Politics & Government

Courts could bring only partial clarity to HB2. NBA, NCAA could still stay away even after ruling.

This May 11, 2014 photo shows an "All Gender Restroom" sign outside a bathroom in a bar in Washington. Confrontations have flared across the country over whether to protect or curtail the right of transgender people to use public restrooms in accordance with their gender identity.
This May 11, 2014 photo shows an "All Gender Restroom" sign outside a bathroom in a bar in Washington. Confrontations have flared across the country over whether to protect or curtail the right of transgender people to use public restrooms in accordance with their gender identity. AP

How could the furor over House Bill 2 be resolved?

The latest attempt came Friday, when the state Restaurant and Lodging Association asked that the Charlotte City Council vote on Monday to repeal its expanded nondiscrimination ordinance. If that happens, the lobbying group said it was told by legislative leaders that the General Assembly would repeal HB2.

A similar deal was considered in May. It failed when council members voted 7-4 against repealing their ordinance.

It’s unclear whether businesses, sports leagues and organizations would return to North Carolina if the compromise involved Charlotte giving up legal protections for gay, lesbian and transgender individuals. And a deal might not end the legal challenges.

At an appearance in Charlotte Thursday, Republican Gov. Pat McCrory, a staunch HB2 defender, said the issue should and will be settled by the judicial system.

“It’s not going to be resolved by the N.C. Legislature, by the city of Charlotte, by the ACC or the NCAA,” he said. “It will be decided by the Supreme Court and it deserves a Supreme Court hearing. I will respect what the court does.”

McCrory’s comments suggested that the Supreme Court will make a quick determination on HB2’s merits, and the controversy will end, one way or another.

But it’s possible the impasse could continue deep into 2017 and beyond, as the courts could rule against part of the law, while keeping other pieces intact.

Another scenario: The law is upheld by the courts, but sports leagues and organizations like the NBA, NCAA and ACC, businesses and conventions still decide to stay away.

It’s possible the controversy could drag on for years.

In South Carolina, the Confederate flag flew on the Statehouse grounds for decades. The NCAA refused to hold championships in the state for 15 years until the flag was brought down last year.

Here are some of the ways HB2 could be resolved.

Q: Who is fighting HB2 in the courts?

A: The most immediate challenge to HB2 is from Gloucester, Va., where transgender male high school student Gavin Grimm has sued the local school board. Grimm contends the school board’s bathroom policy – which requires Grimm to use the girl’s restroom – is unconstitutional.

The Virginia case focuses on Title IX – the federal legislation that prohibits sex discrimination in schools that receive federal education funding.

The Fourth Circuit Court of Appeals in April ruled in his favor. But the U.S. Supreme Court in August granted the defendant an emergency stay, when Justice Stephen Breyer, considered a liberal justice, sided with the court’s conservative wing.

It’s unclear if the Supreme Court will hear the case. If they decline, the Fourth Circuit’s ruling will stand.

If the Supreme Court rules in favor of Grimm, it might not have a broad impact on HB2. The ruling might only apply to N.C. K-12 schools and colleges.

HB2 could still require transgender individuals to use the bathroom that matches their birth certificate in places like airports, libraries and the DMV.

On the other side, nearly half of all states, including North Carolina, have sued the Obama administration over its directive that school districts allow transgender students to use the restroom of their identified gender.

Q: What are the other legal challenges?

A: Closer to home, the American Civil Liberties Union of N.C., Equality NC and others have filed a lawsuit that targets both parts of HB2: The bathroom provision and the prohibition on cities and towns from passing their own nondiscrimination ordinances.

In challenging the state’s nullification of Charlotte’s ordinance, the ACLU is hoping the Fourth Circuit follows the example of Romer vs. Evans in Colorado.

In 1992, Colorado voters approved an amendment to their state constitution that prohibited any city, town, or county in the state from making gays or lesbians a protected class. The Supreme Court found the law violated the Constitution’s Equal Protection Clause.

