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North Carolina General Assembly repeals controversial HB2

HB2 was repealed by the General Assembly, and has been replace by House Bill 142, a less restrictive bill, which still leaves some voters unhappy.

North Carolina’s contentious House Bill 2, often referred to as HB2 or “the bathroom bill,” survived several threats both political and economic over the course of its brief lifespan.  However, responding ultimately to the NCAA’s threatened 5 year ban on holding tournament events in North Carolina, the North Carolina General Assembly repealed HB2 on Thursday, March 30th, 2017, replacing it with the somewhat more limited House Bill 142.

The North Carolina General Assembly passed HB2 on March 23, 2016 in response to Charlotte amending their non-discrimination ordinance to include gender choice as a protected class.  The bill passed with nearly universal Republican support and close to a third of Democrats supporting as well.  However, opposition was immediate and vocal.  Democrats in the North Carolinas Senate staged a walk-out prior to voting.  HB2 was quickly challenged in the United States District Court for the Middle District of North Carolina.  Then North Carolina Attorney General Roy Cooper decried the bill as unconstitutionally discriminatory and refused to defend it in court.  Many Democrats, including those in the Obama administration, echoed now-Governor Cooper’s position.

Taking a stance against the discriminatory effects of the law, several organizations decided to remove or scale back their interests in North Carolina.

Another argument against HB2, raised by Democrats and business-minded conservatives, was the negative economic impact on North Carolina.  Taking a stance against the discriminatory effects of the law, several organizations decided to remove or scale back their interests in North Carolina.  The NBA, whose annual all-star weekend was scheduled to be held in Charlotte, North Carolina in 2017, decided to hold their events in New Orleans instead.  The Atlantic Coast Conference, whose football championship has traditionally been played at Bank of America Stadium in Charlotte, and whose basketball tournament has traditionally been held in Greensboro, North Carolina, removed those events in favor of Orlando, Florida and New York City, New York, respectively.

These are examples of the kinds of opportunities North Carolina lost because of various organizations’ attempts to use their public and economic influence against HB2.  All told, the losses to North Carolina’s economy are currently estimated in the hundreds of millions of dollars.   A recent associated press estimate projected a further loss of 3.76 billion dollars over the next twelve years.  Though a tiny amount in comparison to North Carolina’s projected roughly six trillion dollar GDP over the next twelve years, a loss in the billions is fairly significant.

And yet, HB2 remained the law in North Carolina for an entire year.  Many North Carolina General Assembly members who supported the law repeatedly affirmed their value for gendered privacy and dignity in spite of economic and legal attacks from within and without.  The public and political firestorm surrounding HB2 seemed to dissipate slightly following the state elections in November, 2016, and Roy Cooper’s resulting election to Governor of North Carolina.  Governor Cooper’s platform had largely focused on repealing HB2.  Attempts at a full repeal in December, 2016 quickly fell apart with neither side willing to compromise.  As the new Democratic Governor faced a Republican-held General Assembly, an outright repeal of HB2 looked increasingly unlikely.  In mid-March the Governor softened his position to try and work with the General Assembly, offering the opportunity for a compromise.

[T]he NCAA informed the state that they would soon be selecting event locations through 2022, and North Carolina risked losing consideration…

Then, on Thursday, March 23, 2017, the NCAA informed the state that they would soon be selecting event locations through 2022, and North Carolina risked losing consideration for any of those NCAA events if HB2 was not repealed.  The NCAA’s statement came in the midst of a high-profile championship run by the University of North Carolina’s men’s basketball team.  UNC’s coach, Roy Williams, repeatedly used his platform to criticize HB2.  Also in close proximity to the NCAA’s statement was an equally high-profile loss in the NCAA tournament by the Duke University men’s basketball team to the University of South Carolina.  Their game was played in Greenville, South Carolina, after having been moved from the usual location in Greensboro, North Carolina due to the NCAA’s stance on HB2.

Though it is unclear whether losing the opportunity to host tournament games for these North Carolina based schools (among several others) had any part in convincing the General Assembly to compromise, the multiple reminders of lost revenue and prestige due to HB2 likely made their decision much easier.  Following the NCAA’s statement, Governor Cooper called for an HB2 compromise or repeal.  The General Assembly responded, voting on Thursday, March 30, 2017 to repeal and replace HB2.

