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Billy Constangy
Fwd: As discussed
Friday, March 25, 2016 9:53:14 AM

I need hard copy of this delivered to house. Pat

Sent from my iPhone
Begin forwarded message:
From: Dan Bishop <>
Date: March 25, 2016 at 12:42:17 AM EDT
To: "" <>
Subject: RE: As discussed
Actually, on very last point -- the prohibition from regulating wages was
also a clarification of existing law only.

From: Dan Bishop

Sent: Friday, March 25, 2016 12:36 AM
To: '' <>
Subject: As discussed

Q: Why could the General Assembly not simply reverse the "bathroom provision"
of the Charlotte ordinance?

A: The N.C. Constitution, Art. I, Sec. 24, prohibits the General Assembly from
passing local acts on certain subjects, including business regulation (trade, labor,
mining and manufacturing). There is no precedent for the General Assembly to
amend or modify an ordinance of a municipality, and to do so on a subject of
business regulation would almost certainly violate Art. I, Sec. 24. Therefore, we
could not pass a law to amend or modify Charlotte's ordinance specifically and
directly to reverse the bathroom-access aspect.

The City Council, in amending an existing ordinance to mandate cross-sex

bathroom access in local businesses,not only acted beyond their delegated
authority, they alsocreated direct conflicts with at least two state statutes, the
Building Code and the indecent exposure statute, both of which already preclude
unisex use and operation of such facilities. Had we attempted to write a bill just
to forbid cities from passing ordinances allowing use of opposite-sex facilities, we
would have created a thirdstatutoryconflict, but no clear resolution. And despite
continuing uncertainty, at best we would have invalidated the Charlotte

ordinance entirely by virtue of that conflict.

For a clearer result, we could expresslypreempt cities entirely from regulating

business discrimination. But we still would have invalidated the Charlotte
ordinance completely.

In either event, invalidating the ordinance wholly would mean that protections
from public accommodations discrimination on grounds of race, color, religion,
national origin and sex that had been in place (perhaps without proper authority)
since 1968 (sex actually was added in 1972) would have been eliminated,
arguably by act of the General Assembly.

The way to prevent that result was whatwe did. We enacted a public policy
statement applying Charlotte's legacy public accommodations protections on a
statewide basis. We coupled that with a preemption of cities from adopting
ordinances in this area, to prevent further conflicts. And we adopted a policy of
sex-separated bathrooms statewide for government buildings. That policy is not
binding on private businesses, which are free to pursue their own policies.

All of this was necessary to undo the cross-sex bathroom maneuver without
uncertainty and without killing the legacy public accommodations protections.

While all of this is true and accurate, and explains why addressing the bathroom
policy alone did require us to proceed as we did in Parts I and III of the bill, I
personally believed that it was even more appropriate on policy grounds to clarify
through field preemption the existing limits on city authority that Charlotte
disregarded. They simply have not been delegated this authority and it is
inconsistent with our governing constitutional structure. Indeed, the one
remaining section of the bill, preempting cities'regulation of their contractors'
business practices, was essential to prevent the City from imposing mandates on
businesses located outside city limits. The prohibition on wage regulation is the
only item that was not strictly necessary, but it also was well warranted and will
be welcomed by businesses.


Rep. Dan Bishop

North Carolina Senate

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Work: 704-716-1202
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