Local governments wouldn’t be allowed to pass nondiscrimination ordinances that specifically protect LGBT people under a draft proposal for replacement of House Bill 2.
The restriction on local nondiscrimination ordinances is part of a draft bill posted Friday by WBTV in Charlotte, which reports that the proposal was considered in the House Republican caucus on Thursday morning.
The bill largely matches new legislation that House Speaker Tim Moore described to reporters Thursday afternoon. A spokesman for the Republican speaker did not respond to an inquiry about the draft bill Friday.
Moore said Thursday that he and Senate leader Phil Berger are working on legislation to change HB2 but won’t be “backing off of the privacy issues” that prompted the law. He said the new bill would allow for “limited” local nondiscrimination ordinances.
The new proposal signals a shift in how legislative leaders are approaching changes to HB2. Until this week, Republicans were negotiating with Democrats and Gov. Roy Cooper to find a repeal compromise that would win support from a bipartisan majority of House lawmakers.
Rep. Chuck McGrady, a Hendersonville Republican who had led those negotiations, said Friday that the effort is “dead” and that he’s no longer involved in HB2 talks.
HB2 bans cities, towns and counties from passing nondiscrimination ordinances. Under the draft bill posted Friday, local governments could enact ordinances but would be allowed to use only the “protected classifications established in federal law.” Those classifications don’t explicitly include sexual orientation or gender identity.
House Democratic Leader Darren Jackson said he expects nearly all House Democrats would vote against the proposal. “It’s really nothing more than a restatement of House Bill 2,” he said. “I would hope that the business community and the NCAA and the ACC would stand up and speak out – recognizing that this is not a fix.”
Moore stressed Thursday that he wants to make sure the GOP caucus has “consensus” before filing a bill. He says Republicans want to “make sure there’s total pre-emption of those issues” involving bathroom access that prompted HB2.
The speaker indicated that he believes much of the backlash against North Carolina is because HB2 has an image problem. “I think North Carolina has been mistreated, has been characterized,” he said. “We’re not that different than other states.”
Moore says Republicans are now looking at different ways to address the same issues involved in HB2.
The draft bill would repeal HB2 but would ban state agencies, universities and school boards from setting bathroom access policies. It also includes a section labeled “protect the rights of conscience,” which would allow lawsuits against the state for anyone who believes their constitutional rights “are burdened or likely to be burdened” by government action.
Moore described that provision Thursday but argued that it’s not similar to Indiana’s controversial Religious Freedom Restoration Act. Jackson disagrees, saying the “conscience protection” language “still seems like RFRA to me.”
Jackson also takes issue with a “severability” clause in the draft bill that means any court that strikes down part of the legislation would strike down the entire bill – including the section repealing HB2. That means a lawsuit challenging the legislation could result in the restoration of HB2.
The efforts to change HB2 come as the NCAA on Thursday gave North Carolina a deadline of next week to change the law or be blocked from hosting sports championships through 2022.
Moore said Thursday that he’s been talking with business leaders and others, and that “if I didn’t have pretty good assurances” the potential HB2 changes would end boycotts, “I wouldn’t be wasting my time.”
Jackson said he doesn’t think the draft legislation addresses the NCAA’s concerns about what the organization calls “the cumulative impact HB2 had on local communities’ ability to assure a safe, healthy, discrimination-free atmosphere.”
Jackson argues that Republicans now want to pass a bill that Cooper will likely veto. “This is all an attempt to try and blame the governor” for inaction on HB2, he said. “They’ll make it as bad as they have to make it to get the Republican votes.”
The two parties struck a deal earlier this week that initially appeared to have the 60 votes necessary to pass the House. As of Monday, Jackson had about 40 Democrats willing to back a modified version of McGrady’s House Bill 186, and about 20 Republicans were also willing, according to Jackson and McGrady.
Some of those Republicans soon became concerned about changes to the bill designed to garner Democratic support, and by Thursday the proposal had less than 60 votes.
While the original McGrady bill would have allowed opponents of a local nondiscrimination ordinance to petition for a voter referendum, the compromise version would have ended that referendum option in January 2019, according to a copy obtained by The News & Observer. The compromise also dropped a provision that would have allowed cities to set bathroom policies for facilities they own or operate.
Moore was concerned that the compromise wouldn’t have enough support in the Senate. “I was just worried about getting votes in the House,” McGrady said. “If you’re going to vote, you’ve got to have the House and Senate on board.”
“The Democratic votes came on (for a compromise), albeit way late, and now the Republican votes are gone,” McGrady said. “I’m glad that leadership is still working on a solution, but I’m not currently engaged.”