Crime & Courts

Future of court fights hangs on legislature’s next move on HB2

Marchers protesting the Charlotte City Council’s passage of LGBT protections, including bathroom rights for transgender individuals, demonstrate outside the Government Center in Charlotte last March. With the city council rescinding its ordinance, the General Assembly reportedly will consider a repeal of its controversial HB2 as early s Tuesday
Marchers protesting the Charlotte City Council’s passage of LGBT protections, including bathroom rights for transgender individuals, demonstrate outside the Government Center in Charlotte last March. With the city council rescinding its ordinance, the General Assembly reportedly will consider a repeal of its controversial HB2 as early s Tuesday Charlotte Observer staff

The nine-month legal fight over House Bill 2 returns Wednesday to where it began – the General Assembly, with legislators reportedly set to repeal all or some of North Carolina’s controversial “bathroom law.”

On Monday, Charlotte City Council rescinded an amended ordinance it passed in February to expand LGBT protections. The ordinance included a provision that allowed transgender individuals to use the public bathrooms that matched their gender identity.

The General Assembly countered with HB2, a sprawling set of restrictions that piled restrictions on such unrelated issues as the minimum wage and state residents’ right to file discrimination complaints in state courts.

That set off a crippling culture war that has cost the state thousands of jobs and millions of dollars in industrial investments, concerts and sporting events. The national debate that followed also cast the state as an intolerant outlier in the campaign for LGBT rights. Supporters of the law said it was a logical response to privacy threats for women and children.

Now, almost 10 months after it started, the standoff seems close to a possible settlement.

The Charlotte council’s move, which caught some legal experts and LGBT activists off guard, appears part of a two-step compromise that could lead to HB2’s repeal as soon as Wednesday. Legislators have said for months that no changes to the law would be considered until the city repealed its ordinance. Now the stage is set for legislators’ next move.

UNC-Chapel Hill law professor Maxine Eichner, an expert in LGBT issues, said a full repeal of the law could end the multiple legal fights now underway in North Carolina’s federal courts.

Those cases are in jeopardy to begin with since they rely on government policies extending federal discrimination laws to transgender bathroom use – an interpretation that many legal experts say will disappear under the incoming Trump administration.

“I think it’s a win-win situation,” Eichner said. “From the perspective of North Carolina, the business boycott will end. From the perspective of those who want to advance LGBT rights, this delays putting the issue to the courts based on a federal government policy that is very likely to change in the near future.”

Likewise, Brian Clarke, a Western Carolina University expert in employment law and a longtime HB2 critic, said Monday that the change of presidential administration will also derail a Supreme Court showdown on bathroom rights.

He said he doubts the case of a transgender Virginia high school student now scheduled to be heard by the high court will ever be argued since it, too, relies on the interpretation of the outgoing Obama administration that discrimination laws extend to bathroom choice. At the same time, new challenges might arise under constitutional “equal protection” provisions.

In North Carolina, much still depends on what the General Assembly chooses to do. Clarke said he would be “very surprised” if the legislature rolls back the entire law, particularly since the repeal of the bathroom restrictions alone “likely will satisfy corporate America” and end some of the boycott.

“But for the members of the LGBT community, especially the transgender community, I can certainly see how this would feel like a betrayal by the City Council,” Clarke added.

Charlotte LGBT activist Ashley Williams responded in kind.

Williams, a co-founder of Charlotte Uprising, said the City Council members “never had a good understanding” of what the ordinance meant to their LGBT constituents or “they would have done more to maintain protections.”

“As someone at the intersection of racial and gender justice, I’m skeptical about the removal of HB2 as it wasn’t just about trans and queer folks,” Williams said. “I’m skeptical about whether this means something worse than HB2 is in the works.”

Greg Wallace, a Campbell University law professor, said the political debate could press on regardless of what the General Assembly decides to do.

“Curious, if HB2 is repealed, what’s to keep another locality, such as Asheville or Greensboro, from adopting an ordinance like Charlotte’s?” he said. “I could see the LGBT folks doing just that, and then daring the General Assembly to re-enact HB2.”

Michael Gordon: 704-358-5095, @MikeGordonOBS

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