Inside the Rotten Repeal of HB2

by Lindsay Gibbs –

HB2 is dead, but its anti-LGBT legacy lives on in North Carolina.

On Thursday, the North Carolina Senate voted 35–12 to repeal House Bill 2, the anti-LGBT legislation that most notably banned transgender individuals from using the bathroom corresponding with their gender identity.

Hours later, after a rousing debate, the House of Representatives also confirmed the repeal by 70–48; hours later, it landed on Gov. Roy Cooper’s (D) desk, and the simple stroke of a pen, the controversial legislation that had cost North Carolina millions of dollars, made it one of the most anti-LGBT states in the country, and directly led to the demise of Republican Gov. Pat McCrory, was dead at long last.

But notably, none of the legislators or advocacy groups that had been fighting for the bill’s repeal for over a year were celebrating.

“It’s a disappointing day,” Rep. Price Harrison (D) told ThinkProgress. “We’re on the wrong side of history. Again.”

Harrison’s frustration stems from the fact that the repeal of HB2 came along with the passage of House Bill 142, a bill that ensures the state will remain in charge of where transgender men and women go to the bathroom, and bans any cities in North Carolina from passing nondiscrimination ordinances until 2020.

This “compromise” was forced through the General Assembly in speedy fashion not because repealing the law was the right thing to do, but because the National Collegiate Athletic Association (NCAA) gave the state an ultimatum: Unless it repealed HB2 by Thursday, North Carolina would not be eligible to host championship games for the next six years.

The problem? Because the law still prohibits LGBT protections, it is unclear if it will be enough to satisfy the NCAA. During a press conference on Thursday, NCAA president Mark Emmert said the organization will announce its decision next week, noting that while some of the NCAA’s problems with HB2 have been addressed, others remain.

Rep. Cecil Brockman (D), one of two openly LGBT representatives in the North Carolina Assembly, certainly doesn’t think this should change the NCAA’s decision on the championship ban.

“From the perspective of the LGBT community, I don’t believe we have gotten rid of HB2,” Brockman said. “We’re just putting lipstick on a pig. We’re trying to dress it up and act like we’re doing something different.”

Many liberals — including prominent advocacy groups such as the ACLU, Human Rights Campaign, and Equality NC — were outraged at this “sell out” of a compromise bill that they say continues to treat transgender and gender nonconforming individuals as second-class citizens.

Meanwhile, some conservatives opposed Thursday’s events for the opposite reason: because they didn’t want to see any part of HB2 disappear.

Perhaps Senate Leader Phil Berger (R) said it best when, as he attempted to sell the bill in the state senate, he admitted, “I don’t know that there are a lot of people who are extremely happy about where we are.”

Ultimately, this was a last-second alley-oop that was only pushed through in hopes of appeasing businesses and the NCAA without offering any meaningful protections to the LGBT community. It is a failure of a repeal made possible thanks to gerrymandering, the state’s stark urban vs. rural divide, misleading public opinion campaigns, and North Carolina’s unrelenting dedication to its two religions — Jesus and college basketball.

And it’s left many of its detractors wondering how we got here, and what precedent this sets going forward.

How we got here

This all began last year, when Charlotte passed a sweeping nondiscrimination ordinance that offered extensive protections for the LGBT community. Furious with Charlotte for taking such action, McCrory decided to convene a special legislative session to pass HB2, which negated Charlotte’s ordinances (and all other local-level nondiscrimination ordinances in the state) and required transgender men and women to use the bathroom stall that matches the gender on their birth certificate.

HB2 sailed through the legislature in one day, mainly due to the bathroom part of the bill. At the time, Lt. Gov. Dan Forest (R) argued that without HB2, there were loopholes in Charlotte’s nondiscrimination ordinance that “would have given pedophiles, sex offenders, and perverts free rein to watch women, boys, and girls undress and use the bathroom.” That lie has been at the heart of the right’s indefatigable support of HB2 over the last year.

The discriminatory bill faced immediate and swift backlash, with companies such as PayPal, Deutsche Bank, and CoStar Group pulling out of expansion projects in the state, and the NCAA and ACC refusing to award the state neutral-site championship games. In the November election, Cooper narrowly defeated McCrory, primarily due to the public’s frustration with HB2.

But even with a Democrat in the governor’s mansion, Republican supermajorities in both chambers of the state legislature made it difficult to do anything about HB2. Cooper attempted to strike a deal with Republicans last December that quickly fell apart in a sloppily executed game of political chess, and there’s been a stalemate since — with Republican lawmakers refusing to support any repeal of the law, and Democratic lawmakers refusing to support a repeal bill including additional discriminatory legislation.

However, with the NCAA’s deadline looming, there was more pressure than ever before to find a compromise. After all, nobody enjoys March Madness as much as North Carolinians, and they enjoy it a lot more when it’s local.

Until the 11th hour it looked like there wouldn’t be a vote on a repeal at all, because Cooper and Republican leadership could not get on the same page. But Cooper clearly felt desperate to do something, and late Wednesday night HB142 was put forward with Cooper’s support, despite the fact that he admitted it was “not a perfect deal and is not my preferred solution.”

Since the vote had to be on Thursday morning, legislators were left with practically no time to dig through the bill and consult with their constituents, and many Democrats in the state had to scramble to decide if they were willing to go against the leader of their party. “It was a delicate balance — you want to support the governor, but not betray your values,” Harrison said.

Ultimately, Harrison was one of 15 Democrats in the House to vote against the legislation; 29 voted for it to pass. While Harrison insists she fully supports Cooper, the bill simply was too discriminatory for her to support.

“I know the LGBT community is pretty upset, and they have a right to be,” she said. “Once again, we’ve marginalized that part of society.”

