Politics & Government

What could change in HB2? Not much

House Speaker Tim Moore talks with House Bill 2 sponsor Rep. Dan Bishop of Mecklenburg County, right during debate on the House floor on Wednesday, March 23, 2016 in Raleigh, N.C.
House Speaker Tim Moore talks with House Bill 2 sponsor Rep. Dan Bishop of Mecklenburg County, right during debate on the House floor on Wednesday, March 23, 2016 in Raleigh, N.C. rwillett@newsobserver.com

Few bills have gone from draft to law faster than House Bill 2. And few have gotten more attention.

The law, passed and signed in less than 12 hours last month, has become a defining issue in the governor’s race. Presidential candidates now have been drawn into the debate. The law has prompted protests and boycotts. It has exacted real and threatened economic costs. Even President Barack Obama weighed in Friday.

And it’s certain to be an issue in the General Assembly’s short session that starts Monday.

Critics have called for wholesale repeal. Gov. Pat McCrory has called for some changes. How much support there will be for changes is unclear. Few Republican lawmakers responded to a survey on the bill from the Associated Press and several North Carolina newspapers, including The Charlotte Observer and The News & Observer.

Here’s a look at the major provisions of the Public Facilities Privacy & Security Act and what might happen during the upcoming session.

Part I: Bathrooms

What the law says: It calls for schools and public agencies with “multiple occupancy bathroom and changing facilities” to designate separate facilities based on a person’s biological sex as stated on their birth certificate.

What people want: Critics – including Charlotte City Council members who passed the ordinance that prompted the law – want this removed altogether. They say it discriminates against transgender people. Supporters say it protects women by keeping men posing as transgender women out of women’s bathrooms and locker rooms.

What to expect: No major changes. Republican Senate Leader Phil Berger made that clear at a news conference last week where he talked about the “Bathroom Safety Bill.”

“My job is not to give in to the demands of multimillionaire celebrities … liberal newspapers like The New York Times, big corporations who have every freedom to set whatever policies they wish under this law,” he said. “My job is to listen to the people who elected us … And the vast majority of North Carolinians … support this reasonable, common-sense law.”

But the birth certificate provision could change.

The law’s supporters say anyone who has surgically changed genders could get their birth certificate changed. But some people say that’s a hardship. At least one state, Tennessee, bans a change. Some lawmakers, including Senate Rules Chairman Tom Apodaca of Hendersonville, have said they’re willing to look at it.

John Hood, chairman of the conservative John Locke Foundation, says lawmakers could allow people to indicate their gender on their driver’s license application.

Federal courts also could weigh in. Last week a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that a transgender student could sue a Virginia school district because he was banned from using the boys’ bathroom. Fourth Circuit rulings govern the Carolinas.

Part II: Minimum wage

What the law says: This section bars local governments from setting their own minimum wage ordinances. It also prohibits cities and counties from imposing anti-discrimination or other regulations on private companies that do business with them. This does not affect “living wage” policies that governments have for their own employees.

What people want: Local governments want the flexibility to adopt ordinances they believe they need. Charlotte’s city attorney cited the section in ending a 20-year-old program requiring contractors hired by the city to have anti-drug programs for employees.

“What’s important is local communities have the abilities to decide these kind of issues themselves,” said Scott Mooneyham, director of public affairs for the N.C. League of Municipalities.

What to expect: There is strong sentiment among the bill’s supporters to keep this provision, but some lawmakers could try to change it.

“We have to be considerate of the fact that the cost to live in Charlotte or Raleigh far exceeds the cost in Lumberton,” says Republican Rep. Charles Jeter of Huntersville. He says the law is a “one-size-fits-all” solution.

Part III: Discrimination protections

What the law says: It creates a statewide ban on discrimination “on account of race, religion, color, national origin, age, biological sex or handicap.” It supersedes and pre-empts local ordinances that go beyond that. Charlotte’s overturned ordinance would have extended anti-discrimination protection to people based on sexual orientation and gender identity.

What people want: Supporters say because discrimination is a statewide concern, there should be a state policy, not a patchwork of local policies. Critics say it limits the flexibility of communities to determine their own policies.

This month McCrory signed an executive order that expanded the state’s employment policy to cover sexual orientation and gender identity for state employees. It does not cover teachers and some other employees.

What to expect: Lawmakers are unlikely to change this provision. Many agree with McCrory, who said on “Meet the Press” that, “I don’t think the government ought to be the HR director for every business. … This is that fine line between how much does government tell the private sector in a regulatory way what to do.”

Part IV: The ability to sue in state court

What the law says: The language: “This Article does not create … or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy” in the law. It means the law takes away the ability to sue over discrimination in state court. It charges the state Human Relations Commission with investigating and resolving any claims.

What people want: Even some Republicans want to remove this provision, which caught many lawyers by surprise. McCrory’s executive order “encourages” the General Assembly to restore the ability to use state courts.

What to expect: The administration and others will lobby to change this.

“We will listen to the governor’s proposal,” Berger said last week. “I’m sure there will be many other proposals out there … I’m not ready to say we’ll make any changes. I just don’t see the need for it.”

Jim Morrill: 704-358-5059, @jimmorrill

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