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North Carolina Lawmakers Fail to Repeal Controversial Bathroom Bill

Underscoring the precarious position in which the LGBT community is situated with respect to their rights, state lawmakers adjourned a special session before any decision could be reached.

By Kate Wheeling


The ‘We Are Not This’ slogan is posted at the entrances to Bull McCabe’s Irish Pub in Durham, North Carolina. (Photo: Sara D. Davis/Getty Images)

Today, the North Carolina legislature held a special session to repeal the Public Facilities Privacy & Security Act, better known as HB2, a law that curbed legal protections for LGBT residents in the state. At least, that was the idea—until Republican lawmakers stalled the repeal efforts.

The controversial law was implemented in March, in response to an anti-discrimination ordinance passed by the city of Charlotte that would have allowed transgender people to use the bathroom that matched their gender identity rather than their birth certificate. Charlotte had to repeal its own local ordinance in order to convince state Republicans to repeal HB2, which the city did on Monday. But state officials became spooked on Tuesday when it became clear that Charlotte had only partially reversed the ordinance. The city’s bathroom provision was reversed on Monday, but a provision that prohibited discrimination in public contracts in Charlotte was left in place — until it, too, was repealed Wednesday morning. Still, not everyone was satisfied, and state lawmakers failed to reach an agreement to repeal HB2 on Wednesday afternoon when representatives voted to adjourn the special session.

“It seems like a small thing, but it’s not,” David Lewis, a Republican and House Rules Chairman, told reporters on Wednesday. “We’re trying to act in good faith, and if it was a legitimate mistake that Charlotte made, that’s one thing. If it was something else, that really hurts my ability to stand up and tell members it’s a reset. We’ve said all along we think reset is the way to go.”

Despite activists’ hopes, a repeal now appears to be out of reach.

“HB2 has been a black eye on the state, negatively impacted the economy and sent a negative message about where North Carolina stands on discrimination,” Erika Wilson, a law professor at the University of North Carolina, writes in an email exchange.

“HB2 has been a black eye on the state.”

After Governor Pat McCrory signed the bill into law, companies abandoned plans to expand in the state, performers canceled shows, and sports eventswere moved to alternative locations — all of which appeared to play a major role in lawmakers’ motivation to repeal the law. As Jared Kellerwrote in April, “In politics, money talks, and corporations have a much louder megaphone than any lobbyist or political action committee could hope for.”

A full repeal of HB2 would not have reversed all of its damage. In addition to the discriminatory bathroom provisions, HB2 contained provisions that blocked local anti-discrimination ordinances and the ability to sue under state anti-discrimination laws. A later bill — HB169 — restored the right to sue for employment discrimination in state court, but it restricted the time period people have to sue to one year. (Before HB2 the statute of limitations to sue for such cases was three years after the discrimination took place.) Even repealing HB2 would still leave HB169 — and the shorter statute of limitations — in place. “This is a loss from a legal perspective,” Wilson says.

A repeal may not have been the win for the LGBT community that it seemed on the surface. “In some ways it makes it appear as if LGBT rights are being used as a bargaining chip for improving the state’s economy,” Wilson says. “It shouldn’t have to be an either/or proposition. In an ideal world, HB2 would be repealed and Charlotte would be free to enact its anti-discrimination ordinance. The fact that this essentially came down to a quid pro quo underscores the precarious position in which the LGBT community is situated with respect to their rights.”

The whole ordeal, coupled with the fact that Republican leaders in North Carolina voted to limit the power of Governor-elect Roy Cooper (a Democrat) does little to inspire confidence that the state’s Republican lawmakers really have anyone’s best interest at heart but their own.