A dangerous precedent

Only time will tell if this repeal does what Cooper hoped it would, and draws business and basketball back to the state. Many people are doubtful.

“It fails to protect or respect the LGBT community in the way they deserve, and I don’t think it meaningfully remedies the reason North Carolina lost sporting events in the first place,” Hudson Taylor, the executive director of Athlete Ally, said.

Now, LGBT advocates say the NCAA’s response will be crucial. If this non-repeal is enough for the organization, and it brings championship games back to the state, it could set a dangerous precedent.

“I’m worried that if the NCAA accepts this replacement at face value, it essentially tells other states and cities that they too can prevent the passage of nondiscrimination ordinances and still benefit from the sports communities,” Taylor said.

The controversy over HB2 and the NCAA all stemmed from concern for the rights of transgender men and women; at the end of the all of this, those individuals still aren’t protected under North Carolina law, and don’t have the possibility of protection until 2020.

Taylor thinks that, at the very least, the NCAA should refuse to award championship games to North Carolina until 2020, when the ban on nondiscrimination ordinances expires.

“So long as proactive nondiscrimination ordinances are prevented from being in place, North Carolina can’t guarantee that the state is a safe place for their participants,” Taylor said.

The cultural divides

From the outside, repealing the controversial “bathroom bill” may seem like it should have been a no-brainer, no matter which party you belonged to. This week, the Associated Press released a report estimating that if HB2 remained law, it could cost North Carolina at least $3.76 billion.

But to understand why the decision wasn’t so clear for many, you have to look at the makeup of the legislature.

In terms of the population of people living in the state, North Carolina is very close to an even 50/50 split between registered Democrats and Republicans. But when it comes to the state legislature, it’s a very different story. There are 74 Republicans compared to only 46 Democrats in the House, and 35 Republicans to 15 Democrats in the Senate.

Some of this stark divide can be attributed to gerrymandering that’s disadvantaged populations that tend to vote for Democratic lawmakers. Last November, a federal judge ruled that North Carolina had to redraw its districts because they had been precisely drawn in order to group African Americans together, and therefore limit their voting power.

However, North Carolina also has more rural residents than any of the other 10 most populated states in the country. These areas are overwhelmingly socially conservative. Many people in these areas simply aren’t exposed to many LGBT people, particularly transgender men or women — which means that most of their education about LGBT issues comes from fear-mongering campaigns from the Religious Right. And as the country moves toward greater acceptance of the LGBT community, these rural residents may feel some urgency to fight back; Harrison thinks that part of the support for HB2 comes from backlash to the Supreme Court’s gay marriage ruling in 2015.

Rural parts of the state are also the areas least likely to be impacted by the presence of NCAA games or big businesses coming to cities.

“We’re very much in an urban/rural split state, and I don’t think rural communities feel the economic benefits of the ACC championship games or the businesses in the Research Triangle, so they feel like they don’t have much to lose,” Harrison said.

In fact, Harrison and other legislators heard from many constituents from rural areas who were furious that the NCAA was dictating legislation in their state, and were adamant that they would “choose the safety of their daughters over their love for basketball.” Ultimately, this put pressure on Republican lawmakers to stand their ground, resist lobbying efforts from civil rights groups and businesses, and continue to support anti-LGBT legislation. And their Democratic counterparts feel powerless to stop it.

“I know we could do better and we should do better, but they have majorities in the House and the Senate and they’ve been exercising their authority,” Harrison said.

Where the LGBT community goes from here

While demographics and districting might explain the bigotry, it doesn’t excuse it. This legislation is an attack against the LGBT community, and Rep. Deb Butler (D), who makes up the entire LGBT contingent in the assembly along with Brockman, takes it personally.

Butler’s brother passed away just a few days ago. But as soon as she went back home to mourn his loss, the HB2 debate reached fever pitch again. While she was tempted to remain with her family, she was pulled back to Raleigh to go to work in the trenches, fighting for a meaningful repeal. She felt it was her personal responsibility to stand up for her community and make her voice heard. Plus, she knew it’s what her brother would have wanted her to do.

“I couldn’t let others fight my battle as I remained on the sidelines,” she said.

This has not been easy on Butler or Brockman. Butler gave a tearful speech in front of her colleagues late on Wednesday night, drained emotionally from the whirlwind week. Brockman, meanwhile, slammed a door so hard on Wednesday evening after leaving a meeting and finding out about Cooper’s backroom deal that some reporters were startled.

“I think that frustration is due to the fact that here you have the majority that’s basically straight white men who are making a decision about what your rights are,” Brockman told ThinkProgress.

He did not mince his words when discussing how disappointed he was in the outcome of the vote on Thursday.

“Right is right or wrong is wrong,” he said. “We either have principles or we don’t — we either stand for what we believe in as Democrats or we kick LGBT protections down the road.”

Butler was a bit more diplomatic when discussing Cooper’s decision to support and ultimately sign the bill, noting that he personally went up to her in front of the Democratic caucus and stressed that he would continue to fight for LGBT rights throughout his term.

“In his judgement, it was a good step forward,” Butler said. “I’m not entirely convinced it will do what he thinks it will do, but I hope I’m wrong.”

Ultimately, both Butler and Brockman feel the responsibility to keep being a voice for their communities in a state that seems hell-bent on denying their communities rights. And they want for the LGBT community to keep fighting — because there are important elections to win going forward, and it won’t take much to get rid of the supermajority.

“We’re going to remain resolute and vigilant. We’re going to persist,” Butler said. “I don’t want this to take the wind out of our sails, because 2018 is just around the corner.”

Reprinted with permission from Think Progress, a branch of The Center for American Progress