HB2: How Did We Get Here?
A year ago, state legislators passed House Bill 2, a controversial law that almost immediately set off a national debate about public safety, common sense, and government authority.
At the heart of the debate is a room we don’t think about much. Except, perhaps, when we’re in a long line at a basketball game or we need a quick stop on a road trip: bathrooms.
We seem to take public bathrooms for granted. And for most people, deciding which one to use is not complicated.
But North Carolina’s public bathrooms came into the national spotlight this year. Among other things, House Bill 2 requires people to use the public bathroom that corresponds with the sex listed on their birth certificate -- focusing on their anatomy, not their gender identity.
For transgender people, the law led to plenty of confusion.
“The day they passed it, I remember I had to pee,” recalled Luke Duwve. “And I was like, ‘Alright then, what do I do?”
The day they passed it, I remember I had to pee. And I was like, Alright then, what do I do? - Luke Duwve
Luke Duwve was a 17-year-old junior at Panther Creek High in Cary that day. He was born a girl but by his sophomore year identified as a boy. He cut his hair short, started wearing men’s clothes and started taking testosterone to help with the transition. He hasn’t had sex assignment surgery yet.
“Do I go into the girls bathroom now as it’s technically illegal for me to go into the guy’s bathroom,” he said. “But if I go into the girl’s bathroom the social backlash it could have of ‘Oh, a guy just waltzed into the bathroom’.”
Some estimates have North Carolina with an adult transgender population in the tens of thousands. In more than 200 cities and counties across the United States, some protections have been given to people who are transgender. And in thousands of others, there are none.
Charlotte Ordinance Sets Off Debate Over Transgender Rights
The last year in North Carolina has revealed a complex chapter in the state’s history, as House Bill 2 grabbed headlines across the country.
But this story really began a couple of years ago, with efforts to add Charlotte to the list of cities that protects people regardless of their sexual orientation, gender identity or gender expression. And that sparked immediate opposition from Charlotte residents.
“Once again, this city council and you Mrs. Mayor, have divided this city, raised the passions and anger of many on both sides, and pitted the good people of this region against one another,” said one resident at a city council meeting in February 2016.
That mayor was Democrat Jennifer Roberts. She, and Charlotte City Council members heard from residents for months. Then, there was a marathon council meeting in February of last year. One hundred forty people spoke. And following three hours of public comment, the council voted 7-4 to pass a city law protecting LGBT people.
Cheers in Charlotte followed weeks of warnings from Raleigh. State lawmakers discouraged local leaders from passing any sort of measure, promising a swift response.
A day after Charlotte’s ordinance passed, the Speaker of the North Carolina House, Republican Tim Moore, vowed to take action. And a few weeks after that, state lawmakers were back in Raleigh.
Lawmakers Pass House Bill 2 During One-Day Special Session
Things moved quickly during that one-day special session. Republicans had drafted a bill, but it wasn’t immediately available to everyone. Citizens, press, and Democratic lawmakers didn’t get a glimpse of what was coming until moments before the debate began. State Representative Bobbie Richardson, a Democrat from Franklin County, underscored the confusion.
“I’m not sure what is really in this bill,” said Richardson, during a committee meeting. “Is it a possibility that we could be given at least 5 to 10 minutes to read this for ourselves, from front to back?”
I'm not sure what is really in this bill. - Democratic State Rep. Bobbie Richardson
Bills usually don’t become laws in a day. But House Bill 2 moved through both chambers in a matter of hours.
The bill had the support it needed despite it setting off of months of divisive rhetoric. Republican Buck Newton echoed the refrain of many conservatives on the Senate Floor that day.
“The city council of Charlotte lost their mind and decided to embark upon a very radical course,” Newton said.
Newton and other Republicans said the bathroom bill was about protecting women and children by keeping men out of women’s bathrooms and locker rooms. However, they offered virtually no evidence supporting concerns over public safety.
The city council of Charlotte lost their mind and decided to embark upon a very radical course. - Republican State Senator Buck Newton
Democrats warned there would be federal legal challenges and economic repercussions. Other opponents, like Chris Sgro of Equality NC, pointed to other cities where similar measures have been in places for years.
“This would be the most sweeping anti-LGBT bill in the nation,” Sgro said. “We cannot allow state policy to be crafted, or passed, for political gain or out of factless fear.”
The most well-known provision of HB2 is the way it legislates who can go into which bathroom. But the law also bans cities and towns from passing their own non-discrimination ordinances. In addition, it creates a statewide non-discrimination law that leaves out the LGBT community. And it bars local governments from paying contractors to pay workers above the current minimum wage.
