The story of North Carolina’s viciously discriminatory anti-transgender bathroom laws is a complicated one.
Passed in March 2016, the first incarnation of the law—HB 2—barred transgender people from using public restrooms based on their gender identity. It also prevented municipalities from passing any of their own nondiscrimination ordinances regulating private employment practices or public accommodations.
North Carolina ostensibly fixed this by repealing HB 2 in March 2017 and replacing it with HB 142 the very same day. But HB 142 is equally bad. Last week, the American Civil Liberties Union (ACLU)—which originally sued over HB 2—continued its fight alongside Lambda Legal against the state’s discriminatory laws by seeking to have HB 142 struck down as well.
The economic effect of HB 2 on North Carolina was swift and brutal, with an early analysis showing a loss of around $500 million in the year the law was in effect, and an AP analysis projecting the state would lose $3.76 billion over the next 12 years. Staring down the barrel of such huge economic consequences, North Carolina scrambled to repeal HB 2. But in a state still dominated by Republicans (even with newly minted Democratic governor Roy Cooper), what the citizens of North Carolina got out of the passage of its replacement, HB 142, was a fake repeal of a terrible law.
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HB 142 was purported, by both Republican legislators and Gov. Cooper, to be a corrective to HB 2, but it is nothing of the sort. The law did repeal the provision that banned transgender individuals from using the public restroom that conformed to their gender identity. However, it, replaced that provision with … nothing. In other words, transgender individuals receive no protection whatsoever.
North Carolina’s legislators have wanted to frame this as a simple “reset” back to the pre-HB 2 era. There’s a huge reason that isn’t the case: Prior to HB 2, municipalities were permitted to enact their own anti-discrimination provisions. (Indeed, it was Charlotte’s passage of a law that banned discrimination on the basis of gender identity or sexual orientation in public accommodations that sparked the Republican-controlled North Carolina legislature to pass HB 2 in the first place). The ostensible reset of HB 142 left in place the provision that bars municipalities from enacting their own non-discrimination ordinances. (In what may have been an accidental bit of overreach, the sweeping text of the newly enacted law actually means that municipalities can’t extend additional protections to anyone not already covered under federal or state anti-discrimination laws—not veterans, not the elderly, not anyone.)
And, as advocates have pointed out, legislators created an environment with the passage of HB 2 that made such anti-discrimination provisions more necessary than ever. In a press release from the ACLU, Lambda Legal’s lawyers note that in enacting and enforcing HB 2, North Carolina legislators spent months creating a dangerous and unpalatable situation for transgender people:
“After publicly vilifying transgender people for more than a year, legislators can’t just abandon transgender people to fend for themselves in the toxic environment of fear and animosity that the legislature itself created. HB 142 doubles down on many of the worst harms of HB 2 and leaves transgender people in a legal limbo where they remain uniquely vulnerable to discrimination,” said Tara Borelli, counsel with Lambda Legal. “Transgender people face an impossible situation where no door leads to safety. Anyone would find that intolerable.”
That damage can’t be undone with a new law that provides no proactive protections.
Even before the passage of HB 2, 60 percent of transgender individuals nationwide reported that they avoided public restrooms out of fear of harassment, and 12 percent reported experiencing verbal harassment in public bathrooms within the previous year. One percent were sexually assaulted in a public restroom. HB 2 reinforced the myth behind much of this violence: of transgender individuals as predators set on attacking cis women in bathrooms everywhere.
In order to push back against these problems, Lambda Legal and the ACLU have added new plaintiffs, including a transgender woman who alleges that the new law does nothing to decrease her uncertainty about which bathroom she may use, nor does it alleviate her very real concerns about her safety when she is in legislative buildings. At first blush, some might think this overblown, but the ACLU’s complaint makes clear there’s a huge disconnect between what Democratic Governor Roy Cooper (who signed HB 142) and legislative Republicans think the law does:
While Gov. Cooper has stated that, as a result of the passage of H.B. 142, there currently is no North Carolina state law “barring the use of multiple occupancy bathroom facilities in accordance with gender identity,” other North Carolina officials, including North Carolina State Senator Danny Britt, Speaker of the North Carolina Assembly Tim Moore (“Speaker Moore”), and North Carolina Representative Chuck McGrady, have stated that passage of H.B. 142 ensured that transgender individuals can be criminally prosecuted for using restrooms in public buildings that match their gender identity.
When Republicans are celebrating the fact that transgender individuals can still be criminally punished simply for using the bathroom—which is not actually in the bill—you can be sure HB 142 is simply HB 2 in new clothing.
Republicans made no secret of the fact that they supported HB 142 precisely because it fails to provide any real protections, as the ACLU’s amended complaint notes:
On the day that he voted for H.B. 142, North Carolina State Representative Kevin Corbin stated that H.B. 142 “is not a repeal of HB2 …. The bill clearly states that city councils like Charlotte and other government entities CANNOT regulate access of multiple occupancy restrooms, showers, or changing facilities. Only the NC General Assembly may enact bathroom ordinances …. What this essentially means is that the restroom provision of HB2 remains.”
The ACLU added an additional plaintiff, Quinton Harper, a bisexual cisgender Black man and a longtime advocate in the fight against HIV. He served on administrative boards in two communities that considered passing anti-discrimination policies that would have protected LGBTQ people, but now those governmental entities are forbidden from passing any such policies. HB 142 forces all municipalities to conform to the retrograde beliefs of the GOP-led legislature, even if those municipalities have more progressive and humane views.
North Carolina, in enacting HB 2, created a terrible, toxic environment for LGBTQ people. When conservative legislators realized it was harming the state economically, they feigned a desire to repeal, hoping that would quiet their critics. The replacement, however, is as bad as the original, and the ACLU, Lambda Legal, and others are right to keep fighting.