Opinion: The Big Post-HB2 Question

Can we count on the legislature not flexing its muscle again?

SO THIS, to me, is the large, nagging question that hangs over North Carolina now that House Bill 2 is null and void and House Bill 142 is enshrined as its successor: Is the new law a genuine step forward or just a mirage of one?

I’ll put it another way. Does the new law prevent the General Assembly, with its veto-proof Republican majority, from knocking down local governments’ attempts to extend basic protections to gay and transgender people?

There are a bunch of other questions, too—whether the repeal will satisfy the NCAA and NBA and bring sporting events back to the state; whether this helps or hurts Democrats’ efforts to cut into the GOP supermajority; whether Governor Roy Cooper made the best strategic move he could under the circumstances or got rooked into an outright capitulation; what it means for Charlotte that Mayor Jennifer Roberts labeled the compromise “false repeal” minutes before the city government released an official statement praising it. We can examine those later.

But all of this, from the moment last February when the Charlotte City Council voted to expand its non-discrimination ordinance, rests on one foundational fact: the subservient relationship in North Carolina of local government to the state. During a press conference Thursday afternoon, Cooper stressed that House Bill 142 allows local governments to adopt LGBTQ protections “today” that House Bill 2 had prohibited. Specifically, Cooper said, local governments can extend such protections to its own employees and make them a condition for private companies they hire as contractors.

Can they? The new law specifically prohibits anyone but the General Assembly from regulating access to bathrooms, showers, and locker rooms. It also prohibits local governments from adopting or changing ordinances that regulate “private employment practices”—meaning, in effect, that businesses can fire or refuse to hire someone who’s gay or transgender—or regulating public accommodations, which means that hotels, restaurants, and theaters can legally deny service to gay and transgender people. Under the law, that second section expires on December 1, 2020, which happens to be the next gubernatorial election year.

But the new law doesn’t change the fundamental relationship between the state government and local ones, including Charlotte’s. If local governments can now adopt LGBTQ protections for their employees and as a condition for hiring contractors without risk of state nullification, it’s not written in the law. If local governments can expand their ordinances or adopt new ones to prohibit discrimination against LGBTQ people after 2020, as Cooper said Thursday they could, the law doesn’t make explicit that the state can’t nullify those, either. The law doesn’t prevent the legislature from extending the deadline. Even if it did, legislators could change the law again as long as they had the votes. As has always been the case, they’re in a position to do whatever they want, as much as any legislative body in the country.

So at the very least, people ought to look at this compromise with a healthy dollop of skepticism. (I understand that many people in and outside the LGBTQ community look at it with pure disgust, and I don’t blame them.) One of the few sure things this law does is buy the state, and the Democrats, time: to perhaps stand on more solid ground in recruiting businesses and bringing concerts and sporting events back, and to build support to gain ground in the General Assembly in 2018 and 2020. But there’s another problem. Cooper and Democrats statewide were elected on a promise of HB2’s clean repeal, and the governor and 39 legislative Democrats on Thursday settled for something less. That would make any voter wonder what difference it makes.