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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.

RestroomPeggy Peattie/ZUMA Press/NewscomThere'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.

Photo Credit: Peggy Peattie/ZUMA Press/Newscom

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  • WakaWaka||

    You must not know much about this bill. Charlotte is the one that was concerned with where people piss. The State overruled them and said you can't dictate bathroom policies to business. Can you go back to Vox now?

  • John Galt II||

    WaakWaka lies through his teeth on what the state did. Typical from the authoritarian right.

  • Fist of Etiquette||

    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.

    Maybe they're not done fundraising off the law.

  • Crusty Juggler - #2||

    Re the alt text: a tight a-line skirt accentuates my greatest assets - my shapely legs and toned bottom - so I shall continue to stroll about in half a dress no matter what some WHITE MAN thinks.

  • Crusty Juggler - #2||

    It is a really funny show.

  • Diane Reynolds (Paul.)||

    So, much like what happened in North Carolina, the state of Texas is considering controlling the types of laws its cities can pass.

    This is one of those discussions that always ALWAYS comes down to what the restrictions are, and what the laws are.

    Generally speaking, I'm all for a state overriding cities IF the state is trying to protect a freedom, generally defined as relaxing a restriction-- or maintaining a relaxed atmosphere. If a state demands municipalities keep restrictions in place, then I'm going to be against state interference.

  • ||

    I like the part where the repeal pretty much lets cities tax or wage inflate the shit out of any business they see fit, public accommodations/protections be damned, and we pretend that the real threat to liberty is that the state might force people to pay attention to the paperwork when bathroom conflicts arise.

    Free association equally for all at $0.45 on the dollar. It may end up being $0.35 for some, $0.55 for others, but what's really important are the things you can't put a price on. Like the freedom to mismatch matching your birth certificate and the sign on the door of the room you pee in.

    "Peniletax" satire? End game? You decide.

  • Tony||

    So it really is "states' rights" rather than "local control" to the genital police (R). Wonder why that is. Don't want progressive cities getting tempted to free their slaves?

  • NotAnotherSkippy||

    Just as long as they keep sending 40% of their work product so you can spend it for them, right?

  • Mickey Rat||

    What the pprigressives want here is enslaving more to their incoherent workdview.

  • John Galt II||

    What the pprigressives want here is enslaving more to their incoherent workdview.

    Says the rightwing fascist. FUCK individual liberty!!!

  • Mickey Rat||

    What the pprigressives want here is enslaving more to their incoherent workdview.

  • John Galt II||

    What the pprigressives want here is enslaving more to their incoherent workdview.

    Says the rightwing fascist. FUCK individual liberty!!!

  • Mickey Rat||

    Who made Shackford the arbiter of what conservatives believe and which beliefs they prioritize?

    Also, Shackford want a weak single layer of check s and balances against obnoxious legislation ratger than a robust multilayered approach.

  • Mickey Rat||

    Yes, I am reading his mind by reading the words that he wrote.

  • John Galt II||

    Who made Shackford the arbiter of what conservatives believe and which beliefs they prioritize?

    Read it again.

  • ||

    OT: The 'do nothing' solution to the problem of public commons at work.

    Apparently, Brazil is reporting a >10-fold reduction in microcephaly from the previous year despite an 'outbreak' just as large as the previous year.

    Good thing we didn't go with the scientific standard of imposing solutions from the top down, you know, as a precaution.

  • WakaWaka||

    Libertarians for more protected class status? Good grief

  • Azathoth!!||

    I hate talking to you, Hihn, but this had to be said--

    Trannies have been using the bathroom of choice for decades, Nobody noticed or cared.

    Exactly.

    Then the Chriso-Fascists found out and went bat-shit crazy with lies for their puppets

    Not exactly.

    You left out a step.

    Trannies have been using the bathroom of choice for decades, Nobody noticed or cared.

    Then, SJW busybodies decided that this needed to be coded into law--at the expense of private property rights because the discrimination that wasn't happening--as noted here--

    Trannies have been using the bathroom of choice for decades, Nobody noticed or cared.

    .....might suddenly start happening.

    THEN,

    .... the Chriso-Fascists found out and went bat-shit crazy with lies for their puppets
  • Chili Dogg||

    "The puppet is you." Seriously? That's all you got? LOL! Weak...

  • B.P.||

    "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."

    See also states with cities that have enacted a patchwork of gun laws, making it impossible for someone to drive to the gun range with a firearm.

  • Diane Reynolds (Paul.)||

    See my post above. The State of Washington forbids the municipalities or counties from passing gun laws more restrictive than the state. That has been the ONLY thing standing between the Totalitarian Red Shirts in Seattle from curb stomping the populace.

  • Zeb||

    There are a lot of problems that would come from every municipality being able to make it's own laws and rules about everything. Especially when they are more restrictive than state laws. It's hard enough to know all the laws of the state you are in.

  • Mickey Rat||

    States are sovereign entities, cities are not. The relationship between the states and the locsl governments is not analogous to the relationship between the states and the federal government.

  • WakaWaka||

    Bingo.

  • loveconstitution1789||

    Oooh. That's a Bingo.

    You just say Bingo.

  • Rebel Scum||

    The relationship between the states and the locsl governments is not analogous to the relationship between the states and the federal government.

    This.

  • Redcard||

    The recap misses ONE important event that preceded HB2.

    Charlotte (local govt) passed laws protecting transgenders.

    So all this bullshit repeal does is undoes that, just like HB2 did. What would be the point?

  • Scott S.||

    "Charlotte passed a law adding these protections and also requiring that transgender people be accommodated in the facilities of the sex they've chosen."

  • Bubba Jones||

    I don't think it's unreasonable for a State to have a uniform regulatory policy.

    What is the minimum wage for a sales rep who lives outside the city, but sees clients both inside and outside the city limits?

    Likewise, I think it's ok for the State to let SF or Seattle jack up their minimum wages.

    Pretty much all economic activity crosses city lines.

  • Chili Dogg||

    At least he's not Hihnsane.

  • Average Guy||

    State laws give cities their guide lines of what they can and can not do in making law right? Can they write laws with out approval of the state?

  • Longtobefree||

    Exactly where did you go to school?

  • damikesc||

    Given that cities get their authority solely from the state they exist in, the state has the right to deny them the authority to do that.

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