RALEIGH — Legislation passed in a tense, terse legislative session Thursday may have ended the law known as HB2, but the controversy and political heat it generated over the past year, including intense criticism of its replacement, is far from over.
Civil rights groups continue to excoriate Gov. Roy Cooper and Democratic legislators who signed on to what was dubbed a reset, brokered in 11th-hour negotiations between the governor and the General Assembly leaders ahead of an NCAA deadline.
The new law, which the governor signed Thursday afternoon, shortly after clearing its last vote in the state House, repeals HB2, delegates all power to regulate public restrooms and changing facility policies to the state legislature and establishes a moratorium preventing municipalities from enacting new non-discrimination ordinances or amending existing ones until December 1, 2020.
Rep. Chuck McGrady, R-Henderson, who has been working on replacement legislation for HB2 since last summer, said the negotiations tried to solve three core items: repeal of HB2, a pre-emption giving the state authority over multi-stall bathrooms and changing rooms, and the disposition of local non-discrimination ordinances.
The end result got the first two, he said, but negotiators could not come to an agreement on what to do about local ordinances and decided to take a step back.
“They call it a moratorium, but it’s basically a time out on NDOs for a while, because we realized we needed to take action on House Bill 2 itself,” he said.
McGrady, one of the chief budget writers in the House, said like most of his colleagues he’s also ready to move away from the HB2 controversy.
Reinstating anti-discrimination measures
Although the bill prevents new non-discrimination ordinances, the repeal of HB2 reinstated non-discrimination ordinances in 16 cities, including Asheville. Those laws were pre-empted by a statewide non-discrimination law in HB2, which did not include LGBT rights.
An analysis of the impact of the legislation on local governments contracts by the UNC School of Government published last week said H142 means the repeal of a prohibition on cities and counties from imposing non-discrimination requirements on contractors and bidders.
Asheville Mayor Esther Manheimer said overall this represents a much-needed compromise.
“I have reviewed the bill and talked with mayors and legislators in North Carolina,” she said. “The bill represents a compromise between the legislature and the governor. I applaud their ability to come to an agreement and see it through to passage.”
Rush to a reset
Like HB2, H142, once introduced, became law in less than a day.
The legislature and the governor, up against a hard deadline from the NCAA and under pressure from business leaders to make the change, entered into the reset agreement reluctantly and only after a flurry of last minute bargaining, including direct negotiations between Cooper, Senate leader Phil Berger and House Speaker Tim Moore, who announced an agreement after a meeting at the Executive Mansion Wednesday night.
By 8 a.m. the next morning a dozen protesters were in front of the Executive Mansion greeting Democratic legislators they arrived for a meeting with Cooper.
While the deal was met with loud disagreement outside, inside the legislature it was received in an unusually subdued atmosphere.
It landed in the Senate Rules and Operations Committee at around 9:45 a.m. Thursday, where language in a bill already passed by the House was gutted, replaced with the agreed upon legislation and retitled “Reset of S.L. 2016-3,” the session law number for HB2.
The only senators to speak on the legislation were Berger and Senate Minority Leader Dan Blue, D-Wake, who asked his members to support the reset bill despite concerns about the moratorium. The committee heard from four speakers, including representatives of EqualityNC, the North Carolina ACLU and the conservative Family Values Coalition who were all opposed to the bill.
No senators offered comment in the meeting and a voice vote sent House Bill 142 to the Senate floor.
Debate there, too, was swift and subdued.
After a 32-16 vote, the reset bill moved to the House, where debate lasted longer than leaders on both sides expected after some of the chamber’s most conservative members pushed for a delay in the vote until Tuesday. They eventually lost on a procedural votes.
Many Democrats joined the conservative Republicans in opposing compromise. Democrats who said they could not vote for the bill, cited its codification of discrimination by not allowing new non-discrimination ordinances to move forward.
“This is an accountability moment for all of us,” Asheville Democrat Susan Fisher, said during the House debate. “I don’t vote to discriminate against other citizens of North Carolina.”
The 70-48 vote in the House was not as close as many had predicted, but the tally illustrated the split in both Democratic and Republican caucuses. In all, 30 Democrats voted for the bill and 15 against. Republican were also split, with 40 for and 27 for against. Despite the overwhelming Republican majority, the measure could not have survived without those Democratic votes.
The WNC delegation was divided as well, even within the solidly Democratic Buncombe County delegation with Reps. Brian Turner and Fisher voting against the bill and Rep. John Ager and Sen. Terry Van Duyn voting for the bill.
