A striking thing about the repeal of the law known as House Bill 2, or HB2, was how much it mirrored the law’s adoption a year ago. There was the same intense pressure of a deadline, passionate debate in the General Assembly, a bill passed and signed by the governor the same day and a reaction that included national headlines and protests.
It was like an exercise in legislative occult, the lifting of a spell by reversing the steps that cast it. Whether it worked or whether it was right are both being debated. LGBT advocates say trading House Bill 2 for House Bill 142 didn’t reverse anything. Instead they say it accepted, and in a sense condoned, continuing discrimination against transgender people.
Some liberals also objected to the compromise for political reasons. They would prefer to see the General Assembly’s Republican majority continue to suffer the consequences of passing HB2 and pay more dearly for it in the next election. That is an appealing approach and it delivers a kind of tough justice.
The passage of HB2 was an outrage, but it was part of long line of outrages by this legislature involving taxes, voting rights and education funding. HB2 was the one overreach they couldn’t hide behind talk of creating a better business climate or fostering jobs or deflating a bloated education edifice. HB2 was one instance where the Republicans’ practice of acting without asking, making law of whatever they want and steamrolling opposition finally burned them. The law’s cost in lost business exploded the Republicans’ claims that by giving tax breaks to the rich and starving social services and education they were making the state more attractive for businesses.
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Democratic Gov. Roy Cooper and minority leaders in the state House and Senate no doubt were tempted to let the arrogant and callous Republican leadership stew in the distress of their own making. But Cooper and the Democratic leaders decided that letting the Republicans squirm wasn’t worth further economic damage to the state as the NCAA’s deadline for HB2’s repeal arrived. The NCAA said a failure to repeal HB2 by Thursday would mean no NCAA championships in North Carolina through 2022. That’s not such a big deal in itself, but the wave of national publicity that would accompany the ban would prompt more businesses, conventions and entertainers to stay away. And if the NCAA deadline were allowed to pass without action, it’s unlikely the issue would again come into sharp enough focus to force the Republicans to compromise.
This reasoning has been dismissed by both liberal opponents of the law and its conservative supporters as a crass sacrifice of principle for mammon. It’s hard to say it isn’t. Money and jobs – and basketball championships – weighed heavily in the decision. The purists – whether advocates for transgender rights or self-styled protectors of women and girls – weren’t going to be happy with anything short of total surrender or total resistance.
But in assessing the value and the virtue of Cooper’s compromise it’s important to remember what HB2 was both in word and in practice. It was not so much a law as a statement. It had no enforcement mechanism. It defined no penalties for violation of its edict that people use the bathroom in government buildings that corresponds to the sex on their birth certificate. Its main direct effect was to nullify local ordinances banning discrimination based on sexual orientation. That is an important issue, but the battleground there should be in fighting for a state anti-discrimination standard that includes sexual orientation and gender identification. Town-by-town protections are progress, but far from the goal.
HB2 was a statement from conservatives that they don’t acknowledge the legitimacy of transgender people. It was a-boy-is-a-boy and a-girl-is-a-girl manifesto. They didn’t care who it insulted or who it endangered. Now it’s repealed. The statement is erased from state law. And that’s a big improvement.
Despite that gain, LGBT advocates are accusing Cooper of betraying them. Their anger is an indulgence that ignores the risks he took on their behalf and the service he is trying to render to the state as a whole.
Cooper is a legislative veteran and a former state attorney general who knows the difference between making speeches and making laws. He is taking the way that will get results through several steps. No 1, get HB2 off the books. No. 2, (assuming the NCAA is satisfied by the repeal) avoid another national boycott and another blast of negative publicity. No. 3, end the boycotts of North Carolina. No. 4, use the courts and campaigning to crack the gerrymandered General Assembly districts and elect lawmakers who will support a state law that forbids discrimination based on sexual orientation and gender identity.
That agenda won’t fit on a bumper sticker or convert to a chant, but given the political reality of the Republican majorities that gave us HB2, it was the only path for getting beyond it.
Barnett: 919-829-4512, or email@example.com