Joel Burgess

jburgess@citizen-times.com

ASHEVILLE - The city should write a LGBT anti-discrimination ordinance now in anticipation of the overturning of a North Carolina law forbidding such local protections, some City Council members said Thursday.

The move follows the ruling Tuesday by a federal appeals court saying a Virginia school board discriminated against a transgender teen by forbidding him from using the boys' restroom.

It's not entirely clear what effect the Virginia ruling by the 4th U.S. Circuit Court of Appeals will have on HB2 and a case pending against it in federal court in North Carolina.

But three councilmen — Cecil Bothwell, Brian Haynes and Keith Young — said the city should start writing a local ordinance modeled after a Charlotte rule. That ordinance drew attention for allowing transgender people to choose which bathroom to use and led Republican lawmakers to pass state House Bill 2 negating such local ordinances.

The main thrust of the Charlotte ordinance made it illegal for private businesses open to the public, such as hotels, to discriminate based on sexual orientation or gender identity.

"It is our belief that the Asheville City Council should prepare an ordinance modeled on the non-discrimination ordinance passed by the Charlotte City Council on Feb. 22," said a news release, which was sent by Bothwell. "We should be ready to move forward on that promise when the court rules on the North Carolina law."

Other council members, such as Gordon Smith, said they supported the idea, though a few questioned the need for the announcement and suggested the council move forward in a "deliberative" manner.

Council members had originally decided against following Charlotte's lead, saying March 8 that city legal staff had advised them that Charlotte passed its rule to change a prior ordinance that explicitly left out bathroom choice for transgender people. Asheville didn't need that fix, they said.

But after Republican lawmakers quickly quashed the Charlotte rule with the law now internationally known as HB2, calls for opposition grew. They were especially strong in Asheville, which has a large LGBT population and the state's highest number of same-sex couples per capita when counted by county.

Pressure from outside the state included businesses such as PayPal and Deutsche Bank canceling plans for expansions and Bruce Springsteen, Pearl Jam and other entertainers calling off concerts.

In early April, a shift appeared on the council. Several of the elected officials said they would support such a local ordinance if HB2 were revoked. Haynes said Asheville should not wait but should pass an ordinance even if it violated state law. The act would be a form of "civil disobedience," he said.

On April 12, the council made its first official statement against HB2, voting unanimously for a resolution that condemned the law. The resolution had much stronger language than an earlier draft and called for a repeal of HB2, saying the city would seek opportunities to take legal action against the state mandate.

It also called for a local ordinance, saying the council should "adopt appropriate local ordinances to advance the cause of equal protection."

The Virginia ruling is now sparking belief among some LGBT rights advocates that HB2 will too be invalidated by the courts. The Gloucester County School Board could appeal the decision to the full appeals court or the U.S. Supreme Court. But if the ruling stands, it it appears there will be at least some effect in North Carolina.

North Carolina schools will need to follow the ruling because of the large amount of federal funding they receive, said Maxine Eichner, a University of North Carolina law professor who is an expert on sexual orientation and the law.

Eichner said the ruling - the first of its kind by a federal appeals court - means the HB2 provision pertaining to restroom use by transgender students in schools that receive federal funds also is invalid.

But Campbell University law professor Greg Wallace said he doubted a broader effect from the court decision.

“It doesn’t address the larger issue of competing privacy interests” in places such as open locker rooms and showers, Campbell said.

He said anatomical differences are the reason for separate bathrooms and the push to allow transgender people into different facilities is a "zero-sum game" where "one person wins and another loses" because the other groups are claiming a competing privacy interest.

In Asheville, other council members including Mayor Esther Manheimer, Vice Mayor Gwen Wisler and Councilman Smith reaffirmed their support for a local ordinance. Councilwoman Julie Mayfield was away on vacation and could not be reached for comment.

Manheimer referred to comments she made in early April, saying "assuming cities have that right," then Asheville should pass an anti-discrimination rule.

Wisler said the idea was consistent with the council's April 12 resolution and therefore she supported it. But the vice mayor said she would have preferred such actions to come through the whole council.

"I'm disappointed that these three council members chose to issue a press release without conferring with the balance of the council," Wisler said.

Smith, an outspoken LGBT rights advocate, said he wasn't sure the announcement by the three was necessary, "given the will of council" in favor of an ordinance.

He said the way such a local rule could be written is important.

"For past equality measures, we have used different structures. The one I prefer would be very inclusive and deliberative."

The Associated Press contributed to this report.

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