When the legislature’s top leaders met privately with Charlotte Mayor Jennifer Roberts on Thursday, both sides discussed what neither has been willing to suggest publicly:
What if we each gave a little to end the crisis over House Bill 2?
Under one proposal, the City Council would rescind its LGBT nondiscrimination ordinance as a good faith gesture. In exchange, the state would make changes to HB2.
Ultimately, they did not agree to anything except to keep talking, according to sources on both sides. And the two sides remain far apart.
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“Other than the dialogue … I’m afraid we have more work to do,” said Sen. Joel Ford, a Charlotte Democrat who has talked with Senate Republican leaders. “The longer this drags out the worse it gets.”
The Republican-controlled General Assembly passed HB2 in March in response to Charlotte’s extension of its anti-discrimination ordinance.
That ordinance would have allowed transgender people to use the bathroom of the gender with which they identify and would have extended anti-discrimination protections to LGBT people. HB2 pre-empted that ordinance, requiring people to use bathrooms in government buildings that match what’s on their birth certificate.
Since HB2 was passed March 23, the law has been criticized by editorial writers, entertainers and corporations such as PayPal, which canceled a planned expansion with 400 jobs in Charlotte. At least 20 conventions and events have dropped plans to come to North Carolina.
The negotiations reflect the growing concern in the state – particularly among business leaders – over the fallout from HB2. City leaders also have faced increased pressure to change their tone toward Raleigh lawmakers, according to a review of emails and text messages obtained by the Observer under an N.C. Public Records Law request.
The meeting on Thursday came a day after the U.S. Justice Department warned the governor that HB2 violated federal law. The federal government set a Monday deadline for the state to say whether it will enforce HB2.
During the meeting, Roberts, Senate leader Phil Berger and House Speaker Tim Moore discussed rescinding Charlotte’s ordinance. They also talked about somehow changing HB2, but it’s unclear what would be different in the law, according to sources familiar with the discussion. The sources declined to be identified, citing the sensitivity of the negotiations.
Repealing the Charlotte ordinance would be largely symbolic since HB2 superseded it. Charlotte would remain unusual among the nation’s 20 largest cities. Only four – Houston, Jacksonville, Memphis, and Charlotte – have no legal protection for gay, lesbian and transgender people.
In South Carolina, Columbia, Charleston and Myrtle Beach have such LGBT protections.
Roberts and the Republican leaders say they’ll meet again but didn’t give a specific date.
Meanwhile, interviews with City Council members suggest a compromise is a long way off.
“At this point, I don’t think there are enough votes,” said council member Greg Phipps, a Democrat who voted against the ordinance that passed 7-4.
Publicly, Roberts made no mention of compromise. In a statement issued Friday, she suggested that the federal government’s letter has strengthened the city’s hand.
“We cannot write discrimination back into our laws,” Roberts said. “The General Assembly and Governor must comply with the Department of Justice and repeal HB2 immediately.”
There are several options that the two sides could take to reach a compromise, according to interviews with city and state leaders:
▪ The General Assembly could seek to satisfy the Justice Department but keep most of HB2 intact.
The Justice Department is focused on HB2’s mandate that people use the bathroom that matches their birth certificate in government-owned buildings, such as airports, schools and libraries.
The General Assembly could repeal the part of HB2 that addresses who can and can’t use a bathroom.
Under this scenario, lawmakers could keep intact the part of HB2 that prohibits N.C. cities and towns from extending legal protections for gays, lesbian and transgender individuals in places of public accommodation like stores and restaurants.
▪ The state could give cities and towns the power to include LGBT people in their nondiscrimination protections. But legislators could include language that would prohibit local ordinances governing the use of bathrooms.
Under this scenario, someone who is transgender couldn’t be denied service at a business. But the owner could choose to prohibit transgender customers from using the bathroom of their gender identity.
Cathryn Oakley, senior legislative council for the Human Rights Campaign, said that would be an improvement over HB2. But she said the influential gay rights group couldn’t support it.
“It’s not writing (discrimination) into law, but it’s putting up a barrier,” she said. “It’s a particular problem if it targets transgender people.”
▪ City officials, on the other hand, have informally proposed something else.
They have suggested that legislators allow Charlotte’s entire ordinance to stand, including the bathroom provision.
Meanwhile, the General Assembly would enact stiffer penalties for any crimes that occur in a restroom, such as assault or indecent exposure. Gov. Pat McCrory and legislators have said a goal of HB2 is to protect women and girls from predators in bathrooms. Increasing penalties for such offenses could help address such concerns.
As HB2 is written now, private businesses are allowed to make their own restroom rules. Target, for instance, has said transgender individuals can use the restroom that corresponds with their gender identity.
Such penalties could allow the legislature to say they are protecting all residents, even in businesses that allow people born as male to use women’s restrooms.
▪ The General Assembly could do nothing. McCrory and the legislature have been criticized over HB2 for more than a month and haven’t backed down. The state could challenge the Obama administration in court.
Charlotte changes tone
In the six weeks since HB2 was passed, Charlotte has tried multiple approaches in dealing with Raleigh.
Roberts at first took a hard line against the bill, and was then more conciliatory. She recently returned to a harder line, pushing for a full repeal.
A review of city emails and text messages shows Roberts and City Manager Ron Carlee were resolute in their opposition from the beginning.
When the bill was signed, Carlee told Roberts by text that it was a “new low for N.C.”
In an interview on MSNBC, Roberts said she was “appalled” by HB2, and that someone might see a sign in front of a business “that says no gays welcome here, and that will be perfectly legal.”
Soon after, city leaders began meeting with the Charlotte Regional Visitors Authority, the Charlotte Regional Partnership and the Charlotte Chamber to brainstorm how to handle HB2.
The Chamber lobbied hard for the city to be less combative, according to people familiar with the meetings. Ron Kimble, the deputy city manager, agreed.
“The goal in the last few days has been for everyone to deescalate so that real dialogue can begin,” Kimble wrote in an April 8 email to one local official concerned about HB2.
On April 12, McCrory issued an executive order about HB2 that extended protections to state workers based on gender identity and sexual orientation, but left HB2 intact.
Roberts sent a tweet that day that followed Kimble’s and the Chamber’s plea for deescalation:
“Pleased to see movement from @GovOfficeNC. Historic to include LGBT protections for state employees. Look forward to more dialogue.”
But the more conciliatory tone did not produce a breakthrough.
On April 26, Roberts called for a full repeal of HB2. On Friday, she said Charlotte “cannot go backwards” and called for a full repeal.
Whether the City Council would repeal its ordinance likely depends on what the state would offer.
“We have no ordinance to repeal,” said council member Vi Lyles, a Democrat. “In effect, it has already been rescinded by state law.”
For the council to vote on a symbolic repeal, either Roberts or City Manager Carlee could place the repeal on the agenda. A majority of council members could also force the vote on the issue, though they would have to wait until the next meeting unless they had the unanimous support of council.
Democrat Patsy Kinsey, who voted for the ordinance, said she would have to see a formal proposal from the state.
“The ball is in their court, based on what the Department of Justice has said,” Kinsey said. “I try to be a reasonable and open person, but I don’t know.”