In a strange and remarkable replay of the controversial one-day special legislative session that took place one year ago last week, the North Carolina General Assembly passed legislation today in a matter of hours that purports to repeal HB2 – the state’s infamous LGBTQ discrimination law.
About 12 hours after Democratic Gov. Roy Cooper and Republican legislative leaders reached a compromise to repeal House Bill 2 late Wednesday (March 29), the legislation was speeding through its lone committee hearing, and it has cleared the Senate and the House by mid-afternoon Thursday (March 30). Cooper then quickly signed the bill into law.
Rev. William Barber of the North Carolina NAACP expressed criticisms in a damning statement before the bill was signed into law today:
“HB2 must be repealed in full. This bill is anti-worker, anti-access to the courts, and anti-LGBTQ. It is shameful for Tim Moore and Phil Berger to demand a discriminatory compromise on a bill that should have never been passed in the first place. Setting a moratorium on local government’s ability to pass anti-discrimination ordinances and to regulate private employment practices is another sweeping act of hubris by the legislature and takes power from officials elected by the people to serve the rights of the people. This is a bait and switch. We fought against this tactic when this same legislature sought to strip power from the Governor–disregarding their constitutional obligations in an effort to silence the voice of the voters. We will continue to fight against retaliatory voter suppression, anti-worker legislation, and any backroom efforts to enshrine discrimination in our laws. Above all, any moratorium on civil rights is not a compromise; it is a contradiction with the principle of equal protection under the law and our moral values. We call on all those who stand for justice to vote no on compromise and pass a clean, full repeal of HB2.”
State lawmakers passed House Bill 2 to nullify a Charlotte ordinance that required businesses to allow transgender people to use the public bathroom of their choice. The state law said private entities could set their own bathroom access rules and required that people use bathrooms in schools and other government buildings that match the gender listed on their birth certificates.
The law, which also created a statewide nondiscrimination policy that excluded gay and transgender people and barred cities and counties from extending such protections to them, brought nationwide scorn on the state. Businesses scrapped expansion plans, conventions were moved elsewhere, concerts were canceled and the NBA, the NCAA and the Atlantic Coast Conference all shifted events out of North Carolina.
Under the terms of the new legislation, which was only formally made public for the first time this morning in a hastily organized meeting of the Senate Rules Committee, the state law established by HB2 is officially repealed. The new bill, however, also goes on to make three additional changes to state statutes that equality and civil rights advocates and other observers quickly and loudly condemned as a betrayal.
Section 2 of the bill specifies that the General Assembly explicitly preempts the field of regulating access to multiple occupancy restrooms, showers and changing facilities. What this means is that local governments and other public entities (like the university system) are specifically barred from enacting transgender equity ordinance and rules without the legislature’s approval. As a practical matter, this provision reiterates and reinstates one of the central prohibitions of HB2.
Section 3 of the bill makes clear that no local governmental body in the state can “enact or amend any ordinance regulating private employment practices or regulating private accommodations.” Section 4 of the bill then goes on to make clear that Section 3 will remain in effect until December 1, 2020.
What these latter two sections appear to mean in tandem is that there is a moratorium for the next three years and eight months on any local government passing any ordinance that provides protection to LGBTQ people when it comes to private employment or public accommodations.
As a result, LGBTQ people in North Carolina can still be fired or denied service by private sectors because of who they are and no local government can do anything about it until the end of the year 2020.
Though the bill (House Bill 142) removes the HB2 provision that mandated that people only use restroom facilities that match their birth certificates and apparently received the blessing of some business and sports interests that had previously removed their events and investments from the state, it provoked passionate opposition from a wide array of equality and civil rights advocates, activists, observers and editorialists.
One of the most scathing critiques of the bill came from the editorial page of the Charlotte Observer the newspaper of record for the city in which the controversy first emerged in North Carolina most visibly last year:
“Legislators and Gov. Roy Cooper hailed Thursday’s HB2 repeal bill as a compromise. In fact, it is nothing of the kind. It is a betrayal of the promises the governor made to the LGBT community and a doubling down on discrimination by Republican legislators who have backed it all along.
House Bill 142 literally does not one thing to protect the LGBT community and locks in HB2’s most basic and offensive provision. It repeals HB2 in name only and will not satisfy any business or organization that is truly intolerant of an anti-gay environment and of a state that codifies discrimination.
HB2’s most fundamental requirement was that local governments cannot pass anti-discrimination ordinances that govern public accommodations such as restaurants and hotels. Under Thursday’s agreement, that is still true, until at least December 2020.”
“The so-called ‘deal’ was disgracefully rammed through the legislature today following secret backroom negotiations on Wednesday. News of the fake repeal was met with a huge national outcry from major civil rights organizations including the HRC, Equality North Carolina, the National Center for Transgender Equality, Lambda Legal, the ACLU, Planned Parenthood, the American Federation of Teachers, the National Center for Lesbian Rights, Voto Latino, The Lawyers’ Committee for Civil Rights Under Law; corporations including IBM, Salesforce, Dow and Levi’s; and celebrities like Ellen Page, Jane Fonda, Janet Mock, Tegan and Sara, Montel Williams, Rob Reiner, Jason Collins, Martina Navratilova and Raymond Braun have all called out this rotten deal.
‘After more than a year of inaction, today North Carolina lawmakers doubled-down on discrimination,’ said HRC President Chad Griffin. ‘This new law does not repeal HB2. Instead, it institutes a statewide prohibition on equality by banning non-discrimination protections across North Carolina and fuels the flames of anti-transgender hate. Each and every lawmaker who supported this bill has betrayed the LGBTQ community. HRC will explore every legal action to combat this dangerous legislation, and we urge all businesses, sports leagues and entertainers who have fought against HB2 to continue standing strong with the LGBTQ community attacked by this hateful law.’
‘HB2 was hastily passed without any input from the LGBTQ community just one year ago,’ said Chris Sgro Equality NC Executive Director. ‘Today, we returned to the legislature with a deal made between Governor Cooper, Phil Berger and Tim Moore that once again left out the ones most impacted by the discriminatory law – LGBTQ North Carolinians. Lawmakers and Governor Cooper have failed to resolve the problems with HB2 by doubling down on discrimination. Once again, the North Carolina General Assembly has enshrined discrimination into North Carolina law.’”
And this is from the statement issued by the ACLU of North Carolina:
“One year after HB2 was introduced and signed into law in just 12 hours, it is shameful that legislative leaders and North Carolina’s governor are once again rushing through a discriminatory anti-LGBT measure without proper vetting or an opportunity for public input. The way to undo HB2’s profound damage to North Carolina and its people has always been a full, clean repeal, but this proposal would keep anti-LGBT provisions of the law in place and continue to single out and target transgender people. Lawmakers must vote against this proposal, and should it reach his desk, Governor Cooper should withdraw his support and veto it.”
A sampling of some of the other critiques issued over the past several hours can be accessed here.
What spurred Governor Cooper to change his mind and support the legislation is unclear at this point, though one presumes the demands of business and sports interests like the NCAA were the driving force. Just last December, Cooper derided the idea of a six-month moratorium on local nondiscrimination ordinances as “doubling down on discrimination.” Today, the Governor signed off on a moratorium that will last 44 months.