Under the Dome

What changes (and what doesn’t) in HB2 replacement bill

NC Senate debates HB2 replacement bill

Senators Phil Berger (R) and Dan Blue (D) debate a compromise bill to replace the controversial HB2. Both the House and Senate passed the bill, sending it to Governor Roy Cooper Thursday, March 30, 2017.
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Senators Phil Berger (R) and Dan Blue (D) debate a compromise bill to replace the controversial HB2. Both the House and Senate passed the bill, sending it to Governor Roy Cooper Thursday, March 30, 2017.

When lawmakers passed a bill – quickly signed into law by Democratic Gov. Roy Cooper – on Thursday that replaced the state’s controversial law known as House Bill 2, two major changes took effect immediately.

First: the law eliminates the state’s requirement that people in government facilities use the bathroom matching their birth certificate.

North Carolina now rejoins 48 other states that have no explicit law about bathrooms and transgender people. One state, Washington, has gone the other direction and explicitly allowed allowed transgender people to use the bathroom of the gender with which they identify.

Second: HB2 had blocked local ordinances in several cities that related to LGBT issues. With HB2 off the books, those existing laws now function again, according to Norma Houston, a UNC School of Government lecturer and a former General Assembly lawyer.

Carrboro and Raleigh both had policies that anyone wanting to contract with the city government had to have a non-discrimination policy. Raleigh officials declined to comment, but Carrboro Town Attorney Nick Herman said the town’s ordinance is back in action.

Herman said the change in laws “would then allow us to require contractors of the city to abide by non-discrimination ordinances,” as the town had done in the past.

Some cities had ordinances that protected their own workers from anti-LGBT discrimination, and legal experts never fully agreed whether HB2 invalidated those or not. Either way, they most likely are back on the books again now that HB2 is gone.

One ordinance that isn’t restored is the Charlotte bathroom ordinance that prompted lawmakers to pass HB2. The Charlotte City Council repealed that ordinance back in December, and the new law stops it – and every other city and county in the state – from enacting similar ordinances until at least Dec. 1, 2020.

But Cooper contends that starting immediately, cities and counties are free to establish certain kinds of rules for their own employees and contractors that HB2 had limited or thrown into doubt.

“Immediately, this HB2 repeal bill allows local governments to set wage and non-discrimination policies for their employees and city contractors,” Cooper said.

Gov. Roy Cooper hosted a press conference after signing a compromise bill passed by he General Assembly on Thursday that replaces House Bill 2 but restricts anti-discrimination ordinances in cities and counties.

So what did this new law change? And what will stay the same?

Is HB2 repealed?

Yes and no.

The new law did repeal SL 2016-3, or the Public Facilities Privacy and Securities Act, which was more commonly called HB2.

However, the HB2 repeal was just one of its four sections.

The other three sections re-established modified versions of some of the most controversial parts of HB2, including a ban on certain kinds of non-discrimination ordinances.

Senate leader Phil Berger, R-Rockingham, calls the HB2 repeal passed by the Senate on Thursday a compromise that accomplishes a pre-HB2 reset while still protecting North Carolinians.

Bathrooms statewide

Private businesses have always been allowed to set their own bathroom rules, and that doesn’t change.

What does change are requirements for public facilities – like schools, parks, museums and other government buildings.

In those places, transgender people are no longer banned from using the bathroom or changing room of the gender with which they identify. But they aren’t explicitly allowed to, either. There’s simply no law, just like in almost every other state.

As PolitiFact North Carolina explained previously, there are other laws that still can be used against someone who is in a bathroom improperly – including laws about trespassing, indecent exposure, peeping and more.

Local bathroom ordinances

HB2 was first passed in response to the Charlotte ordinance that, among other things, allowed people to use the bathroom matching the gender with which they identify in public accommodations.

Public accommodations are places like restaurants, movie theaters, hotels and the like.

Hundreds of cities and counties across the nation have local ordinances to the same effect. But HB2 stopped Charlotte’s, and it stopped any other North Carolina city or county from creating a similar rule. And the new law would keep that ban in place.

Specifically, the new law says: “No local government in this State may enact or amend an ordinance ... regulating public accommodations.”

While HB2’s ban on those kinds of ordinances was indefinite, the new law will lift that ban on Dec. 1, 2020 – a few weeks after the next gubernatorial election.

Republican Rep. Jeff Collins complains about the fast process and pressure from the NCAA during debate in the N.C. House about a replacement bill for HB2.

Service refusals

With no state law or local ordinances addressing sexual orientation or gender identity discrimination in public accommodations, establishments like hotels and restaurants would still legally be able to discriminate against LGBT people – or any other class of people that state law doesn’t explicitly protect, like veterans.

Again, that ban on local ordinances would be lifted in about four years, instead of remaining indefinitely like it is now.

Employment protections

Just like with bathrooms, nothing changes here immediately.

The repeal bill says: “No local government in this State may enact or amend an ordinance regulating private employment practices.”

That includes rules about employment discrimination protections. And since the state has no protections for people fired based on their sexual orientation or identity, that means people could still legally be fired for being gay or transgender.

However, the ban on local nondiscrimination ordinances would be lifted after Dec. 1, 2020, instead of being on the books indefinitely like under HB2.

Chris Sgro, Equality North Carolina director, says the HB2 replacement bill is terrible legislation that doubles down on discrimination.

Minimum wage and leave

HB2 clearly spelled out the types of local ordinances that it banned related to employment rules, including those related to issues like the minimum wage, hours, benefits and leave policies.

The replacement bill appears to keep the same ban through 2020, although its language is much less specific. It doesn’t give any examples and simply says: “No local government in this State may enact or amend an ordinance regulating private employment practices.”

RFRA

Thursday’s law did not introduce a controversial RFRA policy into North Carolina.

RFRA, which stands for Religious Freedom Restoration Act, was seen as allowing anti-LGBT discrimination.

Last week there was talk that the new repeal proposal would replace HB2 with language similar to the controversial RFRA law that Indiana passed (and later scaled back) under former Republican Gov. Mike Pence. None of that language was in the law passed Thursday.

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