How should we view North Carolina’s repeal of HB2, the so-called Bathroom Privacy Act?
It’s true that the state caved to the bullying tactics of the NCAA. But was it a complete capitulation? On one hand, the legislators took a step in the wrong direction. That’s why conservative organizations like ADF and FRC condemned the repeal. On the other hand, the legislators pushed back against LGBT activism. That’s why LGBT groups condemned the new bill. How do we sort this out?
Did North Carolina Give in to Bullies?
Let’s start with the negative.
Since the day HB2 passed, North Carolina has been bullied by big business, the media, and the world of sports and entertainment. “If you don’t repeal this mean-spirited bill, we will take our business elsewhere!”
Judging by the news reports, you’d think the state’s economy was floundering because of this pressure. The economy is actually thriving. It’s receiving some of the highest ratings in the nation in terms of overall health. As Lt. Gov. Dan Forest explained, the boycotts cost the state roughly one-tenth of 1 percent of its economy.
Why, then, did some legislators cave in when the NCAA gave them a 24-hour deadline to repeal HB2? Was it the bad publicity? Was it the importance of having these major college events brought back to the state? (After all, North Carolina just won the NCAA college basketball championship this week.)
Whatever the motivation, the capitulation seemed cowardly, as if money was more important than morality and popularity more important than principle.
As expressed by Kellie Fiedorek of ADF:
Sadly, North Carolina has failed families by giving in to hypocritical bullies like the NCAA and billion-dollar corporations. Every North Carolinian deserves to have their privacy respected in intimate settings like locker rooms and restrooms. One of government’s essential duties is to protect the citizens it governs, not to create uncertainty about whether showers and locker rooms will still be safe for women and girls. North Carolina’s economy is booming, so the state should not let the NCAA and others dictate the state’s policies and sell out their citizens’ interests based on flat-out lies about an economic doomsday that never happened.
LGBT Activists Didn’t Get What They Wanted
Still, things are not all bad. As former NC governor Pat McCrory explained, LGBT activists “did not get a full repeal of HB2.” (According to the HRC, McCrory’s support for the state’s compromise was a “kiss of death.”)
That’s why the editorial board of the left-leaning Charlotte Observer wrote:
Legislators and Gov. Roy Cooper hailed Thursday’s HB2 repeal bill as a compromise. In fact, it is nothing of the kind. It is a betrayal of the promises the governor made to the LGBT community and an entrenchment on discrimination by Republican legislators who have backed it all along.
Referring to the new bill, HB 142, the editors opined,
House Bill 142 literally does not do one thing to protect the LGBT community and locks in HB2’s most basic and offensive provision. It repeals HB2 in name only and will not satisfy any business or organization that is truly intolerant of an anti-gay environment and of a state that codifies discrimination.
HB2’s most fundamental requirement was that local governments cannot pass anti-discrimination ordinances that govern public accommodations such as restaurants and hotels. Under Thursday’s agreement, that is still true, until at least December 2020.
(For discussion on exactly what this compromise bill does and does not do, see here.)
Return to the Status Quo
So where does this new bill leave us? How should we respond?
When it comes to bathroom privacy, the biggest thing the bill does is return to the status quo of 2015. This was before the Charlotte City Council passed a radical bill that would have in effect rendered all public bathrooms and locker rooms gender neutral. (This applied to public schools as well.)
As explained by law professor Greg Wallace, before “the Charlotte ordinance that sparked the debate, there were no laws regarding bathroom usage. If a man went into the women’s restroom, or vice versa … he’d likely be asked to leave, and if he refused, he could be arrested for trespassing.”
But, says the Charlotte Observer, “the legislation dodges the whole bathroom question. Charlotte’s ordinance allowed transgender individuals to use the public bathroom of the gender with which they identify. HB2 banned that. The new law does not specify what transgender people are to do.”
And that brings us back to where we were before 2016, which is not such a bad place.
Were there numerous instances of men posing as women in order to invade the ladies’ bathrooms and locker rooms? Not to my knowledge.
Were there male-to-female transgenders who appeared to be female getting kicked out ladies’ bathrooms? Not to my knowledge.