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HB2, North Carolina's sweeping anti-LGBTQ law, explained

The state legislature passed a deal to "repeal" the anti-LGBTQ HB2. But LGBTQ advocates aren't happy with it.

With support from Democratic Gov. Roy Cooper and the Republican-controlled legislature, North Carolina on Thursday passed what supporters brandished as a "repeal" of HB2, the state’s anti-LGBTQ law. But LGBTQ advocates are furious, arguing that the deal falls far short of the full repeal they were hoping for.

To understand why, let's back up. HB2 had two major parts: It overturned and banned local statutes that protect LGBTQ people from discrimination based on sexual orientation or gender identity. And it prohibited transgender people from using bathrooms and locker rooms that align with their gender identity in schools and government buildings — due to a baseless myth that letting trans people use the bathroom or locker room for their gender identity would lead to men posing as trans to sexually harass and assault women in women's facilities.

The deal does get rid of the latter: It makes it so state and local agencies in North Carolina can no longer regulate who uses what bathroom or locker room, effectively ending the ban on trans people using the bathroom or locker room for their gender identity.

But the deal does not fully repeal the other part of HB2. It does seem to let nondiscrimination laws passed by local governments before HB2 kick back into effect. But it also continues to prohibit local governments from passing nondiscrimination laws until December 1, 2020, so cities like Charlotte over the next three years still won't be able to pass a new law that bans discrimination against LGBTQ people. And the deal permanently prevents all government agencies in North Carolina, from local to state, from setting up trans-friendly bathroom or locker room policies, since they'll no longer be allowed to regulate access to these facilities.

Since North Carolina has no statewide nondiscrimination laws protecting LGBTQ people, it will continue to be legal across much of the state for an employer to fire someone, a landlord to evict someone, and a business to kick someone out or engage in other kinds of discrimination solely because of the person's sexual orientation or gender identity.

In fact, under the deal, private businesses will still be allowed to deny trans people the bathroom for their gender identity — and local governments will be powerless to stop them.

That's led LGBTQ advocates to call the deal "a fake repeal."

Still, the deal moved forward. Under pressure from the economic backlash caused by business boycotts against HB2, both Cooper and Republican leaders in the legislature came together to try to pass something that undoes some of the anti-LGBTQ law's damage. It was particularly pressing for state lawmakers, because Thursday was the deadline reportedly set by the NCAA to either repeal HB2 or risk losing the state's chance to host college championship games that can bring millions in revenue.

So state lawmakers pushed forward with their "repeal" deal, even as LGBTQ advocates argued that the deal doesn't go far enough — and continues enabling anti-LGBTQ discrimination in North Carolina.

What North Carolina's HB2 did

HB2 did two big things:

  1. It overturned and banned local laws that don't conform to the state's nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn't ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forced all cities and counties to keep it legal to discriminate against LGBTQ people in these settings.
  2. It prohibited transgender people from using bathrooms or locker rooms in schools and government buildings based solely on their gender identity. Instead, they're forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed in North Carolina through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it's not required.

In other words, HB2 was a mix of two types of anti-LGBTQ measures: state laws that ban local nondiscrimination measures for LGBTQ people and an anti-transgender bathroom bill.

It was a startling piece of legislation. And it led to swift protests from LGBTQ groups, which persuaded big businesses around the country to boycott North Carolina until the measure is repealed.

In response to the backlash to the law, the Republican-controlled legislature passed a compromise deal that struck down parts of HB2. And Democratic Gov. Roy Cooper, who's long opposed HB2, supported the deal, acknowledging that it's "not a perfect deal" but "begins to repair our reputation."

But LGBTQ groups said the deal fell far short of the full repeal they wanted. And they suggested they'll go to court to get rid of the rest of HB2 and its "repeal" deal.

How North Carolina got to this point

North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.

Charlotte was essentially trying to fill this gap in civil rights laws. By expanding the city's existing civil rights protections in February 2016, the city council hoped to make it clear that LGBTQ people should be able to go to a restaurant or hail a taxi without the fear of legally allowed discrimination.

Most North Carolinians support these legal protections. In a 2015 survey by the Public Religion Research Institute, 64 percent of North Carolina respondents said they favor laws that protect LGBTQ people from discrimination in jobs, housing, and public accommodations. That was a little below the national average of 71 percent, but still a strong majority in favor of such protections.

Most Americans in every state think discrimination against LGBTQ people should be illegal. Public Religion Research Institute

Some cities in North Carolina already forbade workplace discrimination against LGBTQ people, but the state as a whole currently legally allows anti-LGBTQ discrimination in the workplace, housing, and public accommodations. (Again, federal and state laws forbid workplace, housing, and public accommodations discrimination on the basis of, for example, race.)

