Politics & Government

Proposed changes in North Carolina's HB2 meet fierce criticism

Rep. Chris Sgro talks about HB2 proposal

He addresses draft of new bill.
Up Next
He addresses draft of new bill.

In the face of a national firestorm, North Carolina lawmakers are considering revisions to House Bill 2, though critics blasted one proposal Tuesday as “just another slap in the face to all North Carolinians.”

Gay rights advocates were reacting to a draft of a bill that would change HB2, the law that ignited a storm of criticism that resulted in lost investments, celebrity boycotts and the potential loss of national sporting events. The law nullified a Charlotte ordinance that would have extended nondiscrimination protection to LGBT residents and allowed transgender individuals to use the bathroom of their gender identity.

It’s unclear where the draft originated, or how many other drafts exist. But some lawmakers acknowledged that changes to HB2 could be considered before the General Assembly adjourns this week or next.

That’s why HB2 critics were taking no chances.

“Once more leadership has not consulted with us or discussed a piece of legislation with us that will have deep impacts for our community,” said Rep. Chris Sgro, a Guilford County Democrat and executive director of Equality NC, a gay rights advocacy group. “It’s just another bad bill.”

[Editorial: The House Bill 2 ‘fix’ actually isn’t one]

Sgro and others said they don’t believe the draft changes would placate the NBA, which has said it could move its 2017 All-Star Game from Charlotte if HB2 stands.

But a source familiar with the NBA’s thinking said the proposed changes to HB2 are “a step in the right direction” toward avoiding having to move the All-Star Weekend out of Charlotte.

Opposing the draft changes are not only LGBT critics but also HB2 supporters.

“We’d be opposed to any changes in the bill,” said Tami Fitzgerald, executive director of the N.C. Values Coalition. “We believe the people of North Carolina have already spoken through their elected representatives.”

She criticized the NBA for “bullying the state and the legislature” and said it was “outrageous” for a sports organization to try to brow-beat the state on an issue that should be decided by the people who live here.

Lawmakers acknowledged that no changes would be universally popular.

“It’s a juggling act,” said GOP Rep. Charles Jeter of Huntersville. “We’re trying to do right by everybody.”

The draft bill would not change a key part of HB2 – the prohibition on transgender persons using the bathroom or locker room of their gender identity in public facilities.

It would restore the right to sue for gender discrimination in state court, a right removed by HB2 but sought by Gov. Pat McCrory.

And it would use federal anti-discrimination standards in determining discrimination, not the standards in HB2. That could extend protections to sexual orientation, according to a lawyer familiar with the legislation. Critics, however, said the changes would do nothing to protect the LGBT community.

The impact of certain rewritten sections of the law is difficult to gauge at first glance, said Charlotte lawyer John Gresham, an employment law specialist.

For example, the revisions appear to reinstate and even broaden LGBT and transgender protections on hiring, firing and other workplace issues, Gresham said. But it excludes bathroom access from being classified as discrimination.

The draft would make it easier for people who’ve had reassignment surgery to be recognized by requiring a “certificate of sex reassignment,” not necessarily a birth certificate, to prove their new gender. It would also increase penalties for violating people’s privacy in bathrooms or locker rooms.

And it would create an “anti-discrimination task force” to review issues surrounding the law, including how claims of discrimination are handled in North Carolina.

Lobbying for changes

While NBA Commissioner Adam Silver has said previously the restroom issue is not of as much concern to him as the LGBT rights issues, the source familiar with the NBA’s thinking said the league would need an assurance that transgender individuals would have access to the restroom of their gender identity at any venue the All-Star Weekend uses.

In addition to Time Warner Cable Arena, there would be All-Star activities at two other public facilities that must follow HB2: the Charlotte Convention Center and possibly Bojangles’ Arena. Also, hotels housing All-Star attendees would have to abide by the NBA’s long-standing policy.

Drafting a change in HB2 was the result of months of lobbying by the NBA and business communities in Charlotte and around the state. Charlotte, Raleigh and Asheville, along with other cities, have already lost businesses, conventions and concerts because of the law.

PayPal, for instance, decided against opening a new operations center in Charlotte because of the measure. The move would have created up to 500 jobs.

“There’s no secret we have been having conversations about HB2 with different constituencies for weeks,” said Andy Munn, a spokesman for House Speaker Tim Moore of Cleveland County. “It has also been reported that drafts of legislation regarding HB2 have been shopped around the General Assembly. … At the end of the day, the Speaker remains committed to making sure our citizens have the right to expect privacy in bathrooms and showers.”

But lawmakers said changes are being considered.

Rep. Chuck McGrady, a Hendersonville Republican, said he expects some bill by end of session. “But what the nature of that bill will be is unclear,” he said.

Changes ‘a joke’

Earlier, Sgro said he would address the fallout over HB2 in remarks on the state budget on the House floor Wednesday.

“Unless (a bill) substantially repeals HB2, the equality community is going to come out strongly in opposition,” he said.

And Cathryn Oakley, senior legislative counsel to the Washington-based Human Rights Campaign, called the draft bill a “joke.”

“It is the legislative equivalent of throwing a glass of water on a burning building,” she said at a news conference.

Chris Brook, state legal director of the ACLU, which has filed one of the legal challenges to HB2, says the new version of the law “does nothing to protect LGBT people in North Carolina.”

“Instead, it doubles down on discrimination. The only way to stop the damage caused by HB2 is to fully repeal it once and for all,” Brooke said.

“And the idea of a task force to study these issues three months after HB2 was rammed through the legislature and signed into law is absurd. Our state’s leaders should get educated on issues before legislating, not vice versa.”

Under HB2, transgender people who have not taken surgical and legal steps to change the gender noted on their birth certificates have no legal right under state law to use public restrooms of the gender with which they identify.

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. The proposed “certificate of sex reassignment” appears to address that.

UNC-Chapel Hill law professor Maxine Eichner, a specialist in LGBT issues, says the proposed certificate of sex reassignment “proposes to solve the most minute portion of a huge problem that HB2 created.”

Most transgender people don’t undergo sexual-reassignment surgery because it is expensive, painful and risky, she said. “HB2 has many problems. The fact that some states don’t allow gender reassignment on driver’s licenses is the least of them.”

And she said proposed changes have little chance being accepted by the LGBT community and other HB2 critics.

“If folks are generally concerned with the damage that HB2 does to the LGBT community, this is not a viable solution,” she said.

“Maybe for folks who are looking for a cosmetic solution, perhaps this is satisfactory. Anybody looking for a solution that will address the real harm will not be satisfied.”

NBA commissioner Adam Silver on next steps regarding the All-Star Game and North Carolina's House Bill 2.

Staff writer Tim Funk contributed.

Related stories from Charlotte Observer