The latest on North Carolina's bathroom bill

On Thursday the North Carolina legislature finally repealed the state's notorious "bathroom bill," also known as HB2. It was unfortunately not a clean repeal, in that the new law reimposes some objectionable restrictions. But it does at least do away with HB2 and its most ridiculous provisions.

The repeal law (link to PDF) is less than a page long and does three things:

  • Section 1 repeals HB2 and a separate related law (see below for details).
  • Section 2 prohibits localities and state agencies from imposing their own bathroom access rules.
  • Sections 3 and 4 prohibit local ordinances against discrimination in public accommodations and private-sector employment until 2020.

Some supporters and opponents of the law have argued that the repeal accomplished nothing, but as discussed below this is not quite correct. Some background:

Last year the state's largest city, Charlotte, passed an ordinance that would among other things have allowed transgender persons to use whichever restroom, men's or women's, they found most comfortable. Some people were afraid that this would license male sexual predators to invade women's restrooms and dressing rooms. In reality, existing laws against sexual assault, "peeping toms," and the like would not have been affected by the ordinance, and laws and ordinances effectively identical to Charlotte's exist in many places, such as Myrtle Beach, South Carolina, without leading to the scenarios envisioned opponents of Charlotte's ordinance.

Despite that, the highly gerrymandered, and overwhelmingly Republican, state legislature went into panic mode and held a 12-hour emergency special session devoted to the supposed crisis, during which, without public hearings or time to consider the matter rationally, it passed a badly drafted House Bill 2 (HB2), which was that same evening signed into law by Republican Governor Pat McCrory. At that point its formal designation became Session Law 2016-3 (link).

Most notoriously, HB2 decreed that anyone using a multiple-occupancy restroom, shower facility, or dressing room in a state or local government building (including a public school) use one corresponding to the gender on his or her birth certificate. Private businesses or organizations were authorized to set their own policies. As explained in this previous post and this one, the sloppy wording of HB2 actually defeated the original purpose.

HB2 also forbade any local nondiscrimination ordinances (which among other things eliminated a number of local protections for veterans). In addition, it was worded in a way to end the right of individuals to sue in state courts for illegal discrimination because of race, religion, national origin, etc. (Note that there is no North Carolina or federal law prohibiting discrimination on the basis of sexual orientation or the like; HB2 did not change that either way.)

The last provision was opposed by the Republican governor and was repealed last year by a bill known as HB169 (officially Session Law 2016-99; see this link). Unfortunately the repeal reduced the time to file such lawsuits.

As a practical matter, the bathroom provisions of HB2 proved unenforceable. Law enforcement agencies pointed out that they could not be expected to stand guard outside of restrooms demanding to see birth certificates, and in any case the law imposed no penalties for violators. At most it might have been possible to charge someone with trespassing. (See e.g. this report from NPR on the practical difficulties of enforcing this misconceived provision.) Moreover, a preliminary federal injunction (PDF) suggested that with respect to educational institutions the law was likely in violation of Title IX given precedents in the governing Fourth Circuit.

There was widespread opposition to HB2 both within the state and nationally. Religious and secular human rights organizations called for the law's repeal. Popular entertainers canceled performances or donated ticket proceeds to LGBTQ rights organizations. Multiple businesses suspended or canceled plans to expand in the state, and various sports organizations (including NASCAR) strongly opposed the law and in several cases moved major events such as tournaments out of the state. Even Chris Wallace, in an interview with Gov. McCrory on Fox News, pointed out that the law was supposed to address a problem that doesn't exist in reality. See this previous post for more on conservative opposition to HB2.

Public sentiment grew increasingly negative, and Gov. McCrory was the only governor seeking reelection in 2016 to be turned out of office, which polls suggest was largely a consequence of his support for HB2.

The immediate impetus for the repeal was an ultimatum from the National Collegiate Athletic Association (NCAA), which threatened to pull major games from the state for years go come. The repeal encompasses the entirety of HB2 and also repeals the separate law imposing tighter limits on filing private lawsuits against employment discrimination. Unfortunately, as noted above, Section 2 of the repeal law blocks ordinances like Charlotte's. But what seems less noticed is that (whether the legislature intended it or not) the wording of that section also appears to forestall local attempts to impose an HB2-like bathroom requirement on transgender persons and hence may actually strengthen transgender rights. The general restriction on local antidiscrimination laws in Section 3 is obnoxious, but Section 4 terminates that provision in 2020. Incidentally, only two other states attempt to forbid local civil rights ordinances: Tennessee and Arkansas. (See this article for more.)

In summary, the current situation is far from ideal, but it is less awful than some have portrayed. Furthermore, the experience shows that public opinion can respond to information campaigns and that even North Carolina's awful legislature responds to pressure. If that pressure is maintained, and especially if responsible voters throw the rascals out, matters can be further improved.

For other posts on this blog referencing HB2, see this link.

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