Yesterday (March 30), we learned that the NC General Assembly “repealed” HB2, the so-called “Bathroom bill.” The repeal bill, HB142 (“An Act to Reset S.L. 2016-3) passed by a vote of 70-48 and was signed by Governor Roy Cooper immediately.
In favor of the bill was our own representative (Pitt County; district 9) Greg Murphy, our own senator Louis Pate, along with Senators Joyce Krawiec and Phil Berger. Our state’s more conservative members, our most constitutionally-minded representatives, Rep. Michael Speciale, Rep. Larry Pittman, Rep. George Cleveland, Senator Bill Cook, Senator Norm Sanderson voted against the bill.
So what did the bill say and what did it actually accomplish?
The General Assembly of North Carolina enacts:
SECTION 1. S.L. 2016-3 and S.L. 2016-99 are repealed.
SECTION 2. Chapter 143 of the General Statutes is amended by adding a new Article to read:
“Article 81A. “Preemption of Regulation of Access to Multiple Occupancy Restrooms.”
§ 143-760. Preemption of regulation of access to multiple occupancy restrooms, showers, or changing facilities.
State agencies, boards, offices, departments, institutions, branches of government, including The University of North Carolina and the North Carolina Community College System, and political subdivisions of the State, including local boards of education, are preempted from
regulation of access to multiple occupancy restrooms, showers, or changing facilities, except in accordance with an act of the General Assembly.”
SECTION 3. No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations.
SECTION 4. This act is effective when it becomes law. Section 3 of this act expires on December 1, 2020.
Does HB142 really repeal HB2?
First, let’s recall how HB2 came about. In February 2016, the city of Charlotte passed a law banning discrimination on the basis of sexual orientation or gender identity in public accommodations and other areas. North Carolina voided the Charlotte law with HB2, the Public Facilities Privacy and Security Act, which removed anti-discrimination clauses protecting the LGBT community and mandated that in government buildings people must use the bathroom or changing facility corresponding to the sex on their birth certificates. HB2 became known as the anti-transgender bill.
Roy Cooper ran for governor on the promise that he would repeal HB2 and end the “discrimination” against transgenders. The first repeal effort failed miserably and the ones after that failed as well. It seemed pretty clear that both Republicans and Democrats were both concerned about the safety implications in a policy that allowed access to bathrooms merely based on a person’s choice of gender rather than nature’s design. [Note that only when an individual has taken the most extreme feminization or masculinization steps, gender reassignment surgery, will gender be changed on his or her birth certificate. An individual so committed will enter a bathroom without causing any anxiety to those living according to their biological gender. The issues of most concern are safety and the sense of security and privacy in a bathroom or shower or changing facility].
Although HB124 is termed a “repeal bill,” Gov. Roy Cooper calls it a “compromise bill.” Those in Charlotte and many in the LGBT community say it isn’t a repeal, it isn’t a compromise, and doesn’t do enough to protect transgender rights. In fact, the Charlotte Observer’s editorial board called it “a repeal in name only” and wrote that Gov. Cooper “failed spectacularly” in upholding his campaign promise to reject any deal that left North Carolina’s transgender residents vulnerable to discrimination. “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,” an editorial said. “HB142 literally does not do one thing to protect the LGBT community and locks in HB2’s most basic and offensive provision.”
According to professor Greg Wallace at Campbell Law School in Raleigh, HB124 is more about restoring the status quo, pre-HB2, with one exception: The law forbids government entities from enacting rules on multiple-occupancy bathrooms, showers and changing rooms unless it’s “in accordance with an act of the General Assembly.”
The bill also bans local governments such as Charlotte from enacting or amending an “ordinance regulating private employment practices or regulating public accommodations” until December 1, 2020.
Before HB2, Wallace said, local governments were allowed to institute their own anti-discrimination ordinances. Now, when it comes to public accommodations, if you want to add a class to a list of those protected by the federal government — and that means veterans, the elderly or unmarried adults, in addition to those in the LGBT community — you have to go through Raleigh for the next 3½ years.
Why 2020?? According to state Senate leader, Phil Berger, this will allow time for the federal litigation regarding transgender issues to play out. [The Supreme Court is going to hear a case from Virginia on the subject this year].
With respect to public accommodations (such as bathrooms, changing rooms, etc), are there any current protections for sexual identity; that is, for transgender individuals?
Barring the Charlotte ordinance that sparked the debate, there were no state laws regarding bathroom usage. If a man went into the women’s restroom, or vice versa, Wallace said, he’d likely be asked to leave, and if he refused, he could be arrested for trespassing. Charlotte’s ordinance allowed transgender individuals to use the public bathroom of the gender with which they identify. HB2 banned that. HB142 does not specify what transgender people are to do except to state that there will be no local regulation of public facilities that are inconsistent with an act of the General Assembly.
Similarly, there are currently no federal laws regulating bathroom usage. Federal law prohibits any public accommodation from discriminating on the basis of “race, color, religion, or national origin” but it makes no mention of sexual orientation or gender identity (nor does it address other issues such as age or marital status, for that matter).
Will the repeal bill address the perceived economic hit that our state has taken on account of HB2? Only time will tell. We remember, and take note, that in addition to the NCAA relocating its tournament games, rock stars have canceled tour dates, businesses have nixed projects and other sports leagues — including the NBA and the Atlantic Coast Conference, to which Duke, the University of North Carolina, North Carolina State and Wake Forest belong — have taken their competitions elsewhere.
Maybe the bill is more about repairing the state’s image than effecting an actual repeal of HB2’s mandate. Maybe the economic hit that our state took was more important to remedy than standing firm on the notion that biology is a hard-and-fast guide to things such as bathroom usage, showers, and changing rooms. Nature’s laws are unchanging; it’s the reason we are able to reproduce and perpetuate species, why species can evolve rather than go extinct, why the planet goes through cycles and seasons, and the reason we are able to come up with momentous discoveries like DNA and how energy is stored in atoms. Remember the old warning: “It’s not nice to fool with Mother Nature.”
I look forward to speaking with our legislators to find out exactly the reason for HB142, what exactly is its purpose, and what it actually will do with respect to HB2.