North Carolina’s controversial “bathroom bill,” which required transgender people to use a bathroom matching the gender on their birth certificate, has been repealed–at least in part. Unfortunately, while the removal of this discriminatory rule-H.B. 2-is good news, the changes leave some of the worst elements of the law in force for the foreseeable future. In fact, the compromise reached between the conservative majority and liberal majority in North Carolina’s Congress in achieving this repeal has people on both side of the issue criticizing the outcome–some calling any compromise on the law a mistake and the other side pointing to how damaging the parts that remain are to the LGBT community.
The original rule was put in place after Charlotte passed a local law including LGBT persons in their anti-discrimination laws–the North Carolina Congress felt that it was so pressing that they called an emergency session to put a rule in effect blocking cities from passing anti-discrimination laws beyond what the state already has–the bathroom ban was a part of this law. While the bathroom rules have been repealed, the new version leaves in place the rules forbidding any individual city from passing local laws which prohibit discrimination based on sexual orientation or gender identity until 2020. This is certainly better than the previous version which included the same restrictions but lasted indefinitely, however, it still leaves several years where the LGBT community will be left adrift.
The Democratic Governor of North Carolina, Roy Cooper, ran on a platform of repealing the “bathroom bill.” The repeal now is a result of a number of failed initiatives to get rid of the law–ultimately leading to the compromise we see today. The Governor described the repeal as “not perfect” but “an important step forward.” It’s certain that he has had an uphill battle in even reaching this point trying to push the change through a Republican-majority state legislature. The step is just that, a step. However, in the face of such serious restrictions on protecting the LGBT community it feels like a baby step at best.
With the odds so stacked against any change to the law whatsoever, you may be wondering how any repeal got through the North Carolina Legislature at all. The truth is that the changes are as much a story of money and basketball as a story of overcoming discrimination.
When the original law was passed, it led to serious sanctions from some of the biggest cities in the nation. The mayors of Salt Lake City, Seattle, San Francisco, New York, Washington, and a number of other cities all placed bans on state-sponsored travel to North Carolina. The entire states of Connecticut, New York, Minnesota, Washington, and Vermont have banned travel by public employees and representatives to North Carolina
A number of businesses also got in on refusing to business with North Carolina. Paypal and Deutche bank are notable examples of businesses which took a stand by cancelling expansion plans in North Carolina after the law was passed. Musicians and artists, from Bruce Springsteen to Cirque de Soleil, all refused to perform and cancelled performances in North Carolina The 2017 NBA All-Star game was pulled from Charlotte.
H.B. 2 also led to something which, for North Carolina, was maybe even more serious–sanctions from the NCAA. The NCAA pulled all tournaments out of North Carolina-golf, swimming, and (most importantly) basketball. North Carolina currently has the number one ranked college basketball team and college basketball is huge business in North Carolina. As long as H.B. 2 continued to exist, the NCAA refused to host any events in North Carolina.
All told, conservative estimates had the economic losses suffered due to H.B 2 in the hundreds of millions with projections that they would stand to lose billions in the coming years. The partial repeal of H.B. 2 came shortly before a NCAA deadline which would have cost North Carolina future hosting opportunities if H.B. 2 remained in place. It’s no stretch to say that it is near certain that economics, and not a desire to end discrimination, were the real motivation behind the changes to H.B. 2.
North Carolina May Still Not Get What They Want
Economics may be the motivation behind the changes, but the changes themselves may be too half-hearted to convince governments, businesses, and the NCAA to change their mind on North Carolina. The mayors of San Francisco, Seattle, Salt Lake City, New York and Washington have already said the changes leave the worst of the law in place and they won’t be lifting their sanctions.
The NCAA has publically announced that it based its ban, at least in part, on both the bathroom ban, the bar on local LGBT anti-discrimination laws, and the travel bans from states and cities. Both the bar on local laws and the travel bans look to be staying in place. However, in the wake of the repeal, the NCAA has “reluctantly voted” to remove their ban on hosting events in North Carolina. The decision led to much criticism after the NCAA itself described the repeal as having “minimally achieved” a non-discriminatory environment. This being said, the NCAA is making it clear that they may change their mind at any time as the situation evolves.
North Carolina Conservatives Gambling on the Fed
The Republican North Carolina Senate Leader Phil Berger has made it clear that changing the prohibition on local anti-discrimination laws from indefinite to lasting until December of 2020 is a move attempting to “allow federal litigation to play out.” In other words, they believe Congress will pass laws explicitly limiting anti-discrimination laws when it comes to the LGBT community and make H.B. 2 irrelevant.
In the courts, the opposite trend seems to be the case. A number of cases out the EEOC in recent years have included sexual orientation and gender identity as a protected subsection of gender. In fact, just around a week ago the highest court yet–a Federal Appeals Court in Chicago—made a ruling saying just this.
On the flip side, President Trump recently rescinded an Obama-era Fair Pay and Safe Workplaces Executive Order which prohibited federal contractors from discriminating on the basis of sexual orientation or gender identity–basically saying it is alright to start discriminating on this basis.
The reliance on Congress to limit anti-discrimination in this way seems to read the priorities and positions of the Trump administration fairly well. However, the trends in the courts show that any such law would face serious legal challenge and more and more precedent saying that such a move might be unconstitutional.
The repeal of H.B. 2 feels like a mostly symbolic gesture in light of how bad the parts of it that remain are for the LGBT community. That being said, the changes still help restore some of dignity stolen from transgender people in North Carolina–and that is a victory. The story of laws like this is not over, Texas already is considering a similar law despite the backlash against North Carolina. What’s more, the belief that the issue will be addressed–one way or another–at a federal level is feeling more and more like an inevitability. This repeal is a small victory, but both sides will have eyes to the future for the ultimate determination of the underlying issue–sexual orientation and gender identity as a legally protected class.