House Bill 142 was the bill passed to repeal HB2 and replace it with compromise provisions.  The basic tenets of HB142 are threefold: repealing HB2, preemption of any new non-discrimination ordinances, and creating an expiration date of HB142’s provisions of 2020.  The repeal section in the bill is fairly straightforward, just containing a blanket statement that repeals HB2.  The compromise language appears in the following sections.

As part of that compromise, HB142 contains a preemption provision vesting the power to regulate “access to multiple occupancy restrooms, showers, or changing facilities” solely in the General Assembly, to the exclusion of state agencies.  Included among the state agencies specifically is the University of North Carolina, the source of the original lawsuit against HB2.  The bill goes a step further, specifically barring local governments in North Carolina from enacting or amending any ordinances regulating “private employment practices” or “public accommodations.”  Essentially, these sections of HB142 maintain the highly controversial provisions of HB2.  The General Assembly maintains their exclusive regulating power by continuing to exclude local ordinances and independent action by government agencies.

The fact that HB142 was not a full repeal and allows the General Assembly to retain power over these types of regulation created a firestorm among opponents of HB2, many of whom felt lied to and cheated by Governor Cooper and Democrats in the General Assembly.  Groups such as the ACLU decried the bill as a “compromise on civil rights.”  Many opponents of HB2 point to the similar provisions found in HB142 that vest the power to choose whether transgender protections are necessary in a currently Republican-majority General Assembly.

Their argument rings hollow.  One major victory for LGBTQ activists is HB142’s lack of any specific demarcation of how public restrooms, showers, and changing facilities are to be used.  HB2 included a provision specifying that whether a person should use a men’s or women’s restroom was dependent on the biological sex of the individual.  The current law repeals that provision, and there is no line in the sand at the moment.  Yes, that is only the case as long as the Republican-held General Assembly does not change the law to reflect a new a biological sex line.  However, this law is only in effect until 2020.  A lot can happen in State politics between now and then.

Those who believe very strongly in the societal principles affirmed in HB2 see HB142 as rejecting values for profit and political capital.

These are the very reasons why several supporters of HB2 are also unhappy with the compromise bill.  Those who believe very strongly in the societal principles affirmed in HB2 see HB142 as rejecting values for profit and political capital.  The N.C. Values Coalition saw the compromise as submission to the NCAA’s pressure.  Lieutenant Governor Dan Forest, a staunch advocate of HB2, denounced the compromise as “yielding the moral high ground and giving in to a new form of corporate extortion from an unaccountable, out of state, non-elected, tax-exempt organization (NCAA).”

If it is any comfort to those criticizing the HB142, the new bill seems to be assuaging some of the organizations that backed out of North Carolina following HB2’s passage.  The NCAA reviewed HB142 and issued a statement shortly thereafter lifting the ban on holding events in North Carolina.  The NBA soon followed suit, with Commissioner Adam Silver reopening North Carolina as an option for the 2019 All-Star events.  The ACC has also decided to reconsider North Carolina for its post-season events.  Many North Carolina businesses are happy with the action, hoping to see a boost in the near future.

For the moment, the bad news for both sides is the amount of internal discord this compromise produced.  If North Carolina sees an economic boost, both Governor Cooper and the General Assembly will use that as political capital to boost their chances in the next election.  But there are unhappy parties on either side.  Democrats likely have a higher risk of falling prey to division.  The leader under whom various Democratic factions united, Governor Cooper, will continue to face stiff criticism and anger for the foreseeable future.  There is bitter irony in the fact that the criticism many Democrats promulgate against Governor Cooper and HB142 may become self-fulfilling prophecy, in essence dividing Democrats so much that they cannot regain a majority in the General Assembly.  The next elections will be an interesting test in determining which way North Carolina’s public policy will turn.

Jonathan Eure, Staff Writer
About Jonathan Eure, Staff Writer (12 Articles)
Jonathan Eure is a third-year law student and serves as a senior staff writer for the Campbell Law Observer. He lived in Morganton, in the foothills of North Carolina, before moving to Raleigh for law school. He earned BA’s in Political Science and History from the University of North Carolina at Chapel Hill, graduating in 2014. The summer after his first year of law school, Jonathan worked as a legislative research intern with Representative Rob Bryan in the North Carolina General Assembly. Jonathan now interns with the Honorable Paul Newby at the North Carolina Supreme Court. Jonathan is the Secretary for the Campbell Public Interest Law Student Association (CPILSA).