RALEIGH, North Carolina — Sarah Gillooly, policy director for the American Civil Liberties Union North Carolina, waited outside the room where the Senate Rules Committee meets. It was Thursday, and the Rules Committee was scheduled to vote on a repeal of House Bill 2, North Carolina’s infamous “bathroom bill,” based on terms negotiated by Republican and Democratic leaders the night before.
Gillooly and the ACLU of North Carolina had heard about those terms. They did not like what they’d heard.
“The bill really ties the hand of local lawmakers in the short term but also in the long term,” Gillooly told Vox, “in the short term by prohibiting nondiscrimination ordinances until 2020, and in the long term by prohibiting local governments from protecting transgender people’s access to public accommodations.”
A year ago, Charlotte tried to pass a local nondiscrimination ordinance for the LGBTQ community, a stopgap since neither the state nor the federal government provides such protections. In response, North Carolina lawmakers enacted HB 2, a state law barring local municipalities from enacting their own nondiscrimination ordinances. But more famously, the law made it illegal to use bathrooms and changing facilities in schools and other public facilities that didn’t correspond with the sex on one’s birth certificate.
The law sparked national outcry, while the attention inspired other states either to drop efforts to pass their own versions of the law, like Georgia, or to double down and pass them anyway, as Texas did. But the threat of losing billions of dollars in state revenue forced North Carolina’s lawmakers to revisit the so-called bathroom bill. After several boycotts from businesses, concerts, and other moneymaking events that avoided the state due to the law, a potentially devastating threat was made: The NCAA said it would not host any of its major sporting events for the next five years in North Carolina if the state didn’t change the law by March 30, potentially risking the loss of half a billion dollars in revenue by 2022.
That seemed to be the last straw. North Carolina’s government had to act.
So a year after HB2 became law, the North Carolina General Assembly hustled to pass a compromise to repeal it. Many opponents of HB2, though, see the compromise as too similar to the status quo — or even a step backward. But the compromise was a product of its situation, resulting from months of wrangling and attempts that went nowhere.
Voters signaled their disapproval of HB2 — by pushing their governor out of office
The previous governor, Pat McCrory, championed the bill last year after he signed it into law, but it quickly became clear that would serve as a weakness in his bid for reelection. In November, McCrory, a Republican, lost to Attorney General Roy Cooper, a Democrat, by a 10,000-vote margin after a recount. It was a stunning defeat, since every other high-profile statewide race — a US Senate seat, the presidency — went to Republicans. With the help of gerrymandering, Republicans also maintained veto-proof majorities in the legislature.
The effects of HB2 became the most contentious issue in the gubernatorial race; Cooper campaigned to repeal the law, and McCrory staunchly defended it. So when Cooper won, his supporters saw that as a definitive answer to how the state felt about what needed to happen next: A full repeal was the only way to move forward.
But House Bill 142, the compromise legislation that repealed HB2 last week, is not that. The law still bars local municipalities from enacting their own nondiscrimination ordinances before 2020. And even after that, no city or county can regulate multiple-occupancy bathrooms or changing facilities without the state government legislating that they can. That means no local anti-discrimination protections for the LGBTQ community, and transgender people in particular, will come in North Carolina unless Republicans who control the General Assembly say so. Given this compromise bill, that seems highly unlikely.
And if Republicans still hold a veto-proof majority going into 2020, they could decide to extend the moratorium.
“I’m feeling demoralized,” said Joaquin Carcaño, one of the transgender plaintiffs in a lawsuit brought by the ACLU after HB2 was signed into law. He also voted for Cooper. “You know, you try not to be overly optimistic, dealing with politics and things like that. But you like to believe promises made to your community, you know? When your community has done so much to support them. And so it’s demoralizing.”
Ames Simmons, director of transgender policy for EqualityNC, expressed similar thoughts after the Senate Rules Committee voted to send HB142 to the full Senate. “We need for Gov. Cooper to keep the promises that he made on the campaign trail about fully and cleanly repealing HB2,” Simmons said.
Cooper’s support for HB142 boiled down to a choice of pragmatism. The night the compromise was announced and the day before the bill was voted on, Cooper released a short statement: “I support the House Bill 2 repeal compromise that will be introduced tomorrow. It’s not a perfect deal, but it repeals House Bill 2 and begins to repair our reputation.”
Pragmatism was a theme for Democrats in supporting HB142. Sen. Terry Van Duyn, the Democratic minority whip, said as much to Vox on the floor of the Senate before the vote on HB142.
“HB2 does a lot of horrible things,” she said. “This doesn’t fix all of them. But it does, it really does fix some of them. And so, because it represents forward progress, I don’t see it so much as a compromise as a first step. And I — it’s the only tool I have right now. So that’s why I’m supporting it.”
Asked what was the main driver of his support for HB142, House Minority Leader Darren Jackson said it was getting rid of HB2.
