Racing Against the NCAA's Clock, North Carolina Passes New Transgender Bathroom Law

by | March 31, 2017

By Craig Jarvis, Colin Campbell and Lynn Bonner

North Carolina's General Assembly on Thursday approved a compromise bill that repeals House Bill 2 but restricts anti-discrimination ordinances in cities and counties.

Gov. Roy Cooper signed the measure into law. He told reporters the bill was not a perfect solution, but represented an important step in repairing the state's reputation.

"In a perfect world, with a good General Assembly, we would have repealed House Bill 2 fully today and added full statewide protections for LGBT North Carolinians," Cooper said. "Unfortunately our super-majority Republican legislature will not pass these protections. But this is an important goal that I will keep fighting for."

The Democratic governor negotiated the compromise with the Republican leaders of the legislature, House Speaker Tim Moore and Senate leader Phil Berger.

"It was a very measured approach," Moore told reporters. "I think this bill, as written, is also something that is very defensible in court. I think it's something the public supports. No one is 100 percent happy, but I would say I'm 95 percent happy."

Opposition and support did not fall along party lines in either the House or the Senate, as advocacy groups on the left and right criticized the measure. Some of the most liberal Democrats and conservative Republicans voted against it.

The Senate voted 32-16 in support. In the House, the bill passed 70-48.

Joining Berger and Moore, Senate Democratic Leader Dan Blue of Raleigh and House Democratic Leader Darren Jackson of Knightdale threw their support behind the measure.

Jackson said the result of the repeal is that transgender men and women can use the restrooms of their choice without fear of being prosecuted.

"It had become clear that our timetable was almost over, and if we were going to act, we needed to act soon," Jackson said after the votes. "This is not the deal I would have written, but it's the best deal we could get."

The NCAA reportedly had set a deadline of Thursday for North Carolina to change the year-old state law or be excluded from consideration for hosting postseason games through 2022.

Whether the repeal and attached provisions will be sufficient to put the state back in contention to host NCAA sports championships remains to be seen. Moore told reporters after the session that business leaders who have been intermediaries in recent negotiations have told him this version of the bill would satisfy NCAA concerns.

Cooper said the law is about more than jobs and sports; it's important in repairing the state's reputation. Having the ACC and the NCAA locate their championships in the state helps restore North Carolina's reputation and puts money in the pockets of arena employees, program sellers and others, he said.

Cooper said he's spent time talking to the NCAA, asking for more time to get a new law passed.

"If we didn't do it before the NCAA made its decision, I feel pretty confident that the pressure would not have been there for the Republican leadership to do anything if this deadline had gone by," he said.

Cooper called the law "a step forward," though it is not a complete repeal. "I'm going to keep fighting every single day for LGBT protections. I'm going to be fighting for a North Carolina that is welcoming for everybody. And I believe this is a step in trying to get our laws to catch up to our people."

Berger told the Senate Rules Committee earlier Thursday that the bill represented "a significant compromise from all sides."

"It is something that I think satisfies some people, dissatisfies some people, but it's a good thing for North Carolina," Berger said.

HB2 forbids local anti-discrimination protections for LGBT people and requires people in government facilities to use bathrooms that match the gender on their birth certificates. Critics say it's discriminatory, while supporters contend it's needed to protect girls and women from sex offenders who might take advantage of access to public restrooms based on gender identity instead of sex at birth.

There are three provisions in the new bill: Repeal of HB2, leaving regulation of multiple occupancy restrooms, showers or changing facilities to the state, and a moratorium on local ordinances regulating public accommodations or private employment practices until Dec. 1, 2020.

Blue said many Democrats oppose imposing a moratorium on local non-discrimination ordinances, but he said the repeal takes the state back to what it had before HB2 was enacted in March 2016. Speaking on the Senate floor, Blue said the bill "resets the conversation" about new definitions of discrimination.

"I think this will address issues of who we are, how inclusive we are and whether everyone is valued," Blue said.

Sen. Dan Bishop, a Mecklenburg Republican and key author of HB2, was the only senator to speak on the floor against the new bill. "This bill is at best a punt; at worst it is a betrayal of principle," Bishop said.

Ned Curran, a former chairman of the Charlotte Chamber and former chairman of the state Board of Transportation under Gov. Pat McCrory, asked the Senate Rules Committee to pass the bill.

"This is a bill that will benefit the 10 million people of North Carolina and the 100 counties and will make North Carolina a better place than it is today," said Curran, who has been involved in recent negotiations to reach a compromise.

