Dina Rosin (CMC ’20)
The Public Facilities Privacy & Security Act, commonly known as House Bill 2, or HB2, was passed in North Carolina in March 2016. The bill is officially called “An Act to Provide for Single-sex Multiple Occupancy Bathroom and Changing Facilities in Schools and Public Agencies and to Create Statewide Consistency in Regulation of Employment and Public Accommodations.” In essence, the bill limits protections for the LGBTQ+ community under the law and prevents transgender people from using the bathroom that corresponds to their gender identity. This is not the first time that a state has proposed a bill of this nature, termed “bathroom bills,” nor is it the first time that a bill like this has been protested. Over a year after this law was passed in North Carolina, controversy continues over the law. The Supreme Court was scheduled to hear a case on a similar bill from Virginia but recently decided not to hear it because of changes in the legal landscape. Due to the legal uncertainty surrounding this issue, North Carolina’s law sheds light on the effect of economic pressure and public opinion can have in altering laws on a state level.
Under the Obama Administration, the Department of Justice took the stance that Title VII of Civil Rights Act of 1964 protects citizens on the basis of gender identity. This meant that forcing citizens to use a bathroom that corresponds to their biological sex, rather than their gender identity, was illegal under federal law. As such, the Obama Administration threatened to pull federal funding from public schools that forced students to use the bathrooms that did not correspond to their gender identity. However, the Trump Administration has interpreted Title VII differently. The Trump Administration’s interpretation dissolved protections for transgender citizens on a federal level, allocating this responsibility to states to decide on the matter internally. This has halted serious legal challenges to bathroom bills. As aforementioned, the Supreme Court was set to hear a case regarding a bathroom bill in Virginia but has decided to vacate their decision because of the executive branch’s new position.
House Bill 186, a repeal of HB2 that is supposed to act as a compromise for Republicans and Democrats, has faced major opposition on both sides of the aisle. North Carolina, predominantly comprised of Republican lawmakers, but headed by a Democratic governor, has faced major internal controversy over HB2. The November election of last year saw the elections of candidates that supported the bill, such as the Lt. Governor Dan Forest, and candidates that promised to repeal HB2, such as Governor Roy Cooper. Gridlock has continued in the state government in part due to a referendum provision, which would allow for referenda on local nondiscrimination ordinances. Republicans support such a provision, while Democrats argue that civil liberties cannot be put on a ballot.
Athletic associations and large businesses have acted as major critics of the bill and have put economic pressure on North Carolina. Recently, Duke University and the University of North Carolina had their first-round NCAA tournament games moved out of the state in response to the bill. The NCAA has even directly warned North Carolina that the state will lose all championship athletic games through 2022 if HB2 is not repealed. In July of 2016, it was announced that the NBA All-Star game would be moved from Charlotte, North Carolina, fully due to the league’s intense criticism of the law. It has been estimated that North Carolina has lost at least $630 million in business between March 2016 and November 2016 alone, which is believed to be at least partly attributed to HB2’s controversy. Financial services firms, such as PayPal and Deutsche Bank halted plans for expansion, costing the state 400 new jobs that would have generated $109.2 million in new economic activity. The negative economic impact of HB2 has certainly not been lost on voters. 64% of voters think “ending House Bill 2’s economic impact” is more important than enforcing the law.
The NCAA is set to announce the final decisions on sites of its championship events on April 18, 2017, and North Carolina was not going to be on the list unless HB2 is repealed. On March 30, 2017, North Carolina lawmakers voted to repeal HB2, in large part due to pressure on the state from the NCAA and big businesses. This suggests that though federal protections may shift with the different administrations, public opinion and economic pressure can be an effective tool towards political change. Despite the vague legal standing of LGBTQ+ rights under the Trump administration, states will likely continue to receive pressure to provide equal protection for all citizens.