Following hours of contentious debate, lawmakers sent the five-page bill to Republican Governor Pat McCrory, who signed House Bill 2 into law that night. The chaotic day was over. The fallout was just beginning.
Lawsuits, Opposition To HB2 Begin Almost Immediately
Five days after Gov. McCrory signed the law, the lawsuits began. The American Civil Liberties Union filed a lawsuit asking the courts to overturn HB2. The lawsuit raised a number of legal claims, including violations of equal protection and privacy laws.
Joaquin Carcano, 28, is one of four individuals challenging the state law. He spoke at a news conference announcing the lawsuit.
“We... are no different than any of you,” Carcano said. “We exist. You’ve passed us on the street, whether you know it or not. I guarantee you that you’ve shared a restroom with us. We use it, just like you, to pee, in peace, with privacy and without fear, instead of with the anxiety that has gripped my chest since this legislation has passed.”
Plaintiffs say the law denies them basic rights outlined in the Fourteenth Amendment of the U.S. Constitution because it discriminates on the basis of sex and sexual orientation. They also say the law is an invasion of privacy for transgender men and women.
One week after the bill became law, North Carolina saw the first concrete financial consequence of HB2: PayPal, the online payment website, scrapped a plan to invest more than $3 million to expand to North Carolina and hire 400 people.
“Becoming an employer in North Carolina, where members of our teams will not have equal rights under the law, is simply untenable,” said PayPal CEO Dan Shulman in a statement.
PayPal was among the the first cancelations. Then musicians like Bruce Springsteen, Pearl Jam and Ringo Starr pulled concerts. Academic conferences also went away. Visitor bureaus and mayors reported losses in the millions. And there were warnings of bigger events going elsewhere.
But for all the widespread criticism of House Bill 2, there were also many passionate supporters.
HB2 Supporters Stand Behind Gov. McCrory And Republican Lawmakers
In mid-April, hundreds of people stood on the lawn of the old State Capitol Building in Raleigh, cheering Gov. McCrory and the Republican legislators who wrote the law.
“This is a day that the Lord has made,” Republican State Senator Buck Newton said at the rally, pointing a finger at LGBT advocacy groups who, he said, were orchestrating an attack on the state.
“They insist on forcing us to bow and kiss the ring of their political correctness theology,” he said to cheers.
LGBT rights groups and other opponents staged a counter-protest across the street, chanting “Real Christians don’t hate” and "What would Jesus do? Repeal HB2."
When the chants died down, it was only brief. April rolled into May. And the debate roared on, spreading from the streets of downtown Raleigh to the national airwaves. And it was McCrory, the former seven-term mayor-of-Charlotte-turned-Governor, who emerged as the bill’s biggest advocate.
McCrory had long been seen as a moderate Republican before taking residence in the executive Mansion. He attacked what he called the radical media, outside groups, and Hollywood’s elite for misrepresenting the measure. And he defended the bill on Meet The Press.
“What we’ve got to do is deal with this extremely new social norm that has come to our nation in a very quick period of time and have these discussions about the complexity of equality while also balancing the concept of privacy,” McCrory said.
As the HB2 conflict grew, McCrory’s re-election fight was also heating up. His challenger, Democrat Roy Cooper, was raising more money and had a lead in the polls. Both used HB2 to raise the stakes of an already-contentious gubernatorial race.
And as the issue went national, so did the legal maneuvers. Gov. McCrory filed a lawsuit asking federal courts to keep HB2 in place. That same day, the U.S. Justice Department responded with a lawsuit of its own.
“They created state-sponsored discrimination against transgender individuals,” said then-U.S. Attorney General Loretta Lynch announcing the lawsuit. Lynch, a North Carolina native, said federal laws concerning gender and discrimination are clear and that North Carolina’s law violates them.
According to the federal lawsuit, HB2 violates the Civil Rights Act, by discriminating against state employees, and Title IX, by discriminating against students at state schools. The Obama administration interpreted Title IX to also cover gender identity, although the Trump administration rescinded that rule last month.
“None of us can stand by when a state enters the business of legislating identity and insist that a person pretend to be something or someone that they are not,” Lynch said. “Or invents a problem that does not exist as a pretext for harassment and discrimination.”
Governor McCrory contended the Obama administration was trying to bypass Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina. He said the lawsuit was an attempt to “clarify” national law.
McCrory vowed to fight Washington, while his challenger in his bid for re-election made the loudest calls yet, for repeal.
