Monthly Archives: March 2017

The HB2 Repeal: Is It As Bad As Everyone Says?

Well, I find myself in the awkward position of disagreeing with friends, colleagues, and organizations that I respect (like the ACLU, of which I have been an active member for 24 years). That’s not fun. The issue? House Bill 142.

For those living under a rock, HB142 is the bill passed by the North Carolina General Assembly and signed into law by Governor Cooper yesterday. It attempts to repeal HB2 — the heinous “transgender bathroom bill” —  and more importantly (from some people’s perspective) appease the NCAA which has threatened to ban North Carolina from holding any tournaments due to HB2.

To read some of the headlines, you would think HB142 lines up transgender people and shoots them. “The HB2 “Repeal” Bill Is an Unmitigated Disaster for LGBTQ Rights and North Carolina” screams Slate. Reverend Barber calls it “an insult to civil rights“.  The ACLU says: “there is no repeal of the anti-trans HB2, only more discrimination“.

Really? There’s actually been NO repeal AT ALL?  There’s MORE discrimination?  What am I missing?  Am I the one who is crazy?

Quite possibly. But right now, I honestly believe HB 142 is a fairly decent compromise.  And it’s quite possible that the resistance may be overplaying this victory by casting as a loss.

Those who do this are wrong in my view.  HB142 is not HB2.0.

Let’s get a few things out of the way:

First, this was always going to be a compromise bill. Republicans rule the North Carolina General Assembly.  So if you expected a civil rights bill ON TOP OF a repeal of HB2, then somebody sold you a lie.  And it wasn’t Governor Cooper. Now, it is perfectly reasonable to demand that the law protect transgender people (as well as gay, bisexual, queer, etc. people). *I* demand that. But those things do not come in a day.  They just don’t. We’re STILL working on racial inequality for crying out loud.  The exercise here — with this bill — was not to get the law to protect transgender people, but to get the law to stop discriminating against them.  So if you are in the “all or nothing, today” camp, stop reading, because I practice the art of the possible, and nothing I say going forward will please you (in fact, it will likely infuriate you).

Secondly, to those who say that HB 142 doesn’t do enough — well, of course not. Again — it is a compromise bill. I have no reason to think that Roy Cooper or Senator Jackson or the others did not hammer out the best deal possible.  Again, it wasn’t intended to resolve the issue of transgender rights for all time.

Finally, I personally could not give a damn about the NCAA and where tournaments are held. I think the loss of jobs to the state are, and should be, a concern.  Same with the loss of state “prestige”. But the bottom line for me is civil rights. For me, that overshadows everything.  That’s the yardstick I am using here to measure the success, or lack thereof, of HB142 in comparison to HB2. So please don’t question my motive. I want what the ACLU and the LGBTQ community and all lovers of civil rights want – full stop, period.

That said, HB2 is dead. Can I get an “amen”?

Bueller?

Bueller?

If you read some of these articles (or scan the headlines) you would think HB2 is not dead, or that it had been supplemented with worse stuff.  So let’s break this down and discuss what HB142 — now the law — actually does.  Because it’s short, I’ll insert the entire text:

Okay, so is HB2 repealed? Yes. It’s right there in English.  Section One. Statutory Laws 2016-3 — which is HB2 — is repealed.  Click the link. Read what HB2 was.  It was a lot!  It’s gone now.

So let’s move to the NCAA gripes, because it was in plain non-legalese English, and it will help explain what is no longer.  Here, specifically, is the reason the NCAA singled out North Carolina for the proposed ban (from the NCAA website):

The board stressed that the dynamic in North Carolina is different from that of other states because of at least four specific factors: 

  • North Carolina laws invalidate any local law that treats sexual orientation as a protected class or has a purpose to prevent discrimination against lesbian, gay, bisexual or transgender individuals. 
  • North Carolina has the only statewide law that makes it unlawful to use a restroom different from the gender on one’s birth certificate, regardless of gender identity.  
  • North Carolina law provides legal protections for government officials to refuse services to the LGBT community. 
  • Five states plus numerous cities prohibit travel to North Carolina for public employees and representatives of public institutions, which could include student-athletes and campus athletics staff. These states are New York, Minnesota, Washington, Vermont and Connecticut. 

