Another Compromise to Dump N.C.'s Transgender Bathroom Panic Law Draws Criticism (UPDATE: Governor Signs into Law)

State still wants to keep cities from adding to antidiscrimination protections.


Peggy Peattie/ZUMA Press/Newscom

There's a new compromise to try to get rid of North Carolina's controversial bathroom-panic-inspired legislation, but it doesn't actually seem like much of a compromise, and it's not clear whether it's going to get anywhere.

To recap: North Carolina's legislature, supported by its now-ousted Republican governor, passed HB2 a year ago. The law requires that people on government property (particularly public schools) use facilities (like restrooms and locker rooms) of the sex listed on their birth certificates. That's the part of the law that got the most attention.

HB2 also blocked cities from passing their own ordinances that added new protection categories to antidiscrimination and public accommodation laws or from having higher minimum wages than what the state defines. North Carolina does not have state-level discrimination protections on the basis of sexual orientation or gender identity. Charlotte passed a law adding these protections and also requiring that transgender people be accommodated in the facilities of the sex they've chosen.

The backlash over HB2 has resulted in business boycotts against the state and likely helped contributed to the defeat of its governor in November. But while the law has invoked a lot of ire and resulted in a Democrat taking control of the governor's office, the state is struggling to figure out what to do about it.

An attempted compromise in December crashed and burned, and it might happen again with what has been hammered out and released in North Carolina this week.

Republican legislators are offering to rescind HB2 if the state passes a new, stripped down bill in its place, HB142. This bill does not include the text that controls what public facilities transgender people may use. And it doesn't tell cities they can't jack up their minimum wages. But what HB142 does keep in place is the rule that cities and counties cannot pass their own laws that add to discrimination or public accommodation laws (this component sunsets in 2020), nor can they set their own rules for gender-based access to government and school building facilities.

So the compromise here is the state telling cities that they can't meddle with their own discrimination laws, but the state still can. So technically the legislation could immediately resurrect the restrictions they put into place with HB 2 even after if they strike the law down. As such, the response to the compromise from LGBT groups has been a bit cool, to say the least. From the Washington Post:

Gay rights groups said the new bill's other elements, including the prohibition on local governments passing their own nondiscrimination ordinances, meant that it fell short of a full repeal, and they forcefully condemned the deal late Wednesday and early Thursday.

"This proposal is a train wreck that would double down on anti-LGBTQ discrimination. North Carolinians want a clean repeal of HB2, and we urge our allies not to sell us out," Chris Sgro, executive director of Equality NC, said in a statement. "Those who stand for equality and with LGBTQ people are standing strong against these antics."

The American Civil Liberties Union has been vocally opposing the compromise as well.

I've been on the record that I am not fond of states telling cities what kind of laws they can and cannot pass, even if I don't support such laws. I'd much rather states turn to the courts to have municipal laws struck down if they violate freedoms and rights recognized by state constitutions. (Read down toward the bottom of this blog post where I flesh out my concerns.)

I got a little bit of a different perspective on state vs. city rule-making during my visit to South by Southwest in Austin, Texas. In Austin, the city has used an oppressive fingerprinting law to control who may work in ride-sharing services like Lyft and Uber. As a result, the two companies have left the market (which apparently led to some disastrous experiences for visitors to the city).

At a criminal justice reform panel held at the offices of the Texas Public Policy Foundation, people (including a representative from Uber) discussed the very negative consequences of such a fingerprinting rule on the poor and on minorities who have been caught up in our extremely harsh justice system. One of the panel participants was libertarian-leaning Republican State Senator Konni Burton, who has gotten attention for possibly being the subject of a threat from President Donald Trump for her opposition to civil asset forfeiture.

Burton was on the panel because state lawmakers in Texas are considering legislation that would overrule Austin's taxi cartel-protecting fingerprinting law. So, much like what happened in North Carolina, the state of Texas is considering controlling the types of laws its cities can pass. Burton was prepared for people who think this is a betrayal of a conservative belief that government power should flow downward to the local level as much as possible. Burton explained that states were responsible for setting up the rules for both the federal government (by passing the Constitution) and the rules for their own cities. So there's nothing hypocritical about Republicans demanding that the federal government defer to state governments' control over what happens within their borders while at the same time telling cities what they can and cannot do.

That's perhaps too subtle an argument for a culture that seems to currently embrace an "ends justify the means" mentality. It is worth thinking about, though. I would still prefer that the states use a rights-based approach and the court system to keep cities from passing inappropriate ordinances, because that would also result in the state itself having to think about who its own laws effect. Why is it that the state can decide whose rights to freedom of association get compromised by anti-discrimination laws, but not the cities?

UPDATE: Right after this piece was posted, North Carolina's state Senate voted to pass HB142. It's now heading to the House.

UPDATE II: The bill has passed the House and is now heading to the governor's desk.

UPDATE III: Gov. Roy Cooper has signed the bill into law.