HB2 (S.L. 2016-3): Public Facilities Privacy and Securities Act FAQ

Posted by The Arc of North Carolina

On March 23, 2016 the North Carolina General Assembly came back to Raleigh for a Special Session to overturn a Charlotte ordinance that expanded nondiscrimination protections and also permitted the use of public restrooms based on gender identity. In response to this ordinance the House Republican leadership filed HB2: Public Facilities Privacy and Securities Act. It is very important for our community to understand that HB2 is not just about restrooms.

HB2 became a much larger piece of legislation that may have significant unintended consequences for people with disabilities. A quick example is that there had to be clarifying language to make sure people with disabilities could receive assistance in using the restroom and for a brief moment the legislation looked like it may not permit people with disabilities protections under public accommodations. Although some of these issues were addressed prior to HB2 becoming a law, other issues are still causing disability advocacy groups significant concern. This FAQ hopes to give some clear and helpful answers to many concerns that have been voiced to us since the passage of HB2. We will continue to update this document as we receive additional questions with respect to this law.

This FAQ will focus only on the restroom provisions. We will release a second FAQ next week that will focus only on employment protections and housing.

Restroom Provisions:

What is a single sex multi-use restroom?

Almost all of us have used one of these because they are the most available public restrooms. These are the restrooms we find in malls, concert halls, public offices and at the NC General Assembly. They normally are designated for one gender, male or female, and include an ADA accessible stall with a pull down changing table.

What does HB2 change about how who can use these restrooms?

This law states that you have to use the restroom that is the same as your biological sex on your birth certificate. This legislation was in response to a Charlotte ordinance.

Who has to follow this law?

Any public entity, including state agencies, courts houses, state museums, community colleges, the University system in North Carolina, libraries, public schools, the North Carolina General Assembly, etc. Basically any building that is either part of the state of North Carolina or reports to a Council of State official. For example: museums report to the Department of NC Cultural Resources, all public schools report to the Department of Public Instruction, and state mental health hospitals and developmental disability centers report to the Department of Health and Human Resources.

Does it change anything around restrooms that are designated “family restrooms”?

No. The law does not change anything around “family restrooms”. These were always designed so that a either a male or female could access the restroom. They are also a single stand alone restroom so they do not meet the definition of “single sex multi-use restrooms.” Family Restrooms are also fully ADA accessible. We wish there were many more of these in public spaces.

I have a family member who needs help when they use the restroom because of their disability. Can I still help a family member who needs assistance in a single sex multi-use restroom in NC?

Yes. If your family member has a disability or requires medical assistance you can still provide that help. HB2 has a list of “exceptions” to attempt to make sure that if a person needs help now they can continue to get that help.

Here is the official list of exceptions:

  • For custodial purposes.

  • For maintenance or inspection purposes.

  • To render medical assistance.

  • To accompany a person needing assistance.

  • For a minor under the age of seven who accompanies a person caring for that minor.

  • That has been temporarily designated for use by that person's biological sex."

(http://www.ncleg.net/Sessions/2015E2/Bills/House/HTML/H2v4.html)
 

I am a caregiver/support worker for a person with a disability and I am not the same gender as the person. Can I also continue to help the person I support with their medical or restroom needs now HB2 has become law?

Yes. The same exceptions above also apply to you.

My child is in public school in North Carolina and needs assistance using the restroom and in getting changed for physical education classes. How does this law affect him/her?

HB2 also includes exceptions for students with disabilities from K- post secondary education who need assistance in the restroom. This assistance is for both medical need and personal assistance. Here are those exceptions:

  • For custodial purposes.

  • For maintenance or inspection purposes.

  • To render medical assistance.

  • To accompany a student needing assistance when the assisting individual is an employee or authorized volunteer of the local board of education or the student's parent or authorized caregiver.

  • To receive assistance in using the facility.

  • To accompany a person other than a student needing assistance.

  • That has been temporarily designated for use by that person's biological sex."

 

My child with a disability while at school has someone who assists them. Does this law change anything for them?

No. They can still receive assistance from one of the schools support staff.

How does HB2 apply if I have a child with a disability over the age of 7?

Yes, but this requires a bit more explanation.

If you have a child with a disability regardless of age and they need help using the restroom, then you are covered in the previous exceptions section.

Scenario: Mom and son with cerebral palsy are visiting the NC Museum of History. Son needs to use the restroom and needs help from mom to transfer from his wheelchair to the toilet in the accessible restroom stall. No problem at all, this is covered by the previous exceptions.

Another scenario: Same mom and child with a disability are at the NC Museum of History. Son is 8 years old. Mom needs to use the restroom but son does not need to.  Based on the way the bill is currently worded the son would need to wait outside the women’s restroom (if the mom’s biological sex is female).

So how does the age 7 restriction work if I have a child without a disability?

If you have a child without a disability and they are 7 or younger they can come into the restroom with you even if they do not have the same biological sex as you. But when he or she turns 8 they will have to wait outside until you are done and they will have to use a restroom on their own based on their biological sex. So 8 year old boy or girl would need to use a public restroom on their own.

Here is the scenario best used to describe this section:
Father and daughter are at the NC Museum of History taking in the exhibits. Daughter is 8 years old. Father needs to step away for a moment to use the restroom. His daughter will not be able to go into the restroom with him and will need to wait outside the single sex multi-use restroom.

So what happens now?

Right now HB2 is the law of the land. Several advocacy groups including the ACLU of North Carolina have filed a federal lawsuit against multiple sections of the law. We are continuing to monitor all unintended consequences of this broad legislation and we continue to review and receive feedback regarding sections of the bill that deal with discrimination in the work place. (We will issue more information on that section soon).

However, if you experience any issues around the use of restroom facilities in North Carolina due to this law we would want to know about that. Please email our Director of Government Relations Julia Adams-Scheurich at jadams@arcnc.org.