North Carolina’s HB142: Repeal? Compromise? What does it all mean?
RALEIGH, N.C. — As House Bill 142 stands poised to become North Carolina law, questions persist, namely from the LGBT community, which scoffs at the notion that the legislation represents a compromise or a repeal of House Bill 2, aka the state’s “bathroom bill.”
To be sure, it’s about more than bathroom access. Employment issues and the autonomy of local governments are other important components in the debate.
Exactly what is being repealed? Who agreed to the compromise? And what, if anything, does it do to ensure that North Carolina’s gay and transgender residents face no discrimination in their daily lives?
Let’s see if we can answer some of your questions:
How did this begin?
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 House Bill 2, 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.
Is House Bill 142 a repeal?
Depends who you ask. Gov. Roy Cooper has called it a compromise, but many in the LGBT community say it doesn’t do enough.
The Charlotte Observer’s editorial board called it a repeal only in name and wrote that Cooper “failed spectacularly” in upholding his campaign promise to reject any deal that left North Carolina 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. “House Bill 142 literally does not do one thing to protect the LGBT community and locks in HB2’s most basic and offensive provision.”
Then what’s the purpose?
According to professor Greg Wallace at Campbell Law School in Raleigh, it’s more about restoring the status quo, pre-HB 2, 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.”
It 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 HB 2, 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.
What’s an ‘act of the General Assembly’?
This is one of the curiosities of the law, Wallace said. If HB 142 succeeds, there will be no governing act.
“There’s crickets from the General Assembly apparently because they just repealed HB2,” he said.
This will allow time for the federal litigation regarding transgender issues to play out, state Senate leader Phil Berger has said.
What was the status quo before House Bill 2?
Barring the Charlotte ordinance that sparked the debate, there were no 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.
Essentially, HB 142 leaves the primary question posed by the Charlotte law unanswered, according to The Charlotte Observer’s editorial board.
“The legislation dodges the whole bathroom question. Charlotte’s ordinance allowed transgender individuals to use the public bathroom of the gender with which they identify. HB2 banned that. The new law does not specify what transgender people are to do,” it said.
Does federal law provide LGBT protections?
No. Federal law prohibits any public accommodation from discriminating on the basis of “race, color, religion, or national origin.” It makes no mention of sexual orientation or gender identity (nor does it address other issues such as age or marital status).
What’s a public accommodation?
Almost anything that isn’t a religious organization or private club. The designation includes hotels, restaurants and other places of business.
Will businesses be able to discriminate against LGBT patrons?
“There is no requirement that would prohibit the baker, florist or photographer from saying, ‘I have an objection to performing these (same-sex marriage) services,’ ” Wallace said, explaining that that was the status quo before HB2. “It’s not illegal to discriminate on that basis.”
Is this really about basketball?
“As a Dukie losing to South Carolina and giving them homecourt advantage, we certainly felt it,” said Pope McCorkle, associate professor at Duke University’s Sanford School of Public Policy.
He’s referring to South Carolina upsetting Duke this month after the NCAA moved the tournament game from Greensboro, North Carolina, to Greenville, South Carolina, in response to the passage of HB2.
The NCAA set a Thursday deadline for North Carolina to repeal HB2 or lose hosting rights for all NCAA tournaments through 2022. But while basketball is an important symbol in the fight, McCorkle said, there were other factors.
What began, for many, as a moral policy argument has now morphed into an economic development argument, McCorkle said.
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.
So, the state’s image took a hit?
That’s part of it, McCorkle said. Once Tar Heels saw the economic impact of HB2 and realized it put North Carolina out of step with federal and most state laws, “people just saw this as unnecessary, unforced error,” the former Democratic consultant said.
North Carolina’s bill also left other Southern states — such as South Carolina, which rejected a bathroom bill, and Georgia, whose governor vetoed a religious freedom bill, last year — looking “more progressive, reasonable, sensible,” he said.
Does the repeal fix the image issue?
“North Carolina returns to its status with other states,” McCorkle said. “They want to paint the federal government as the over-reacher on traditional public morality.”
What about the employment clause?
In the absence of a statewide discrimination law — which was the status quo before HB2 — the federal law will hold sway, Wallace said. The aforementioned classes will remain protected through the Equal Employment Opportunity Commission and courts, and discrimination based on sex is forbidden via Title VII of the Civil Rights Act of 1964.
“You let the federal law do the heavy lifting there,” the professor said.
Then how will North Carolina differ from most states?
It won’t. Nineteen states protect both public and private employees on the basis of sexual orientation and gender identity, according to the American Civil Liberties Union. Another three protect employees based on sexual orientation.
North Carolina will also be in line with federal regulations. Though there have been bills proposing adding gender identity and sexual orientation to protected classes, Congress has failed to pass any of them, Wallace said.
“It’s interesting North Carolina is being singled out (by those opposing HB142) here because the federal law is the same, as are a majority of states,” he said.