HB2 May Be Gone, But Discrimination Lives on in North Carolina: Here’s the Bad News

The NCAA gave North Carolina an ultimatum: repeal the discriminatory, anti-transgender “bathroom law”, otherwise known as HB2, or lose all NCAA sporting events until at least 2022. Additional reports said the state would lose nearly $4 billion if HB2 stayed on the books. Roy Cooper, the newly elected Democratic governor, campaigned, at least in part, on repealing HB2. The law had to go.

And, it did. But only sort of.

HB2 is gone kind of like a skunk that has run away moments after he sprayed your face. The skunk itself is no longer there, but its terrible presence lingers … for a long time.

The fact is this: The repeal doesn't make transgender lives in North Carolina any better. Municipalities are still barred, until 2020 at least, from passing any local laws that protect gays, lesbians, bisexuals, or transgender individuals from discrimination. Localities are also barred from passing any laws about bathroom access. That rule does not expire, which means that cities can never pass their own bathroom access laws.

Owners and operators of restrooms in North Carolina are still free to bar transgender persons from using the facilities that match their gender identities, and when that happens–and it will happen–victims have no statutory basis under state law to sue.

So, it is not clear to me how this is better than HB2 at all.

HB2 was a broad discriminatory law, that barred any municipality in North Carolina from enacting anti-discrimination laws that protected groups not already protected by state law. Because North Carolina's anti-discrimination law excludes members of the LGBTQ community, cities like Charlotte could not protect LGBTQers from discrimination with a city ordinance. Lawyers call this “preemption.” That is, cities are preempted by the state. HB2 also overturned any such law on the books, which included Charlotte's law that allowed transgender individuals to use the bathroom appropriate for their gender identity, regardless of what “sex” was listed on their birth certificates.

The new law keeps the broad anti-discrimination preemption in place until 2020. But it retains forever the preemption provision just for bathroom access. So, not only can cities not pass laws protecting the equal rights of transgender persons until 2020, they never can with respect to bathrooms.

This is a repeal in name only. And the NCAA should stick to its guns and force a total, clean repeal. Anything less is cowing to the worst form of discriminatory animus.