State Politics

Understanding the HB2 repeal law – what it does and doesn’t do

The legislation that repeals House Bill 2 attempts to settle a running, year-long argument in a mere 19 lines of text.

House Bill 142 does three things:

▪ Repeals HB2. The so-called “bathroom bill” was enacted by legislators on March 23, 2016, to nullify a Charlotte ordinance that extended civil rights protections to LGBTQ people. The most controversial feature of the Charlotte ordinance: allowing transgender people to use the public restrooms of the gender with which they identify

The repeal returns Charlotte’s policies to where they were before its ordinance passed, but prevents the city from passing a similar bathroom ordinance in the future.

▪ Adds new language – and restrictions – about bathrooms. While it removes the birth certificate requirement, the bill says state and local governments are “preempted from regulation of access to multiple occupancy restrooms, showers, or changing facilities, except in accordance with an act of the General Assembly.”

HB2 allowed local school boards to provide single-occupancy restrooms or changing rooms under special circumstances. But it restricted transgender students from using multiple-occupant restrooms other than for their biological sex.

▪ Blocks local governments from regulating public accommodations or private employment practices before Dec. 1, 2020.

Why this last-minute rush to repeal?

Blame, or credit, March Madness. The NCAA gave the state a midday Thursday deadline to either repeal the controversial law or lose out on hosting the league’s championship events through 2022. Though the Carolina Tar Heels are again in the Final Four this year, North Carolina hoop fans used to enjoying tournament games close to home have had to drive to other states to take in the action.

What does the LGBTQ community say about this HB2 repeal?

That it’s no repeal at all, and locks in discrimination against LGBTQ persons for at least three more years. They say it also offers no protection for transgender persons who want to use bathrooms conforming to their gender identity. The Human Rights Campaign, the country’s largest LGBTQ civil rights group, dismissed the compromise legislation, saying “it doesn’t repeal the hateful law and is a statewide prohibition on equality.”

The group warned there would be “political consequences” for any Democrat or Republican who voted for this “bad deal.”

Are those driving the other side of this fight - conservative Christians - OK with the repeal?

No, they oppose it, too. Only with HB2 in place, they say, will women and children feel safe in bathrooms. The N.C. Values Coalition condemned the compromise, saying “this repeal of HB2 will not solve anything!”

The group urged conservative legislators to “stand strong” against the move to end HB2.

Who else is against it?

On the left, the Rev. William Barber, who heads the North Carolina NAACP.

On the right, Lt. Gov. Dan Forest, a close ally of the religious right.

So who is for the compromise?

The N.C. business community – especially chambers of commerce, Realtors and others who’ve seen the economic effects of the anti-HB2 economic boycott up close.

And many politicians are for it.

Democratic Gov. Roy Cooper worked with Republican legislative leaders Phil Berger in the Senate and Tim Moore in the House to iron out the details of the repeal bill.

Cooper said the bill was not perfect, but he and Senate Minority Leader Dan Blue corralled Democratic votes for it Thursday.

Ditto, Senate Leader Berger and House Speaker Moore on the GOP side.

They got the votes they needed. But there were holdouts.

When the Senate voted for repeal, there were some strange bedfellows in the Mecklenburg legislative delegation. Both voting no – the losing side -- were GOP Sen. Dan Bishop, the sponsor of the original House Bill 2, and Democrat Jeff Jackson.

How does the repeal law compare to HB2?

“I think the intent of the bill is to restore the status quo prior to Charlotte passing its ordinance, and to leave that in place at least for the next three years,” said Greg Wallace, who teaches constitutional law at Campbell University.

Once the 2020 moratorium expires, local governments may be free to adopt nondiscrimination ordinances – except for those on public restrooms – as they wish, legal experts say. Municipalities’ authority to enact public accommodation ordinances has been, and still is, murky.

The moratorium could have unintended consequences, said Brian Clarke, an employment law specialist at Western Carolina University. After 2020, municipalities might have more free rein than ever to pass ordinances on private employment, such as making it illegal to deny jobs because of sexual orientation.

“Local governments could actually end up with more authority over private employment and anti-discrimination in public accommodations except for bathrooms,” Clarke said. HB2’s repeal, he added, also erases some non-bathroom aspects such as prohibitions on local governments raising the minimum wage.

Where does that leave Charlotte?

Charlotte, meanwhile, is back where it started on gender identity and public restroom use.

“It does put the law back before we had clear regulations of what should happen when trans folks needed to go to the bathroom,” said UNC family law professor Maxine Eicher. “In that sense, the law goes back to law that was not clear. That said, in actual practice, there were many trans folks for whom bathroom choices were a challenge because it was not clearly protected.”

The Charlotte ordinance that prompted legislators to pass HB2 offered that protection, she said.

Experts say legal challenges of HB2 would probably become moot, on grounds that controversy over the law has gone away, although plaintiffs may try to continue them.

What will be the political fallout?

Cooper has angered liberals and LGBTQ voters – both vital allies of the Democratic Party. But he doesn’t have to run again until 2020.

Legislators will be on the ballot in 2018. If tempers aren’t cooled by then, some Republicans and Democrats who voted for repeal could face retribution at the polls from their respective bases.

But 2017 is election year for mayoral candidates in Charlotte. That could put Mayor Jennifer Roberts and her challengers on the hot seat. Roberts, in tweets Thursday, condemned the vote as a “false repeal.”

What happened to the previous repeal effort?

The Senate voted down a repeal bill in December after a day of furious partisan debate. The House adjourned without a vote. Then Gov.-elect Roy Cooper and Republican legislative leaders blamed each other.

The December measure followed two Charlotte City Council votes to undo its own bathroom ordinance. Senate leader Phil Berger cast it as a short-term solution while permanent alternatives to HB2 were explored.

Apart from repealing HB2, the final version of Berger’s bill would also have imposed a moratorium on local ordinances regulating employment practices, public accommodations or access to restrooms.

But unlike the 3-year ban included in Thursday’s bill, the December moratorium would have lasted only until 30 days after adjournment of the legislature’s 2017 session.

Bruce Henderson: 704-358-5051, @bhender