The second and third factors are gone. HB142 wiped them out with the stroke of a pen.  The fourth factor relies on those other cities, but they will presumably permit travel to North Carolina now.

That’s not nothing.  That’s something.  That’s a victory.  Can we acknowledge that?

To be sure, it returns us to the status quo — i.e., the time Charlotte’s ordinance protecting those with non-conforming gender identity. Is the government working to protect the transgender community from discrimination?  Nope.  But now the government is not doing the actual discrimination itself, and, yes, that is big.

It’s like desegregating the public water fountains, even though the business-owned lunch counters remain segregated.  It’s NOT “nothing”; it’s NOT “worse”. It’s an improvement.

What about the NCAA’s first factor and the argument that HB142 does not allow Charlotte and other communities to pass laws protecting the transgender community (at least until 2020)?  I shake my head at that argument, and this is where I think most people have it wrong. We shouldn’t WANT local municipalities to have the power to “enact or amend an ordinance regulating private employment practices or regulating private public accommodation”.

Why not?

Because hundreds of communities in North Carolina will take the opportunity to stick it to the LGBTQ community.

What’s the point of repealing HB2 if Apex, North Carolina (for example) can turn around and pass its own version next week?  You see, not every community in North Carolina is as enlightened as Charlotte or Raleigh or Asheville.  In fact, most aren’t (drive through East Carolina one day).  And LGBTQ people are everywhere in North Carolina. Taking legislative power away from local municipalities was a feature, not a bug.

Also, it is better off if the battlefield is the state legislature — ONE state legislature — rather than hundreds of cities, town, incorporated settlements, etc.  The “resistance” lacks the resources to fight the transgender discrimination issue in every NC municipality and win. Leaving invidious prejudicial treatment to the whims of local legislatures would allow pockets of prejudice to exist for decades (see, for example, the school district in Mississippi which finally became racially desegregated this month!)

What happens in 2020, when the prohibition is lifted?  In truth, it matters little.  The provision to kick the can down the road wasn’t meant to postpone justice.  And it certainly wasn’t meant to postpone injustice.  It just acknowledges reality — that no matter what the state legislature does, it will end up in the courts, as everything does with civil rights.

Put another way — you’re not going to end discrimination against the transgender community completely until a court says so. End of story. You can’t legislate “equal protection under the law” because it is a constitutional/legal issue, not a political one.  And by 2020, these issues will have been worked out.

Yes, it is true that repealing HB2 probably killed North Carolina lawsuits against HB2 (rendered them moot).  But there are plenty of other lawsuits out there, most notably, Grimm v. Gloucester County School Board, regarding the 17 year old transgender male student in a Virginia high school. Sent back down to the Fourth Circuit from the U.S. Supreme Court a few weeks ago, it is likely to go back up as soon as the Fourth Circuit decides (both sides are likely to appeal).  And the outcome there will govern what happens in North Carolina — mostly likely in 2019.

So what do we have to be upset about?  HB2 is no more. HB2-like discrimination cannot sneak in through the back door via local legislatures.  And everything is on hold until the courts resolve this, which they were going to do anyway.  It hasn’t slowed down the litigation track.

“Justice delayed is justice denied” is a maxim used by Martin Luther King, Jr., but dates back to William Penn and even the Magna Carta. I wholly acknowledge that transgender people have every reason to be anxious and upset that the guarantee of their civil rights were not met on March 30, 2017.  I don’t know who or what led them to believe the a Democratic governor in a mostly-conservative state could deliver them their rightful legal protections in one fell swoop.

But if they are angry, then I say good.  They need to be; everyone needs to be.  But nobody should feel defeated by HB142, as many do.  The system works, albeit slowly, and if you don’t remind people every once in a while of their victories, then cynicism wins.  And when cynicism wins, corruption and prejudice is not far behind.

This goes in the win column, and we need to remain vigilant. THAT’S my point.  I ask permission to revise and extend my remarks as needed.