacy is violated
where a government policy or conduct allows a member of the opposite sex to view him or her
while “engag[ing] in personal activities, such as undressing, using toilet facilities, or
showering.”17 And the Fourth Circuit Court of Appeals has noted that the government has a
responsibility to protect the right of incarcerated men to not be seen naked by females.18 Thus,
the Ordinance, if enacted, may violate the constitutional privacy interests of citizens who will be
forced to share a restroom, shower room, or locker room with a person of the opposite biological
sex.
A quick example will illustrate the concern regarding privacy. Evergreen State College
in Olympia, Washington, shares its swimming pool and adjacent locker rooms with the local
high school and a children’s swim club. On several occasions in 2012, girls as young as six
years old reported seeing a biological man naked in the locker room. The mother of a 17 year
old girl even filed a police report detailing what her daughter saw. The daughter felt
uncomfortable having a naked biological male in the locker room with her. The mother did not
want her daughter seeing a naked man, nor did she want a biological male in the locker room
16

York v. Story, 324 F.2d 450, 455 (9th Cir. 1963).
Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982).
18
See Lee v. Downs, 641 F.2d 1117, 1119-20 (4th Cir. 1981) (noting that men are “entitled to judicial protection of
their right of privacy denied by the presence of female[s] . . . in positions to observe the men while undressed or
using toilets”).
17

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while her daughter was changing. A swim coach also filed a police report. She described seeing
the man sitting in the sauna with his genitalia plainly exposed. But Evergreen State College
continues to let this man use the women’s facilities. Because of a law like the Ordinance, they
cannot deny this man access, even though young girls are present, because the man identifies as a
woman.19
Not only are privacy concerns implicated, but the Ordinance may put women and girls at
risk of voyeurism and assault. Laws allowing biological males to use facilities designated for
women may be used by opportunistic, heterosexual sexual predators to gain easier access to
women, teens, and girls. Sadly, this has happened in other communities that have enacted laws
prohibiting discrimination on the basis of gender identity. To give but two examples, a man in
Los Angeles pretended to be a woman so he could secretly video-record women and girls as they
used the toilet. When finally caught, he had hours of video of numerous unsuspecting women
and girls.20 And a violent sexual predator pretended to identify as a woman so he could gain
access to women’s shelters. Once accepted in the shelters, he sexually assaulted two women.21
If the Ordinance is enacted, businesses will no longer be able to protect their female
patrons by preventing these predators from entering the women’s facilities. Instead, they will
have to allow all biological males who assert that they identify as female access to rooms
previously reserved for biological females. This puts women, teens, and girls at risk of harm.
Businesses will thus be given the untenable choice of complying with the law or seeking
to protect the safety and privacy of their patrons. They will not be able to do both. This places
businesses in a no-win situation.
III.

The Ordinance Will Require the City to Engage In Impermissible Discrimination
On the Basis of Religion When it Chooses Businesses With Which to Contract.

The Ordinance, if enacted, will require the City to only accept contract bids from
businesses that provide, with respect to employment decisions, protection for sexual orientation,
gender identity, gender expression, and marital status. If a business or service does not provide
such protection, it cannot be awarded City contracts. This requirement may cause the City to
19

Wash. college OK’s exposure of young girls to naked man, Alliance Defending Freedom News Release, Nov. 1,
2012, available at http://www.adfmedia.org/News/PRDetail/7770; Matt Driscoll, Transgender Student in
Evergreen’s Locker Room Draws Ire of Arizona Religious Group, Seattle Weekly News, Nov. 5, 2012, available at
http://www.seattleweekly.com/dailyweekly/2012/11/transgender_student_in_evergreen_locker_room_draws_letter_
from_arizona_alliance_defending_freedom.php; Nina Golgowski, Parents’ outrage as transgendered woman is
permitted to use the women’s locker room ‘exposing himself to little girls,’ Mail Online, Nov. 3, 2012, available at
http://www.dailymail.co.uk/news/article-2227562/Colleen-Francis-Outrage-transgendered-woman-permitted-usecollege-womens-locker-room-exposing-himself.html.
20

See, Robert J. Lopez, Man wore dress, wig to videotape women in bathroom, deputies say, Los Angeles Times,
May 14, 2013, available at http://articles.latimes.com/2013/may/14/local/la-me-ln-man-videotape-women-inrestroom-20130514.
21
See, Sam Pazzano, Predator who claimed to be transgender declared dangerous offender, Toronto Sun, February
26, 2014, available at http://www.torontosun.com/2014/02/26/predator-who-claimed-to-be-transgender-declareddangerous-offender.

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engage in religious discrimination against business owners who, for religious reasons, choose not
to employ persons whose lifestyles violate the businesses’ religious beliefs. For example, if the
City were to solicit bids for a contract to provide services to at-risk children, religious
organizations that, because of religious reasons, cannot employ those who identify as gay will
find themselves excluded from the bidding process. This seems to place the City in the position
of discriminating because of religious beliefs—yet, the current City law prohibits discrimination
on the basis of religion.
Conclusion
The Ordinance raises many constitutional concerns. It could be used to compel
businesses to speak messages they do not want to speak and to engage in activities and events
that, for religious reasons, they cannot in good conscience engage. It will force businesses,
private clubs, and perhaps even churches and other houses of worship to open their bathrooms
and other facilities to both sexes. This will violate the privacy of women and girls, and place
their safety at risk. And the Ordinance may require the City to engage in impermissible
discrimination on the basis of religious belief.