Other WNC legislators voting yes included Rep. Mike Clampitt, R-Swain, Rep. Kevin Corbin, R-Macon, and Sen. Jim Davis, R-Cherokee. Other no votes were Rep. Josh Dobson, R-McDowell, Rep. Michele Presnell, R-Yancey, and Sen. Ralph Hise, R-Madison.
LGBT organizations respond
LGBT rights organization says the issue is far from settled.
The ACLU, ACLU of North Carolina, and Lambda Legal announced after passage of H142 that they would seek to amend a lawsuit challenging HB2 to add the new law.
“Lawmakers replaced a bad bill with another bad bill. This fake repeal is an attempt to silence LGBT people,” said Simone Bell, southern regional director at Lambda Legal.
“It is shameful to stamp a start date on equality. We demand a full, clean repeal, and that includes comprehensive non-discrimination protections.”
Ames Simmons, Equality NC’s Director of Transgender Policy, called the reset bill vote “deeply disappointing.”
He said the organization would continue to organize and push for equal rights in the state and continue to educate legislators on the LGBT community.
“Our mission hasn’t changed and we surely are not going away,” he said.
Conservative activists also pushed back against the legislation and the pressure by the NCAA and business interests.
Tami Fitzgerald, Executive Director of the North Carolina Values Coalition, said legislators were under increasing pressure to repeal HB2.
“They’ve been bullied and beaten up for months by the NCAA and corporate interests,” she said. “The pressure on them has been great, but I do believe they let the people of North Carolina down today.”
Local government leaders supportive of LGBT rights, including Manheimer, expressed disappointment about this aspect of the bill.
“I am also very aware of the continuing civil rights implications that remain even after the passage of this bill,” Manheimer said. “That is why Asheville will continue to be an open and welcoming place for all people and we will strive to set an example of providing a safe and supportive environment for our residents and visitors.”
What’s next
In an interview with Carolina Public Press, Van Duyn said like the governor and many of her colleagues, she is hearing a lot of outrage over her support for the reset bill. She expects it to take considerable time and effort to repair the damage.
Van Duyn said although said she thinks the deal was the right thing to do under the circumstances, trying to say the reset bill isn’t as bad as it’s being portrayed isn’t helping.
“If you’re a discriminated-against minority, that is not what you want to hear and I get that,” she said. “They are brokenhearted. They feel I’ve abandoned them and I just need to own that and redeem myself in the only way that’s available to me and that’s by continuing the fight.
Like the governor, who called the reset bill a first step, Van Duyn said H142 can’t be a stopping place. She said there will likely be a push for legislation expanding local government authority to enact non-discrimination ordinances, but for now doesn’t give it much of a chance.
For the organizations that fought bitterly over HB2 and for entirely different reasons opposed H142, the next decision to deal with is from the NCAA.
Mark Emmert, the organization’s president, said late last week that the new law would be reviewed by the NCAA board of governors and there could be a decision on this week.
On Friday, the Atlantic Coast Conference said it would once again allow North Carolina locations to bid on championship games.
As a decision nears, the Human Rights Campaign and other organizations are stepping up pressure on the NCAA to reject North Carolina’s new legislation.
Conservatives also are putting pressure on the organization for its involvement. During House debate, several legislators hammered the NCAA, saying legislative leaders wouldn’t have forced a vote if not for a deadline from the organization.
Fitzgerald said her organization would continue to push for privacy protections and is contemplating what action to take push back against the NCAA and other sports organizations.
“We do not believe it’s proper for the public policy of this state to be determined by big out-of-state corporations like the NCAA and the NBA. It sets a dangerous precedent.”
She said the organizations are monopolies and “ought to be sued for anti-trust violations.”
Asked whether her organization is considering such a fight, she said: “I don’t know, but we’ll explore it.”
McGrady said he’s opposed to boycotts and didn’t appreciate the pressure from the NCAA, but he was more upset with other states that tried to use HB2 to poach North Carolina business.
Both the governor and General Assembly leaders are confident the state will regain its status as a host state.
In a press conference following last week’s vote, Speaker Moore said business leaders who have been in discussion with the NCAA had told him that the new law would be met with approval.
Moore said the passage of H142 puts the state on equal footing with laws in other states and North Carolina shouldn’t be treated any differently.
He also expects to there to be more legislation addressing the tensions between the legislature and local government authority this year. Discussions on how to resolve the issue of local non-discrimination ordinances will continue during the moratorium.
“We’ve got until 2020 to work this out,” he said.
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