Why Did North Carolina’s Repeal of HB2 Fail?
Despite assurances from the North Carolina Democratic governor-elect and the Republican establishment, last week’s special legislative session failed to yield a repeal of HB2, the anti-trans law that has cost North Carolina so much business and global standing.
The cause? North Carolina’s Republican party. However, to fully understand the situation, we need to backtrack.
HB2: The story so far
In February of 2016, the city of Charlotte passed a rather innocuous measure to ensure that LGBT people were fully protected under the law. This included a provision that would specifically allow trans citizens to use the public accommodations that accord with their gender.
Based on unfounded fears of sexual offenses and concerns that local government was exceeding its authority, the Republican-led state General Assembly called a special session. And with unprecedented speed, legislators agreed on a measure that bars local governments from exceeding state anti-discrimination protects.
If that had been the only result of the legislation, it may not have caused such a controversy, but the Republicans in North Carolina were not finished yet.
Known as HB2, the bill carried with it a mandate that people could only use public bathrooms that matched the gender indication on their birth certificate. This applied to all public facilities — even those in schools and universities — thus setting up a massive legal tug-of-war with the federal government.
Soon after, the boycotts began.
North Carolina lost business, and companies like PayPal refused to create new jobs in the state. Meanwhile, law enforcement officials claimed that HB2 was virtually meaningless, as there was no way to police the bathroom ban.
The legislature reconvened, but rather than remove those discriminatory provisions, it instead doubled down on them without making HB2 any easier to enforce.
In the meantime, Governor Pat McCrory — who remained a staunch supporter of HB2, even when Republican legislators backed away from the law — faced a tough fight for re-election against Roy Cooper, the then-Democratic state attorney general. McCrory lost, and the Republican legislature was not happy about the outcome.
Immediately, they moved to limit Governor-elect Cooper’s power, calling a special legislative session to that effect.
Some time later, though, a ray of light emerged: The Governor-elect said that he received assurances that HB2 would be repealed by the legislature during another special session – if Charlotte rescinded its nondiscrimination ordinance.
The intent of this condition was to push a return to the policies that preceded the ordinance — to Republican minds at least, there would be no need to retain HB2.
In due course, Charlotte’s city council voted to repeal the ordinance, but they added a rider: They reserved the right to be able to create an LGBT-inclusive ordinance in the future. What’s more, the council reserved the right to reapply the original ordinance if the state legislature failed to repeal HB2 by the close of its December special session.
The stage was set for a repeal.
The legislature convenes without repealing HB2.
Because McCrory still technically holds power, Republicans perceived Cooper’s special session announcement to be a power play. The GOP heads in the Senate and General Assembly issued a public rebuke. Then came the change of days. The session was originally slated for Tuesday, December 20. It was pushed back to Wednesday, December 21. Again, this decision appeared designed to undermine Cooper.
When the legislature finally met, things did not get off to a good start in the General Assembly. Republicans were deeply annoyed that Charlotte city officials had dared to make their repeal contingent on an overturn of HB2 – and even more annoyed that they would consider passing an LGBT-inclusive ordinance in the near future. It took a great deal of time before an HB2 repeal was even brought to the floor.
Democratic lawmakers introduced a bill that would be a straight repeal of HB2, and Republicans turned up their noses. They then introduced their own measure that would repeal HB2 but also carry a rider: No local city government could pass any new employment or public accommodations protections for a “cooling-off period.”
Democratic lawmakers were equally aggravated by this move. The situation devolved from there and, as the Atlantic notes, it quickly emerged that even with the moratorium on protections added to the repeal bill, Republicans probably didn’t have the votes.
A last-ditch attempt was made to salvage the session by dividing the bill into two parts — the moratorium and the actual HB2 repeal — but the Senate rejected this move. The General Assembly ended the special session thereafter, leaving the Senate with nothing else to do but also close.
Why did this happen?
What emerges is a picture of a bitterly divided state in which Republican lawmakers refuse to give up even an ounce of power. Local governments have traditionally been able to pass ordinances that exceed state authority so long as it is in line with the original intent to protect minority classes.
We also can’t ignore the very clear attempt to further wound the Governor-elect Roy Cooper. Cooper appears bruised, having announced the repeal with near certainty and then finding that the legislative session was nothing more than a costly exercise in political theater.
North Carolina now must endure yet another year of HB2 because it is unlikely that any repeal can be made in the near future. And sadly, this means that trans and gender nonconforming people continue to suffer state-sponsored discrimination.
At this time it is unclear whether Charlotte will reenact its ordinance, but as a show of defiance against a state legislature that is making analysts question whether the state can even be called a democracy anymore, it would be a welcome — if only symbolic — act.
Photo credit: Thinkstock.