Berger and Moore finally come out of their policy closet on HB2

Berger and Moore finally come out of their policy closet on HB2

- in Weekly Briefing

At long last, legislative leaders admit state’s discrimination law is not about bathrooms

For more than a year now, North Carolina conservative lawmakers and advocates have been repeating the absurd and offensive mantra that opponents of HB2 – the state’s infamous LGBTQ discrimination law – want to force women and girls to make use of showers and restrooms alongside men disguised as women.

Senate President Pro Tem Phil Berger is one of the most visible and frequent purveyors of this particular falsehood – at times even accusing Governor Cooper of being complicit in the supposed scheme. Here’s Berger a couple of months back during a TV interview:

But there’s also just a real question out there of whether or not it’s appropriate for men to share restrooms and shower facilities with women.”

Of course, Berger is not the only public figure to promote this lie. Here’s House Speaker Tim Moore last week in an interview with Raleigh’s News & Observer:

If there’s any entity out there that’s going to tell North Carolina that we have to let men in women’s showers, that’s just too bad, we’re not going to change that,” he said.

The compassionate Christians at the North Carolina Values Coalition and North Carolina Family Policy Council (which deny even the existence of transgender people) are also only too happy to communicate this tale to their misguided followers. The misnamed Values Coalition has gone so far as to promote an ad featuring the photo of a young girl with a backpack walking into a dark and dangerous looking bathroom facility with the title “Don’t cave to political correctness.”

Meanwhile, this is from an article describing the reaction of a North Carolina Family Policy Council spokesperson to proposed HB2 repeal legislation in the General Assembly last December:

But NC Family Policy Council President John Rustin said that repeal would ‘represent a significant betrayal of the citizens of North Carolina who deeply care about the privacy and safety of women and children in our state.’”

And then there’s commentator Dan Way of the “libertarian” John Locke Foundation. Way has repeatedly tweeted over the past several months about the supposed intent of equality supporters. Here he was just last week criticizing UNC basketball coach Roy Williams’ opposition to the law:

Roy Williams: Basketball home court advantage tops keeping men out of girls showers (sic).”

At times, it’s been hard to decide what’s more maddening: the dishonesty of the accusation or the way supposedly serious journalists have continued to blithely report it.

The truth finally comes out

Happily, there has been a major breakthrough on this front in recent days. After hiding behind the “men in women’s bathrooms” excuse for 12 long months, conservative legislative leaders have finally come clean and admitted what they are really after. The admission comes as a result of the determined and relentless advocacy and negotiating efforts of Governor Cooper and his team, who have gradually worked Berger and Moore into a corner of the political chess board.

As it turns out, what Berger, Moore and crew really want is not “bathroom safety” but a guarantee that no North Carolina governing body – state or local – will pass a law barring discrimination against LGBTQ North Carolinians.

This from an article last Thursday on in which Speaker Moore held forth on his latest discussions with Berger:

While lawmakers search for something that is more palatable to the business community, Moore pledged that the final product would still restrict the use of restrooms by transgender people and would still block local governments from passing any nondiscrimination ordinances that go beyond federal law, meaning they wouldn’t include protections for the LGBT community. (Emphasis supplied.)

He said his ultimate goal is to align North Carolina’s laws with those of neighboring states while still keeping requirements that men and women use the bathroom and locker room corresponding to their gender on the books.

I think a lot of people don’t want North Carolina being the poster child on some of these social issues either way,’ he said.”

Did you catch that part about not going beyond federal law? What Moore is saying there is that he and Berger will not agree to allow a scenario in which any North Carolina locality – even a progressive city like Carrboro, Chapel Hill, Asheville, Raleigh or Charlotte in which the citizenry wants it – can pass a rule or ordinance that forbids discrimination against LGBT people.

In other words, Berger and Moore want businesses to remain free to fire people because they are gay.

This is because, while federal law bests state law in many areas and will probably (hopefully) be interpreted at some point down the road to bar discrimination against people because of sexual orientation and/or gender identity, it doesn’t do so yet. Right now, according to the latest court interpretations of federal law and U.S. Constitution, LGBTQ Americans have marriage equality, but they can also be fired or denied service in a restaurant because of who they are. Unlike people of color who won legal (if not always real world) protection when it comes to such basic civil rights a half-century ago, LGBTQ people remain utterly unprotected. A lesbian in America is free to marry her partner in any state in the union, but under federal law, it’s also okay for her boss to fire her for doing so.

For millions and millions of Americans, this lack of a federal protection has been remedied to a great extent at the state and local level. Dozens of states (including not-so-liberal bastions like Utah and Iowa) and hundreds of municipalities like Columbia, South Carolina have passed laws and ordinances barring such discrimination.

Unfortunately, for vast swaths of the country – North Carolina included – there are no such protections. A year ago, the city of Charlotte was beginning to change this situation and helping to drag our state into the 21st Century, but HB2 stopped this effort in its tracks and Moore and Berger’s latest proposal would only double down on this regressive situation.

So, what should Cooper do?

The new Berger/Moore tack – to propose a “repeal” of HB2 that prevents any new nondiscrimination ordinances “that go further than federal law” and that perhaps guarantees the “religious freedom” of business owners who want to discriminate – is designed, of course, to put Governor Cooper in a bind. The objective is to produce a bill that sounds moderate and reasonable but that will, in fact, do nothing to really change the current situation. Their hope is that they can advance the bill and force Cooper into the awkward position of having to oppose (and maybe even veto) it, all while locking North Carolina in as a state in which LGBTQ equality remains beyond reach.

And, truth be told, from a purely cynical and Machiavellian point of view, it’s not a bad strategy. The public, as well as the business community, are clearly tired of hearing about HB2. Many people long for a solution – any solution – that will bring back their concerts and big games and remove the stain from the state’s “brand.” There probably isn’t a day that goes by in which Cooper isn’t reminded by some powerful corporate entity of the need to get something done on this front. As the Associated Press reported yesterday, the economic costs to the state are now expected to approach $4 billion over the next several years.

Happily, however, Cooper has thus far shown himself to be made of much sterner stuff than Berger, Moore and company undoubtedly wish was the case. While it would be understandable if he sometimes feels a desire to simply cut and run, he thus far gives no indication of backing down from his repeatedly stated objective of passing a genuine repeal that in no way give license to discrimination.

Given that Berger and Moore have finally uncloseted themselves and owned up to their true objectives, the Governor’s only option at this point is to stick to his principles. What’s more, one senses that if he takes his case to the people and makes plain why he can’t support any plan that endorses firing people because they are gay, North Carolinians will understand and agree.