The fight over North Carolina’s House Bill 2 – the law that notoriously stamps the state’s seal of approval on discrimination against lesbian, gay and transgender folks – has devolved into a form of trench warfare.
Republican legislators and social conservatives who support the law remain dug in against an outright repeal. They can’t afford to admit they made a gross misjudgment when, a year ago, they rushed the bill through without heed to the economic and ethical consequences.
Democratic Gov. Roy Cooper and his allies among LGBT and civil rights advocates are just as dug in with their insistence that the law’s sponsors take responsibility for cleaning up the mess they created. They’re willing to negotiate the terms of repeal, but not to concede that HB 2 ever has served a valid purpose or that the discrimination it codifies should be sustained.
The political stakes are huge and the risk of casualties is high. Just ask Pat McCrory, who likely would be serving his second term as governor if his fellow Republicans in the General Assembly hadn’t left him holding the bag as HB 2’s most visible defender.
After Cooper’s victory over McCrory in November, the governor-elect tried to broker a deal that would have wiped HB 2 off the books. He convinced the Charlotte City Council to repeal its ordinance allowing transgender people to use restrooms in public facilities matching their gender identity. HB 2 had been promoted as a way to nullify that ordinance, although the bill was even more intrusive and objectionable.
Charlotte’s about-face was supposed to trigger repeal of the state law during a special legislative session in December.
But Republican chiefs in the House and Senate couldn’t round up enough votes in their party caucuses, where anti-LGBT currents run deep, for an outright repeal, and they didn’t want to end up letting the Democrats boast that they’d made the repeal happen.
Democrats, for their part, refused to go along with a Republican-backed bill that was touted as a repeal but that left key HB 2 provisions temporarily intact.
Out came the entrenching tools, the barbed wire and the rhetorical machine guns.
Once the legislature convened in late January for its 2017 session, the pattern was set. HB 2 opponents hammered away at the need for repeal, citing not only the human rights issues involved but also the economic losses from tournaments, concerts and corporate investments cancelled in protest.
Defenders stuck to their absurd story that the law was essential to keep sex offenders from preying on women and girls in public restrooms and locker rooms. They glossed over the law’s lack of enforcement mechanisms and the fact that the kinds of misbehavior they claimed to be so worried about, if they ever occurred, were already illegal.
Every day, it seems, has brought another press conference full of finger-pointing and blame-storming. Republicans have kept floating bills they’ve tried to depict as versions of repeal, without purging the modes of discrimination that make HB 2 so toxic. Cooper and his allies don’t want to accept a “compromise” that could let the GOP salvage a victory and sell vulnerable folks down the river.
All the while, the NCAA has ratcheted up the pressure for repeal with warnings that North Carolina could lose hosting privileges for up to six years of collegiate sports tournaments. No North Carolina politician with enough sense to come in out of the rain wants to be tagged with responsibility for losing those popular and economically significant events.
With the NCAA brandishing a deadline, desperate legislators have tried to find a formula that would allow the state to back away from the HB 2 precipice. Any such formula will need bipartisan support to succeed. But so far, true consensus has been a mirage.
Cooper has backed House Bill 107, which would combine repeal with a toughening of penalties for sex-related crimes committed in restrooms and other such facilities. It also would require a month’s notice before a local government could enact anti-discrimination measures that go beyond those in state law. It’s a reasonable approach, but we shouldn’t hold our breath waiting for Republican legislative leaders to bring it to a vote.
Now comes House Bill 186, with two Republicans and two Democrats listed as primary sponsors. It backs away from a few of HB 2’s more onerous features. But not by much.
For example, cities wouldn’t be allowed to regulate access to restrooms unless they owned the building. So a transgender person in a movie theater, for example, still could not use a restroom designated for people of his or her gender.
That would have the effect of forcing women who had long since transitioned from the gender they were assigned at birth to use the men’s room. And vice versa. This addresses a non-existent problem by setting up situations guaranteed to freak everyone out.
The bill also would expand the categories of people against whom it is illegal to discriminate, but discrimination on the basis of sexual orientation or gender identity would not be covered. That fails to correct what is perhaps HB 2’s central flaw, by which local governments are barred from extending such protections and the state refuses to do so.
Here’s HB 186’s kicker, adding insult to injury: If a city decided to enlarge the scope of its anti-discrimination code, its new ordinance could be put on the ballot for a referendum. Such a popular vote on a controversial ordinance could be a worthwhile check on a city council; Raleigh and Asheville are among the municipalities that allow for such a step.
The crucial difference is how hard, or how easy, it is to force a referendum. In Raleigh, for example, opponents of an ordinance now must collect signatures from voters numbering at least 10 percent of those registered for the last election. The News & Observer of Raleigh pegged that at about 30,000 signatures.
Under HB 186, by contrast, a referendum petition would succeed if backers gathered signatures from at least 10 percent of the number of people who voted in the last municipal election, when turnouts tend to be low. The N&O calculated that, based on turnout in the 2015 Raleigh city elections, only 3,600 signatures would be needed to challenge expanded anti-discrimination rules. Given the hullabaloo such a move by the City Council likely would generate, picking up 3,600 signatures sounds like something that could done over a weekend.
That doesn’t mean referendum voters necessarily would block such an ordinance. Raleigh, for instance, is a pretty tolerant place.
But Cooper was on the mark when he criticized any move that in essence would put some people’s civil rights up to a popular vote. Almost by definition, that’s an invitation to tyranny of the majority, when the well-being of a minority – perhaps an unpopular minority in some areas – is placed at the majority’s mercy. Our laws should instead be their shield from repression.
The Council of Churches has opposed HB 2 from the get-go as an unnecessary and cruel indulgence in anti-LGBT demagoguery. The law attempted to fix something that wasn’t broken and in the process did enormous damage to North Carolina’s reputation besides treating lesbians, gays and transgender people like dirt.
Any truce between the two sides in the HB 2 struggle probably will have to entail compromises by each. But no truce will be acceptable if the rights of some of our neighbors – people who just want and deserve to be treated as equal before the law – are sacrificed. Economic concerns, as serious as they are, can’t be allowed to trample that basic principle.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.