“Getting that stain off our state,” he said. “For us to no longer be known as the bathroom state. And get to working on the issues that really matter. And one of those issues to me will be statewide nondiscrimination protections. But we’re never gonna get there if we’re still arguing about bathrooms.”
Sen. Dan Blue, the Democratic minority leader, introduced HB142 to the Senate Rules Committee with President Pro Tempore Phil Berger, the Republican leader. In a statement, Blue explained that while HB142 doesn’t fix all of HB2’s problems, it’s a step in the right direction.
“Let me begin by saying that a lot of us would not like to put a moratorium on local governments being able to evolve the laws that protect all citizens of the state,” Blue said. “But. We believe, overall, that this bill addresses the major issues that House Bill 2 created.”
The rule Republicans used to justify the moratorium on local nondiscrimination ordinances
Debating HB142 on the floor, House Speaker Pro Tempore Sarah Stevens (R), said that North Carolina is a “Dillon’s Rule state.” In an interview a few weeks before the compromise was announced, Stevens told Vox that any compromise had to keep North Carolina a Dillon’s Rule state.
Dillon’s Rule, named for John Dillon, a judge in Iowa in 1872, is a phrase for a type of judicial restraint. According to the rule, when local authority is litigated, judges should treat the scope of local authority in a very limited manner.
Historically, however, North Carolina hasn’t been a Dillon’s Rule state. The state grants authority to local governments not in a broad manner, but based on individual statutes.
“[W]hat we are is not something there is a name for,” Frayda Bluestein, a professor at UNC Chapel Hill’s school of government, said. “We’re a non–home rule state. But ... the main importance of all of this in the context of HB2 is when people say we’re a Dillon’s Rule state, what they’re saying is that there is no home rule, so there’s no argument.”
Once the House had passed HB142 and sent the legislation to Cooper for his signature, House Speaker Tim Moore held a press conference explaining why the moratorium was such an important issue to Republicans, and why it had to be so long. He said Republicans were concerned that cities would attempt to “create patchworks” that defy state lawmakers by establishing protections for LGBTQ residents. “I’m gonna tell you that there is a concern,” he said, “that continues to be a concern, of myself and a number of members, where cities get into doing additional things.”
House Bill 142 had support from leaders of both parties. Dissent came from both parties too.
At all points during its passage, from committees to full votes, HB142 encountered resistance from Democrats and Republicans. Before the full Senate, the bill passed 32-16 on its second reading (and by voice vote on its third), with Republicans and Democrats voting in the majority and the minority.
Sen. Dan Bishop, a Republican and an original co-sponsor of HB2, was one of the Republicans who voted no. His concern in voting for HB2, and voting against HB142, was bodily privacy for everyone in bathrooms and changing facilities against transgender rights.
“Those two come into conflict,” he said. Still, all the evidence we have so far shows that largely that’s not the case. States with laws that attempt to accommodate transgender rights have shown no discernible increase in sexual assault in bathrooms and changing facilities.
In the House, Republicans, beginning with Rep. Mark Brody, tried to delay the vote until the following week. The motion failed, 34-85. The only two openly LGBTQ members of the General Assembly at the time, Rep. Cecil Brockman and Rep. Deb Butler, spoke out against the compromise on the floor when debating the bill. When debate ended, the House voted to concur with the Senate, 70-48.
Before the House and Senate voted, I asked Sen. Mike Woodard, a Democrat, why he wasn’t going to vote for HB142.
“I think this is a worse deal than what we rejected in December,” he said.
Attempts to repeal House Bill 2 stretch back to December with Cooper’s win — but none of them went anywhere
Once McCrory conceded the governor’s race in December, an attempt to repeal HB2 was made during a special session of the General Assembly. During the 2016 campaign, McCrory’s official position was that if Charlotte repealed its ordinance, HB2 could be repealed too. Though Charlotte waited to act until December, McCrory still called for a special session.
The effort in December failed because Democrats rejected a six-month moratorium to prevent local municipalities from passing nondiscrimination ordinances (far better than the three-year moratorium they accepted with HB142). And even if Democrats had accept that moratorium condition, Republicans were possibly even more splintered on repeal than they were with HB142, so passage would not have been guaranteed.
When the new session of the General Assembly began this year, Democrats quickly filed several repeal bills, all of which were pretty similar. One even had Cooper’s official backing. Each bill was sent to its respective chamber’s rules committee, which usually means it’ll be worked on or it was sent to die.
While Democrats introduced their bills, only one Republican, Rep. Chuck McGrady, made any standalone effort to resolve the tensions surrounding HB2. His House Bill 186 repealed HB2 and increased penalties for crimes committed in changing facilities. Like HB142, it left legislation surrounding bathrooms and changing facilities to the prerogative of the state.
Unlike HB142, McGrady’s bill had a referendum provision for local nondiscrimination ordinances. If within 90 days, enough signatures had been collected, a referendum on that ordinance would have been triggered for the next municipal or general election. But putting up such a policy for a general vote appeared to have been the biggest obstacle to getting large-scale support from Democrats.
