Controversial North Carolina Bathroom Law Flushed

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By Andrew M. Ballard

North Carolina repealed and replaced a controversial 2016 law that restricted transgender people’s access to public accommodations and limited local nondiscrimination mandates.

The move to get rid of H.B. 2 occurred in the face of mounting economic pressure on the state and the loss of major collegiate sporting events for the next several years. The legislature considered and approved a repeal bill ( H.B. 142) March 30, and Gov. Roy Cooper (D) signed it later in the day.

Although the restroom access part of the “bathroom bill” is gone, local governments are still restricted from enacting accommodation and employment ordinances. The LGBT community and civil rights groups say that will continue to allow discrimination.

Under H.B. 142, local governments are still prohibited from requiring contractors to enact nondiscrimination protections that go beyond classes defined by the state; North Carolina bars discrimination based on age, race and gender, among other things, but doesn’t ban bias based on sexual orientation or gender identity. A state law adopted in 2013 barred local wage and benefit mandates, and that remains in effect at least until 2020.

Some Resistance

Proponents of adopting the new bill generally said it represented a compromise.

Lawmakers voting against the measure voiced a number of arguments in opposition, including that the process was too hasty and that the state shouldn’t bow to pressure by the National Collegiate Athletic Association. Civil rights advocates objected that local anti-discrimination ordinances are still banned.

H.B. 142 passed the Senate by a vote of 32-16, with six of 15 Democrats and 10 of 33 Republicans voting against the measure. The House then approved the measure by a vote of 70-48, with 15 of 45 Democrats and 33 of 73 Republicans voting against it.

Citing opposition to H.B. 142 from both liberal and conservative groups, state Rep. Scott Stone, a Republican from Charlotte, told his colleagues before the vote that “the fact that both sides are opposing it probably means it’s a reasonable compromise.”

The repeal measure continues to preempt local governments from “regulating private employment practices or regulating public accommodations” until Dec. 1, 2020. It also bars local entities and colleges and universities from regulating access to multiple-occupancy restrooms and other facilities without approval by state lawmakers.

Contracting Restrictions

Kevin Murphy, an employment attorney at Van Kampen Law in Charlotte, N.C., told Bloomberg BNA that H.B. 142 would make several important changes.

There will no longer be an official position under North Carolina law about what bathrooms people must use, according to Murphy. However, he said, local governments and institutions of higher education “are forever forbidden from weighing in on that question.”

In addition, Murphy told Bloomberg BNA, the new law will restore a three-year statute of limitations for discrimination claims, which had been lowered to one year in H.B. 2. “This is important progress since the Equal Employment Opportunity Commission is still usually investigating the matter at the one-year anniversary date,” he said.

However, the bar on local nondiscrimination and wage requirements in contracts remains in effect for four years, he said.

Scott Mooneyham, spokesman for the North Carolina League of Municipalities, told Bloomberg BNA that North Carolina cities have been prohibited from putting wage and benefit requirements into vendor contracts since 2013. H.B. 2 expanded those restrictions to bar municipalities from imposing local nondiscrimination standards in contracts as well, a provision now subject to the four-year moratorium, he said.

The new law “clarifies” that municipalities can adopt broader nondiscrimination policies regarding their own hiring, Mooneyham said.

Mixed Reviews for Deal

Lew Ebert, president and CEO of the North Carolina Chamber, said in a March 30 statement that the group “thanks House and Senate leadership and the Governor for coming together to find a solution on a bipartisan basis” and now looks forward “to returning the focus to issues that will continue to secure North Carolina’s future as a competitive leader for jobs and the economy.”

Representatives of the LGBT community called the compromise “shameful” and a “sell out” of their community by state leaders.

“Lawmakers and Governor Cooper have failed to resolve the problems with HB2 by doubling down on discrimination,” Chris Sgro, executive director of the Raleigh-based Equality NC, said in a March 30 statement. “Once again, the North Carolina General Assembly has enshrined discrimination into North Carolina law.”

“LGBTQ people in North Carolina can still be fired or denied service by private actors because of who they are and no local government can do anything about it until the end of the year 2020,” Rob Schofield, research director for the Raleigh-based advocacy group NC Policy Watch, said of the new law.

The governor and state legislative leaders reached the compromise a few days after the NCAA informed them it was considering host sites for collegiate tournaments from 2018 through 2022 during the week of March 2 and that North Carolina would be excluded as long as H.B. 2 was state law.

In announcing he was signing the measure, Cooper said it would “begin to end discrimination” in North Carolina and pledged to work to gain additional protections for the LGBT community. “This is not a perfect deal and it’s not my preferred solution,” but the legislature, led by a Republican super-majority, wouldn’t accept the full statewide protections he sought, Cooper said.

To contact the reporter on this story: Andrew M. Ballard in Raleigh, N.C. at aballard@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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