In creating its new statewide nondiscrimination ordinance, HB2 does not mention the LGBT community by name – a change from the Colorado ordinance.

Chris Brook, legal director of the N.C. ACLU, said he believes the Fourth Circuit Court of Appeals will nonetheless recognize that HB2 was passed to target the LGBT community.

“It’s plain one of the motivating factors was animus to the LGBT community,” he said.

Q: If the bathroom requirements are struck down, how would N.C. compare then?

North Carolina is the only state with a law requiring people to use the bathroom that matches their birth certificate. That has allowed critics to attack McCrory and the legislature with ferocity, saying the state has gone where no other has.

If the courts or the legislature remove that part of HB2, the law would still prohibit Charlotte or any other city from passing LGBT protections.

Tennessee and Arkansas also have similar “pre-emptive” laws that don’t allow cities and towns from passing their own nondiscrimination ordinances. Those states haven’t faced much scrutiny.

Q: How would the NCAA, ACC and NBA react?

Earlier this year, NBA Commissioner Adam Silver said in a news conference that HB2 was about more than bathrooms. His comments suggested the league still had a problem with the legislature quashing Charlotte’s LGBT protections.

In its news release about removing championship games from the state, the NCAA noted that N.C. laws “invalidate any local law that treats sexual orientation as a protected class or has a purpose to prevent discrimination against lesbian, gay, bisexual or transgender individuals.”

Would the NCAA bring its championship games back to N.C. if the General Assembly doesn’t allow Charlotte and other cities to pass their own legal protections for the LGBT community?

“I don’t know the answer to that question,” said Cathryn Oakley of the Human Rights Campaign, which has fought HB2. “The NBA and the NCAA and the ACC have all been very thoughtful and they have taken their time in assessing the situation. I think the full repeal is only way that N.C. clears its name.”

Q: How long have other boycotts lasted?

In 2001, the NCAA announced it would not hold pre-determined championship games in South Carolina because the Confederate flag flew on the Statehouse grounds.

When the S.C. legislature voted to remove it last year, the NCAA said it would bring championships back to the state.

Q: What about the November elections?

A: McCrory is trailing in many polls to Democrat Roy Cooper, who opposes the law.

But if Cooper becomes governor, he can’t erase HB2. Only the legislature can do that. Few believe that Republicans will lose control of the General Assembly.

“The odds are very slim,” said Catawba College political science professor Michael Bitzer. “I think the way the legislative districts are drawn, (the Republicans) bought themselves a long-term insurance policy when they drew the maps. Even if there is a substantial tidal wave, those districts are insulated to keep majority control.”

In a Republican controlled General Assembly, would there be any defectors?

Possibly.

State Sen. Tamara Barringer is a Republican representing Cary, where four NCAA championship events were to occur before the NCAA moved them. She was the first Republican to call for the law to be repealed. At least four others have joined her.

“The problem is going to be, even if they strengthen numbers, those defectors may or not be around – they may get beaten,” Bitzer said. “It’s really up to the leadership to make the choice.”

Q: What about the Restaurant and Lodging Association proposal?

A: When the City Council voted against a symbolic repeal of their ordinance in May, a number of council members said they couldn’t abandon the LGBT community.

They could get a second chance at repeal Monday.

But if the City Council repealed its ordinance, and the General Assembly repealed HB2, would businesses like PayPal come back?

Or would some see the city’s loss of LGBT protections as something still worth protesting?

The NCAA said its decision to remove championships from the state is about more than HB2.

“North Carolina law provides legal protections for government officials to refuse services to the LGBT community,” the NCAA wrote.

That is true. Although it’s not part of HB2, North Carolina is one of just two states to specifically authorize magistrates to refuse to marry gay and lesbian couples if they have religious objections.

Steve Harrison: 704-358-5160, @Sharrison_Obs

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