Commission Rejects "Sexual Orientation" Rule

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Commission Rejects "Sexual Orientation" Rule

Special Report - January 17, 2008
The North Carolina Rules Review Commission voted on Thursday, January 17 to reject a rule change proposed by the North Carolina State Personnel Commission that would grant protected status to state employees on the basis of “sexual orientation.” The rule change would add “sexual orientation” to the area of North Carolina’s administrative code that deals with equal employment opportunity and would define that term to mean “actual or perceived heterosexuality, homosexuality, or bisexuality, or a person’s gender-related identity or expression.”

The job of the 10-member Rules Review Commission (RRC) is not to make policy decisions about proposed rules, but instead is to review proposed regulations that have progressed through the rulemaking process and are about to go into effect to ensure that: (1) the agency seeking the rule has the legal authority to implement the rule, (2) the language of the rule is clear and unambiguous, and (3) the rule is necessary.

North Carolina Family Policy Council vice president and director of government relations, John Rustin, testified before the RRC that the proposed rule change did not meet any of these three criteria. Referring to a letter submitted by the Council to the RRC earlier in the week, Rustin argued that “sexual orientation” does not exist anywhere in state law and the term is not recognized by the state or federal government or the U.S. Supreme Court as a valid category for inclusion in Equal Employment Opportunity (EEO) laws.

“The General Assembly had chosen to list race, religion, color, creed, national origin, sex, age and handicapping condition in the state’s Equal Employment Opportunity law,” Rustin commented. “Without specific direction from the legislature, a state agency does not have the authority to add to or take away from these specific legislatively-defined categories. In fact, the General Assembly has rejected legislation to add ‘sexual orientation’ to the state’s EEO law for the past three legislative sessions.”

In a 4-2 vote (one member abstained from voting and others were absent), the RRC determined that the State Personnel Commission did not have authority to make the rule and that the proposed language attempting to define “sexual orientation” was ambiguous and unclear. The RRC did not address the question of necessity. According to the rulemaking procedures, the Office of State Personnel will have the opportunity to reappear before the RRC at its next meeting on February 21 in an attempt to overcome these objections.