As you probably have heard, in a flurry of activity yesterday, the North Carolina legislature repealed and replaced its omnibus LGBT-hate law, HB 2. The state was clearly moved to act by an NCAA deadline (repeal by Thursday, or no championships until 22) and an AP report earlier in the week that said the law would cost the state $3.7 billion over ten years. Almost no one is happy with the new measure, particularly LGBTQ advocates. The replacement law indeed eliminates the restriction on trans bathroom access, though it allows harassment of trans people under “indecency” laws. It does not, however, as many of its advocates (who are being parroted by national media like NPR as I type this) claim “reset” the state to its pre-HB 2 status. The replacement bill also locks into place an explicit refusal to offer employment and other civil rights protections to LGBTQ individuals in state law, and it forbids other governmental entities in the state (cities, schools, universities) from going further either on bathroom access or other employment laws. Two clauses of the very short bill accomplish this. Section 2 says:
"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, which is staggeringly broad if you read it literally (the literal read was apparently not intended by those who wrote it) says that “No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations.” At the very least, cities like Charlotte are prohibited from enacting LGBTQ protective ordinances like the one HB 2 struck down. Hence we have not returned to the status quo. The law does sunset in 2020, but of course the legislature would be free to push that into the indefinite future.
I don’t have a lot to say here on the bill itself, because it clearly does not put the state where it ought to be. Refusing to protect gender non-conforming individuals from discrimination is a disgrace. It’s also bad policy to ban municipalities from raising the minimum wage (an aspect of all this that was explicitly in HB 2 and which remains under section 3, despite it getting almost no media attention), though I won’t make that case here. It might or might not even bring the NCAA back. I also am still not sure that it would survive a Romer-based challenge, since the clear intent is to freeze-out employment discrimination protection for LGBTQ people.
I do want to note one thing that’s not getting a lot of press. In signing the bill, Democratic Governor Cooper said that “In a perfect world, with a good General Assembly, we would have repealed HB2 fully today, and added full statewide protections for L.G.B.T. North Carolinians.” In this he is absolutely right. The NC legislature has been on a far right crusade for years and is desperate to hang on to political power as a way to continue that process. They do that through gerrymandering, voter suppression, and efforts to control local election boards. As I noted in the linked post above, more people voted Democrat than Republican in North Carolina in both 2012 and 2014. And yet somehow the Republicans have veto-proof majorities in both houses of the legislature. That outcome ought to be unacceptable because it says quite clearly that the legislature lacks democratic legitimacy. A lot of December’s attempt to make election boards Republican has been struck down. There is litigation pending, including a 4th Circuit decision that said the most recent legislative maps target minority voters with “surgical precision,” and a pending order to have statewide elections in 2017 under new maps (the state has appealed this to the Supreme Court). If the Courts get around to striking down all of this, things might get better. But in many respects, the HB 2 debacle is also a symptom of a deeper failure of governance and democratic legitimacy.