Call it a head-on collision between politics and principle. Is anyone surprised that politics prevailed?
Yet here’s the twist that perhaps makes the outcome somewhat understandable, if no less regrettable.
Those of us committed to stamping out discrimination on the basis of sexual orientation or gender identity wanted North Carolina’s infamous House Bill 2 to be repealed lock, stock and barrel. The General Assembly’s compromise, signed into law March 30 by Gov. Roy Cooper, achieves repeal in a technical sense, but keeps the door open for discrimination to continue. The repeal, if that’s even what it can be called, thus amounts to a huge disappointment.
Those conservatives, secular and religious, who backed H.B. 2 as a public safety measure (surely a bogus rationale) — and more broadly as a way to withhold from LGBT individuals legal protections accorded to members of other minority groups — wanted to keep the law in force. For them as well, the repeal also amounts to a huge disappointment.
In other words, what the climax of the year-long H.B. 2 controversy came down to was not simply political pragmatism vs. a clear-cut set of deeply held beliefs.
There were two such sets of beliefs, basically irreconcilable. Yet the state’s elected leaders, whether their sympathies aligned with the progressives or the conservatives, came to the bitter realization that somehow, they would have to bridge the gulf between the two camps.
Already, the state had suffered massive economic damage, which was only going to grow worse. Already, it had endured the indignity of national scorn for going out of its way to exclude lesbians, gays and transgendered people from legal safeguards against discrimination.
Republicans and Democrats, those leaders came together behind a measure that offers at least the prospect of relief from a situation that had grown intolerable for both.
We progressives can stamp our feet and insist that our principles have been betrayed, even while we held the moral high ground. We can complain that the “repeal” was rushed to passage under an artificial deadline set by the ethical paragons at the National Collegiate Athletic Association, which threatened to extend for several years its blacklisting of North Carolina as a tournament site.
But after getting all that out of our systems, it will be time to consider the hard practical realities that in the end carried the day.
A total, outright, “clean” repeal of H.B. 2 wasn’t going to happen. The enactment of H.B. 142, as offensive as that law is, as nauseating as the legislative process was, can fairly be seen as a step that begins to put this sad, destructive episode behind us. Yes, begins. But we have to start somewhere.
H.B. 2’s best-known provision of course had to do with the awkward topic of restroom choices by transgendered people. The City of Charlotte tried to guarantee that such people could use restrooms matching the gender with which they identify – a sensible and humane approach that surely comports with common practice. Yet the legislature pushed back with the law’s requirement that people use restrooms in public buildings matching the gender shown on their birth certificate. Female safety and privacy were the ostensible reasons.
The new law continues its prohibition of local ordinances that would do what Charlotte wanted to do. Significantly, however, it does not impose a state rule. That amounts to a grudging admission by Republican legislative chiefs that their incessant fear-mongering about men disguised as women invading women’s restrooms and locker rooms to commit sex crimes was, to put it plainly, a load of hooey.
How will transgendered men and women who find themselves in a public building now respond when nature calls? Nothing in state law – which pre-empts local regulations, according to H.B. 142 – now tells them that they can’t do what most of them presumably do anyway.
As far as this issue goes, the lawyers might say that H.B. 142 returns North Carolina to the status quo ante – no small deal, and a step that should help rescue our state from the slings and arrows of late-night comedians.
But if H.B. 2’s callous, unnecessary bathroom rules are what drew the lightning of national ridicule, then its broader affront to lesbians and gays as well as the transgendered is what ended up casting our state as a place steeped in bigotry.
Localities were barred from extending anti-discrimination safeguards – meant to ensure equal access to accommodations and services, and fair treatment in the workplace – on the basis of sexual orientation or gender identity. And state law left those two categories off the protected list.
So under H.B. 2, gay or lesbian folks could be told to leave a store or restaurant because the place didn’t cater to “their kind,” or could be fired from their job for no other reason than the homophobic boss didn’t want them around.
The law’s repeal unfortunately won’t achieve a fix – which is why LGBT activists were so fervent in criticizing the repeal as fake.
Local say-so, eventually
The state’s anti-discrimination umbrella indeed will continue to leave LGBT residents uncovered. Section 3 of the one-page law’s four brief sections stipulates, “No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations.”
But where H.B. 2’s withholding of protections was open-ended, the repeal statute includes a sunset clause. The prohibition imposed in Section 3 is set to expire on Dec. 1, 2020.
That’s quite a ways down the road – a long haul during which North Carolina will continue in effect to classify lesbian, gay and transgendered people as second-class citizens. But it also allows for public attitudes to keep evolving toward tolerance, as they have in recent decades.
It’s not hard to imagine a majority of legislators deciding, as the sunset date approaches, not to try to stand against that evolution and to let progressive local governments set policies in tune with their communities’ values. At least, that’s a reasonable goal for those of us who see anti-LGBT prejudice, especially when it’s embedded in the law, as an insult to basic human dignity.
Right on through
There’s no use pretending that the process by which H.B. 142 was enacted wasn’t rough and ready, almost brutally so. The bill emerged from hard negotiations between Democratic Gov. Cooper, who had campaigned on the need for H.B. 2 repeal, and the legislature’s top Republicans and H.B. 2 defenders, House Speaker Tim Moore and Senate President Pro Tem Phil Berger.
Hours after a deal was struck, on the morning of March 30, the version of H.B. 142 that previously had passed the House – a version dealing with the wholly unrelated topic of state licensing boards — was gutted by a Senate committee. The H.B. 2 repeal language was substituted. At mid-day, the bill cleared the Senate.
From there it shot over to the House. Because the House technically was deciding whether to concur in the Senate’s changes to the original bill, there would be only one vote, and no amendments would be allowed.
The debate was lengthy. It was emotional. The staunchest social conservatives continued to resist repeal. The chamber’s most outspoken advocates for LGBT rights insisted that the repeal didn’t go far enough. Leaders of both parties swallowed hard and made the case for compromise.
When the vote was held, the bill’s 70 supporters included 40 Republicans and 30 Democrats. Among the 48 opponents were 33 Republicans and 15 Democrats. So the outcome did in fact represent a bipartisan agreement – not something to be sneezed at in a legislature where polarization and animosity between the parties have become all too common. Gov. Cooper signed the enacted bill later in the day, apparently as soon as it hit his desk.
Public input? Sorry – little time for such niceties, especially with the NCAA poised to drop the hammer.
Cooper had gotten off on the wrong foot with Moore and Berger when the legislature, after Cooper denied Republican Gov. Pat McCrory’s bid for a second term, enacted several laws during a December special session restricting the new governor’s powers. The courts will decide if any of those laws have gone too far.
But as Cooper has continued to emphasize, he understands the importance of working with Republican leaders and searching for mutually acceptable solutions to the state’s challenges. If the H.B. 2 repeal becomes a template for that sort of cooperation – and especially if GOP chiefs are chastened by their year-long misadventure with that misguided law – then the state may see progress on other important fronts such as tax policy, education and health care where conservatives would do well to heed Cooper’s moderately progressive voice.
H.B. 2 was a many-fold disaster — for North Carolina’s economy and reputation, for time wasted trying to cure a self-inflicted civic wound, and for our LGBT fellow citizens who had to deal with the fact that their state government seemed to regarded their concerns with contempt.
Now the law is gone. Its sting to a considerable degree remains. But perhaps Cooper, Moore and Berger together have found a way to move ahead.