“We shouldn’t have to be dealing with these lawsuits in the first place,” said Democratic gubernatorial candidate Roy Cooper. “This shameful, new law has brought them upon us. The governor and the Legislature should repeal this law.”
The legislative session marched on into June and July. Policymakers passed a budget, and actually tweaked HB2, before adjourning. However, that adjustment dealt with legal recourse and the ability to sue in state court over wrongful discrimination. The bathroom provision remained. And so did the national controversy.
HB2 Hits North Carolina's Beloved Pastime
House Bill 2 would soon disrupt one of the state’s most cherished staples: basketball.
College basketball is ingrained in North Carolina culture. People remember teachers rolling televisions into classrooms to watch March Madness games during their childhood.
Basketball culture and the bathroom controversy collided and that moved the stakes to a new level. First it was the National Basketball Association. Charlotte was scheduled to host the 2017 NBA All-Star game. But league commissioner Adam Silver warned there would be consequences.
“There’s a long track record in this league of being in forefront on issues impacting human rights and discrimination, and, of course, this league... is against discrimination in any form,” Silver said.
In July, the NBA pulled it’s All-Star game from Charlotte. An event that generates about $100 million for the host city. Two months later, the NCAA pulled seven college championship games from the state, including NCAA’s men’s basketball. And the ACC followed, pulling 10 championships, including women’s basketball and soccer, golf, and tennis, in addition to football.
The city of Cary was especially hard hit. Mayor Harold Weinbrecht estimated the NCAA’s decisions will cost the city about $2 million.
“We’re a NCAA championship city, which means we host NCAA championships. And now’ we’re an NCAA championship city and we don't host NCAA championship,” Weinbrecht said. “So it’s a major loss ‘cause we’ve put a lot of time, money and effort into becoming an amateur sports mecca.”
North Carolina was also becoming a mecca for partisan bickering. The state’s population has grown significantly, and its political make up has changed. The state is no longer firmly red when it comes to presidential races. In 2008, Barack Obama’s closest victory came here. Four years later, voters handed President Obama his narrowest defeat. House Bill 2 was a perfectly-polarizing issue.
“And that’s to me a perfect definition of a wedge issue,” Meredith College Political Science Professor David McLennan.
McLennan said with a national rise of populism, House Bill 2 highlighted a divide: religious rural areas, where the economy is still sputtering following the recession; and growing urban areas pushing progressive agendas.
In addition to Republican Governor Pat McCrory, other candidates championed the socially divisive legislation. Lieutenant Governor Dan Forest seeking re-election, and Buck Newton, vying for Attorney General, regularly used the issue on the stump. Forest won comfortably. Newton lost. And McCrory came up short, losing by less than 11,000. While many were quick to cite HB2 as the reason, McLennan the political scientist, said it’s not that simple.
“He also had some other issues that were sort of driving his ultimate defeat,” said McLennan “So even though HB2 was an important issue in his race, and I think probably cost him some percentage points in the race – what cause him to lose was the combination of all the issues.”
Legislators Attempt, But Fail, To Repeal HB2
The election was over, but the issue of House Bill 2 remained. Pressure persisted and in early December rumblings of a special session grew. Lawmakers first came in for an entirely unrelated effort, stripping the governor’s office of some powers.
A week later, in the days before Christmas, state legislators convened again. A deal had apparently been brokered by Senate Leader Phil Berger, House Speaker Tim Moore and Governor-elect Roy Cooper to repeal the law. If Charlotte would rescind its ordinance, which to be clear had already been nullified by HB2, state lawmakers would follow and undo the bathroom bill. Members of the Press descended on the legislature as a national spotlight intensified on Raleigh, again.
But there was no deal. Republicans blamed the Charlotte City Council, for at first only rolling back part of its ordinance. Democrats pointed the finger at Republicans for not sticking to the deal.
Why the agreement fell apart is a question legislators on both sides of the aisle asked themselves in the days after the December special session. The answer, of course, depends on who you ask.
For Luke Duwve, the transgender high school student from Morrisville, the failed measure offered further disappointment. Here’s his mom, Jeanne:
“Seeing our politicians use fear and marginalize and bring hatred to a group of people that already is suffering, that was very disheartening,” said Jeanne Duwve.
As the new year rolled in, the wedge issue was still in place and was still North Carolina law. That meant conservatives were holding their ground, progressives had yet to reach a compromise, and the black eye on North Carolina had yet to begin healing. And lawmakers have again failed to reach a compromise, after legislators introduced yet another repeal bill last month.