Charlotte City Attorney Mac McCarley told the city council in closed session Monday that he plans to retire at the end of December, according to The Charlotte Observer. McCarley, whose position is hired by the city council, has served as city attorney since 1994. His legal opinions have often been the source of frustration for LGBT community members.
In 2009, the city was sued by a fired, transgender employee. At the time, McCarley said the city would not take responsibility in the case.
“Transgendered individuals do not have any rights under the federal employment discrimination laws,” he said.
The City of Charlotte does not have employment ordinances prohibiting discrimination on the basis of sexual orientation and gender-identity, though City Manager Curt Walton instituted an administrative policy last year prohibiting discrimination on sexual orientation.
McCarley has insisted the city council lacks the authority to pass an employment non-discrimination ordinance or policy inclusive of “sexual orientation.”
In a Feb. 23, 2010, memo from McCarley to Walton, McCarley said federal law in Title VII does not prohibit discrimination based on sexual orientation. The city charter, he said, also limits the city’s non-discrimination statement to those characteristics already listed (race, religion, color, sex, national origin, age, disability, and political affilation).
In the memo, McCarley said Walton’s 2010 administrative policy change is the “most legally defensible way to include sexual orientation in the City’s equal employment language without first requesting a Charter amendment from the legislature.”
The term “gender identity” was not added to Walton’s new non-discrimination policy.
“We are not recommending that you include ‘gender identity’ as a protected status,” McCarley’s memo to Walton read. “This is a relatively new term, has no recognized legal definition, and is highly subjective.”
Last year, McCarley told qnotes he worked with the city manager’s office to come up with the best possible changes for the new policy.
“The city manager asked us if we could find a way to do this and we gave him the best option we could,” he said in a telephone interview.
McCarley said the term “gender identity” had not been held up to any judicial scrutiny.
Harper Jean Tobin, policy counsel for the Washington, D.C.-based National Center for Transgender Equality (NCTE), told qnotes she believed city officials were mistaken.
“It’s not new in the sense that it has been part of various state and local laws in many places for a decade, in some places for two decades,” Tobin said in a 2010 interview via phone. “There is a pretty well established meaning.”
Charlotte is the last major city in the state to take up discussion of LGBT-inclusion in city ordinances or policies. Durham and Raleigh passed “sexual orientation”-inclusive non-discrimination policies in 1987 and 1988, respectively. Seven other cities and four counties include “sexual orientation” in their non-discrimination policies or ordinances. Boone, Carrboro, Chapel Hill and Orange County also include “gender identity.”