But when Charlotte passed its own nondiscrimination law, Republican lawmakers, led by then-Gov. Pat McCrory, took issue with a provision that allowed trans people to use the bathroom that aligns with their gender identity. So they moved to overturn Charlotte's law in a special session on March 23, 2016. And with HB2 proposed and signed into law within 24 hours, North Carolina Republicans struck down all local LGBTQ nondiscrimination ordinances in the state and imposed anti-trans rules in school and government building bathrooms.

The move triggered a national firestorm. PayPal and Deutsche Bank pulled expansions into the state that would have created hundreds of jobs. The NBA and NCAA pulled events from the state. Several musicians, such as Bruce Springsteen and Pearl Jam, canceled concerts in the state. A+E Networks and 21st Century Fox said they would reconsider using North Carolina as a filming location in the future. More than 200 major CEOs and business leaders signed a letter asking Gov. McCrory to repeal the law.

By Wired's estimate, North Carolina as of September had lost $395 million — "more than the GDP of Micronesia" — as a result of the law. And according to the Associated Press, the law will ultimately cost the state at least $3.76 billion over 12 years.

Meanwhile, support for North Carolina Republicans tanked in the traditionally conservative state, based on polls. Voter opposition to HB2 was credited as one of the major reasons that McCrory lost his bid for reelection against Democrat Roy Cooper.

This was entirely predictable, as other states that passed anti-LGBTQ laws have faced similar consequences. In 2015, when Indiana passed a religious freedom law that was widely misinterpreted as allowing anti-LGBTQ discrimination, businesses and celebrities threatened boycotts, drawing widespread media coverage. Eventually, the controversy forced the state legislature to clarify that the law is not meant to allow discrimination against LGBTQ people, but only after reportedly hurting its tourism industry.

But North Carolina lawmakers had, until Thursday's move to pass a partial repeal, by and large stood their ground — even after McCrory's loss to Cooper in the November election, and after Charlotte repealed its nondiscrimination statute in late 2016 to try to placate a repeal deal. And in defending their support of HB2, Republican lawmakers frequently cite an often-used myth against LGBTQ protections.

The "bathroom myth" behind HB2

Behind Gov. McCrory and other Republican lawmakers' opposition to Charlotte's ordinance is the bathroom myth: the idea that if trans people are legally allowed to use the bathroom that corresponds to their gender identity, men will take advantage of the law to enter women's bathrooms to harass and sexually assault women. McCrory and other Republicans regularly cite this myth to argue that Charlotte's law raised public safety concerns.

But even with the Charlotte ordinance, sexual assault remained illegal in Charlotte and North Carolina.

Moreover, there's absolutely no evidence that the passage of nondiscrimination laws leads to more sexual assaults or harassment.

Experts from 12 states with laws that protect LGBTQ people from discrimination told Media Matters that they don't know of a single reported instance of sexual assaults in bathrooms stemming from the laws.

Experts say LGBTQ nondiscrimination laws do not lead to sexual crimes in bathrooms. Media Matters

In another investigation, Media Matters also found that 17 school districts around the country with protections for LGBTQ people, which collectively covered more than 600,000 students, had no problems with harassment in bathrooms or locker rooms after implementing their policies.

For trans people, the big issue is that North Carolina is trying to push them into acting as someone they're not. Forcing trans people to use the bathroom that doesn't align with their gender identity acts as a reminder that, as far as society has come on some LGBTQ issues, it's still not completely willing to accept trans people and their identities — even if trans people pose no danger to anyone else.

Then there's the practical concern: Under HB2, trans people are forced to break the law — and risk getting caught — just to use the bathroom. As Lily Carollo wrote for Vox, "From now until the law is repealed or settled in court, or until my birth certificate is amended, I will keep breaking the law. I'm not the only one. I will be an anxious mess every time I use the bathroom, but I don't see any option. It's all I can do, really. I am a woman."

Gavin Grimm, a 17-year-old trans activist who sued his school for bathroom access, framed it another way: "This wasn’t just about bathrooms. It was about the right to exist in public spaces for trans people," Grimm told me, quoting trans actress Laverne Cox. "Without the access to appropriate bathrooms, there’s so much that you’re limited in doing. If you try to imagine what your day would be like if you had absolutely no restrooms to use other than the home, it would take planning. You would probably find yourself avoiding liquids, probably avoiding eating, maybe going out in public for too long at a time."

Still, the bathroom myth remains prominent. In Houston, it was one of the ideas opponents of a nondiscrimination law used to get people to vote against the local measure. And North Carolina lawmakers used the myth to strike down all local ordinances that merely forbid some forms of anti-LGBTQ discrimination.

Even after so much political chaos and economic turmoil in the state, North Carolina Republicans stuck to their myth for more than a year — taking until Thursday to repeal parts of HB2 in a compromise that LGBTQ advocates deemed a "sham."

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