The flashpoint in the new law that repeals House Bill 2 is a temporary restriction on cities and counties’ anti-discrimination protections.
While that provision spurred HB2 opponents to denounce the compromise enacted Thursday, it allowed Republicans in the N.C. General Assembly to say they stood their ground even while surrendering the requirement that restroom use in government facilities match someone’s sex at birth.
The repeal deal bans until 2020 new local laws dealing with public accommodations or private employment. That modification of HB2’s clampdown on local ordinances is part of an ongoing national debate over discrimination and whether state lawmakers or locally elected officials have the final say on local issues. Both controversies came together when Charlotte tried to expand LGBT protections against the wishes of the legislature.
Rep. Sarah Stevens, a Republican from Mt. Airy who was a key negotiator in the repeal deal, said in a news conference Thursday the new law addresses legislators’ main concerns by ensuring restroom privacy and reining in city councils and boards of commissioners. It secures the state’s authority over regulation of public bathrooms, showers and locker rooms, and its moratorium blocks localities “that go out and do this kind of foolishness.”
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North Carolina is one of only three states that restrict or prohibit local non-discrimination ordinances.
“Most states recognize it’s perfectly legal and appropriate for local ordinances to be passed to provide further protections for LGBT people, for veterans, for victims of domestic violence,” Rose Saxe, a senior staff attorney at the American Civil Liberties Union, said Friday.
Courts weigh in
In North Carolina, the ACLU and Lambda Legal sued a year ago on behalf of six students and employees at UNC-Chapel Hill, N.C. Central University, UNC-Greensboro and the UNC School of the Arts alleging HB2 violated their constitutional rights. That lawsuit is still pending; the effect of HB2 repeal is not yet known.
Tennessee pre-empted localities from adopting LGBT protections in 2011. As in Charlotte, Nashville had mandated that companies couldn’t discriminate against employees based on sexual orientation or gender identity.
The legislature and Gov. Bill Haslam responded with a bill prohibiting Nashville and other cities from passing non-discrimination measures that are broader than state law. LGBT-rights advocates sued in state court and lost in 2014. Their case was dismissed on appeal when it was determined they didn’t have standing to sue; but the court didn’t address whether the law itself was constitutional.
In Arkansas in 2014, the city of Fayetteville prohibited businesses and landlords from discriminating based on sexual orientation, gender identity, socioeconomic background, marital or veteran status.
It was repealed in a special election that was called for voters to enact or reject the ordinance, in a campaign fought by religious conservatives.
Jerry Cox, president of Arkansas Family Council, told the University of Arkansas public radio station at the time the ordinance “stirred things up in such a way that wouldn’t have occurred, I think, if people would’ve just left well enough alone.”
“This is about a lot more than just fairness or equality, or civil rights, or any of these other things,” he said. “It’s really about advancing a political and social agenda that is way out of step with the people of Arkansas and the people of Fayetteville.”
The next year the state passed a law banning cities and counties from enacting ordinances that exceed state discrimination protections by including sexual orientation and gender identity. Fayetteville toned down its original ordinance and sent it back to the voters for another election, where it was approved.
Opponents’ lawsuit over the city ordinance went to the state Supreme Court, which in February ruled that the ordinance was an unlawful expansion of state law. The court didn’t address the underlying question of whether the ordinance was constitutional.
The city’s attorney told The Arkansas Democrat-Gazette that the ordinance would remain in effect until a lower court judge rules.
Tobacco industry was pioneer
Neither the Arkansas nor Tennessee controversies reached the level of national attention North Carolina’s HB2 did, but in each state the laws were divisive.
“Absolutely. It didn’t make the national news but it was a statewide regular headline for some time,” said Janine Parry, a University of Arkansas political science professor. She said there has been talk of attempting a statewide initiative granting broad protections.
Case law on the topic goes back to the mid-1990s, when Denver tried to prevent discrimination based on sexual orientation. The ordinance was blocked in a statewide referendum establishing a constitutional amendment to prohibit cities and counties from recognizing homosexuals as a protected class.
But in a split, precedent-setting ruling, in Romer v. Evans, the U.S. Supreme Court found the Colorado law failed to meet the equal protection clause in the U.S. Constitution because it served no legitimate government interest.
The tactic of pushing for state laws pre-empting local ordinances may have been pioneered by the tobacco industry in the early 1990s. The industry launched state-level campaigns to repeal or prevent local efforts to control tobacco use, such as protecting people from secondhand smoke, according to a study by the Journal of the American Medical Association.
The trend more recently has seen city and county officials challenging state laws that narrowly protect against discrimination, including in Florida and Indiana.
“We’re seeing some states are trying to expand, in other states cities and localities are passing non-discrimination protections without backlash,” the ACLU’s Saxe said. “HB 142 (North Carolina’s HB2 repeal bill) is really unique. It’s the only state that goes farther and has restroom language. We haven’t seen that elsewhere.”
Control over cities
House Speaker Tim Moore elaborated on the issue at the news conference on Thursday after HB 142 was passed. Under North Carolina law, the legislature grants authority to local governments through individual laws rather than through a broad delegation of power.
But there remains uncertainty in the law, and Moore said he thinks future court rulings will clarify the matter. The issue extends beyond discrimination, into such issues as control over building codes.
“We now have control over cities out trying to pass ordinances all over the state that may contradict and conflict,”he said. “We don’t need a patchwork.”
Moore said imposing the moratorium on local ordinances until the end of 2020 gives this General Assembly and the one that follows in two years plenty of time to come up with agreeable restrictions on ordinances. It also follows the next gubernatorial election.
Moore also noted North Carolina is now in line with about 30 other states that don’t include sexual orientation or gender identity in their anti-discrimination laws.
While anti-discrimination ordinances that had been in effect in a handful of North Carolina cities are back on the books, following the repeal of HB2, other localities can’t follow suit before December 2020.
“If you have cities or counties that get outside the lane, we will do it,” Moore said. “I think a lot of the cities have seen the blow-back. I would say that a lot of folks in Charlotte city government probably had buyers’ remorse once all this happened. I would be surprised if they wanted to go down any road like this.”