Sen. Ralph Hise, a Republican from Spruce Pine, said after the committee meeting that he opposed the bill and didn't appreciate economic pressure from sports leagues and businesses that have protested HB2 for a year.

"Basketball is important to North Carolina, nobody is going to deny that," Hise said. "But we've been threatened as a state and we took the coward's act and we're backing down. I can't stand for that."

Lawmakers sped the bill through the legislature by gutting an unrelated bill, House Bill 142, which had already been passed in the House. Once the Senate voted to approve it, the bill was able to go directly to the House for a floor vote.

In the House, several of the most conservative Republicans unsuccessfully tried to postpone consideration of the bill until next week. Other Republicans said they weren't willing to lose the protections of HB2, and expressed resentment that the NCAA had pressured the state.

A contingent of Democrats opposed it because they said the bill doesn't go far enough in eliminating discrimination, casting it in terms of the history of civil rights in the United States. The two openly LGBT lawmakers, Rep. Cecil Brockman of High Point and Rep. Deb Butler of Wilmington, were among the opponents.

"We don't want special rights," Brockman said. "We just want to be treated equally and to be left alone, and that's it."

"The times in life are rare when you have an opportunity to truly stand for justice," Butler said. "This is one of those days. ... This is so much bigger than basketball. The people of North Carolina want us to repeal HB2. We would rather suffer under HB2 than to have this body one more time deny us the full and unfettered protections of the law."

As the House debate wore on, members grew emotional, some members occasionally fighting back tears.

Rep. Jeff Collins, a Rocky Mount Republican, said the hard-edged politics on both sides of the issue have been by far the worst he has seen in his six years in office. "This is the saddest day of my service in the House in North Carolina," he said.

Rep. Yvonne Lewis Holly, a Wake County Democrat, said she thought about walking out to avoid voting, because she still wasn't sure how she would vote and was anguished over the decision. She ended up voting yes.

Rep. Mickey Michaux, a Durham Democrat, said he "wasn't going to throw my governor under the bus" by voting against a compromise Cooper had helped craft.

Rep. Scott Stone, a Charlotte Republican, argued for the compromise. "The time has come for us to get out from under the national spotlight for negative things," Stone said. "It's become urban legend."

After the House session, Moore and about a dozen members of the GOP caucus held a news conference to declare victory.

Rep. Sarah Stevens, a Republican from Mount Airy who is the speaker pro tem, described meticulous negotiations in recent weeks with small groups of legislators to find areas of agreement.

"We brought them all in," she said. "From some on the more extreme right, for some on the more extreme left there was not a lot we could do to bring them together. We had the ACLU and the Family Values Coalition going together to oppose this bill. That was a group of strange bedfellows."

Chris Sgro, executive director of Equality N.C., said he was surprised Cooper backed the compromise, calling it "a failure of leadership," and he called out two Democrats _ Rep. Joe John of Raleigh and Rep. Cynthia Ball of Raleigh _ for running on pledges to repeal HB2 but voting for the compromise.

"Roy Cooper and some legislative Democrats helped Tim Moore and Phil Berger fulfill their political agenda to place blame on somebody other than themselves for HB2, and not actually get anything done to substantively repeal HB2," Sgro said.

Sgro said he's concerned by the moratorium on local nondiscrimination ordinances because transgender people "can't wait four years to be protected against discrimination and violence. This still keeps North Carolina the only state in the country bizarrely obsessed with regulating where people use the restroom."

The Rev. Mark Creech of the conservative Christian Action League said he was "very saddened" that HB2 wasn't left intact.

"There's going to be a lot of disappointment, a lot of pain, even perhaps anger about it," he said. "I think the NCAA ought to stick to basketball or other sports that they represent. What they did on this was nothing less than extortion. I'm sorry that this body didn't stand up to that."

The N.C. Values Coalition was also dissatisfied with the outcome.

"These chambers were filled today with men and women who have been under a full-court press by the NCAA and the business community for months, and today, the leaders of our state have let the people of North Carolina down," Tami Fitzgerald, the executive director, said in a statement. "The truth remains, no basketball game, corporation, or entertainment event is worth even one little girl losing her privacy and dignity to a boy in the locker room, or being harmed or frightened in a bathroom. Today each member cast a vote based on what they believed was in the best interest of their constituents and North Carolina."

(c)2017 The News & Observer (Raleigh, N.C.)