“I think that this is a compromise, but it doesn’t go far enough,” Sen. Erica Smith-Ingram, a Democrat who represents several northeastern counties, said about HB186 a few weeks before HB142 was introduced. “I definitely do not feel that the majority should determine the rights of the minority group. And that is exactly what happens with the local referendum on the [nondiscrimination ordinances].”
In an interview with Vox around the same time, Todd Barlow, Minority Leader Jackson’s legislative counsel, echoed Smith-Ingram.
“I think almost every House Democrat has a big problem with the referendum. And that’s because, historically, you know, we’ve been proud of our role in expanding civil rights,” Barlow said. “And when you’re talking about civil rights, you’re usually talking about people who may be in the minority, or people who may be not popular for whatever reason. And so when you put those rights — when you have elected leaders who take a courageous decision to protect those rights, and then you allow it to be undone by referendum, that kinda defeats the purpose.”
It seems, however, that talks had been taking place in the background. At one point, Jackson had around 40 House Democrats ready to support a modified version of McGrady’s bill, and McGrady had about 20 House Republicans. That would have been a margin necessary for the bill to pass the House. But some Republicans quickly grew wary of changes to the bill designed to garner Democratic support, and talks fizzled. Moreover, Cooper appeared to be vehemently opposed to McGrady’s bill.
“I certainly think [the modified House Bill 186] was a better deal, and that’s why we agreed to it,” Jackson said in response to a question by Colin Campbell, a reporter for the News & Observer, on the day of HB142’s passage.
HB142’s passage came after a series of failed, quick legislative maneuvers and the NCAA’s ultimatum
In the runup to HB142’s announcement, a draft of a bill that included a “religious liberty” provision leaked to a Charlotte TV station. A day before HB142 had been agreed to, Berger and Moore held a joint press conference to announce that a deal on HB2 had been reached — only for Cooper to swiftly deny any such agreement had been made. The clumsy rollout of the announcement suggests negotiations were fragile.
Moore confirmed as much to Vox.
“The way these negotiations would go, once you thought you had one thing resolved, there would be something else that would move,” he said.
Sen. Van Duyn offered a personal anecdote about how tense the discussions became.
“When I reach out to Republicans, they can’t talk to me,” she said to Vox in mid-March. “I have been told [by a Republican senator] that I can’t be seen talking to them publicly about HB2.”
Recent events also seemed to add a sense of urgency to reach some sort of compromise. Two days before the compromise was announced, the Associated Press released an analysis that showed HB2 was already costing the state hundreds of millions of dollars, which would have continued each year had the law remained in place.
Orange County, for example, had already lost $3.7 million in revenue due to HB2, County Commissioner Penny Rich told Vox. The loss had come from conferences, corporations, associations, organizations, and foundations passing on Orange County, where UNC Chapel Hill is located, as a place to hold events.
“We don’t have a whole lot of tax base,” Rich said. “We don’t have a whole lot of commercial space. So our ability to make up those losses through taxes isn’t there. So what happens is the burden is placed onto the homeowner because your homeowner’s tax is 87 percent of our tax revenue in Orange County. So if we’re not bringing in those tourism dollars, then at the end of the day, homeowners are gonna have to pick up that slack, and it’s tremendous for our homeowners who already live here.”
The NCAA’s warning the week before HB142’s passage was a clear game changer. In fact, in the process of passing HB142, several Republicans on the House floor criticized the NCAA’s influence on the process. Rep. Bart Jones, a Republican, suggested Cooper should raise two flags outside the governor’s mansion: one for the NCAA, the other a white flag of surrender.
House Speaker Moore acknowledged that some of his colleagues were motivated by the NCAA’s deadline.
“You know, I will tell you this,” he told reporters after the vote. “There was concern about was the deadline with the NCAA pushing things. And I will tell you, with me, it was not. These were discussion that we’ve been having for weeks, and — not weeks, months.”
It’s too early to say what effects this compromise will have
There were a lot of consequences to North Carolina passing HB2, many of which will have a long-term impact. Not everything will be resolved right away.
We won’t know what the NCAA thinks of HB142 until its board of governors meets next week. Over the weekend, the ACC announced that football championship games would return to North Carolina, after it also said it would pull major events from the state in reaction to HB2.
There’s also new uncertainty surrounding ACLU’s lawsuit over HB2. Despite this, the organization will continue to fight. The following statement was given to Vox from Molly Rivera, ACLU NC’s communication’s associate:
The ACLU, ACLU of North Carolina, and Lambda Legal will continue to defend right of transgender people to use restrooms and changing facilities consistent with their gender identity, as federal law requires,” the organization said. “The lawsuit, which includes claims for the damages inflicted by H.B. 2, will continue, and the legal team will seek to amend the lawsuit to challenge H.B. 142 as well.
As for North Carolina’s lawmakers, they’re eager to move their attention away from bathrooms.