Sorting The Myths And Facts Of North Carolina's HB 2
Myths, facts and a federal lawsuit. That is where we currently stand with House Bill 2, the broad legislation passed in a special session of the General Assembly and signed into law that night by Governor McCrory. From start to finish the process took just 12 hours.
Since then there’s been a blitz by those for and against the bill. With both sides crying foul, accusing their opponents of discrimination, hypocrisy and Chicken Little-like “the sky is falling” claims.
So much has been written about HB 2 that, for clarity, we’re limiting this dueling narrative to four key claims about the new law.
CLAIM #1 was made at the press conference announcing a federal lawsuit against the measure. Here’s Chris Sgro, Executive Director of Equality NC, an LGBT rights advocate had to say. "HB 2 is the most sweeping anti-LGBT bill in the nation and it will not stand the test of time or the test of federal court."
Obviously time will tell if HB 2 survives court challenges. So let’s tackle the broader issue in two parts.
In terms of the use of multiple occupancy bathrooms, locker rooms and similar facilities the answer is yes, North Carolina’s bill is the most sweeping in the nation.
The National Conference of State Legislatures, a non-partisan group which tracks laws and lobbies on behalf of state legislatures says “HB 2 makes North Carolina the first state to enact legislation officially restricting access to sex specific facilities (like bathrooms or locker-rooms) to correspond with the sex on your birth certificate. – both in schools and otherwise."
But, to be the broadest in the nation the bill would have to go further. And Chris Brook, legal director of the North Carolina ACLU says it does. His group is a plaintiff in the federal case. He says the law "permits discrimination against lesbian, gay, bisexual and transgender individuals."
By denying them status as a protected class.
HB 2 actually establishes North Carolina’s first, statewide, non-discrimination ordinance. It defines race, religion, color, national origin, age, biological sex or handicap as protected classes for things like employment and public housing. And it bars municipalities from adding to that list.
But note, sexual orientation, gender identity and gender expression are not on that list. Which lead me to ask civil rights lawyer Luke Largess this question;
TB: "Based on this law, would it be legal, if I were an employer, to fire an employee because they were gay?" LL: "Oh yeah, oh yeah."
I asked Largess to explain. "You cannot sue if you’re discriminated against in North Carolina in state court, under state law. You’re barred from doing it."
That is a provision in this law. It says the State Human Relations Commission, will now adjudicate these matters. And its mandate is to refer cases to the federal Equal Employment Opportunity Commission, meaning someone fired for discrimination has to file a much more costly federal case to seek redress.
Claim #2 goes to the heart of the federal lawsuit. It’s made here by the ACLU’s Chris Brook. "The law violates Title IX by discriminating against students on the basis of sex"
Title IX is a federal civil rights law which prohibits discrimination at educational facilities which accept federal dollars.
By barring transgender students from using the facility of their choice, the federal suit argues HB 2 violates that law and may endanger the estimated $4.5 billion the Department of Education estimates North Carolina will receive in this year.
In press release titled Myths verse Facts, Pat McCrory disputes this referring to “a federal court which has looked at a similar issue.” We asked McCrory’s office multiple times for specifics about this uncited case. But the governor’s office never gave us one or the date of any ruling. And timing does matter here.
In April of 2014, the Office for Civil Rights in the U.S. Department of Education issued guidelines which, “makes clear that transgender students are protected from discrimination under Title IX.” It falls under their interpretation of sex under current federal non-discrimination laws.
Representative Dan Bishop, a Republican of Mecklenburg County would not submit to an interview, instead he referred us to his Facebook page for comment. And there he calls the 2014 Title IX guidelines “a radical reinterpretation of Title IX by the Obama administration to argue that a school discriminates on the basis of "sex" by refusing access to opposite-sex bathrooms to children/students who are transgender.”
Bishop may or may not be right, a federal judge will decide that, but since the Obama administration is calling the shots here North Carolina’s Title IX money MAY indeed be at risk. But no such action has been taken before.
Claim #3 – This was made by Governor Pat McCrory at an unrelated press conference yesterday which was recorded by WRAL in Raleigh. "Every city and every corporation has the exact same discrimination policy this week that they had two weeks ago."
Under a strict interpretation that is true. But ONLY because Charlotte’s LGBT protections weren’t due to take effect until April 1. Private business can still have their own LGBT protections and they can allow transgender individuals to use the facilities they choose in their own buildings.
But municipalities are specifically barred from doing so in regards to bathrooms. Charlotte had such a provision which is now null and void.
Claim #4 – A possible business backlash against HB 2. Pat McCrory says, it’s not happening. "I’ve had very positive conversations with many, many different parties who go once they get the facts, we understand."
But McCrory has yet to say who those many different parties are. His opponents have been much more open. Equality NC sent us a list 44 companies who have publicly opposed the measure. They include Google, IBM, Lowes, and Bank of America.
Though those companies have not threatened any direct action due to the legislation.
But, in a statement, the Charlotte Regional Visitors Authority says “they have had prospective conventions withdraw interest in Charlotte as a host destination as a result of recent legislation.” They did not go into details of how much economic activity was lost. They did add however, “We strongly urge that state and local leaders find a resolution that represents the best interests of our city and state.”
So on our final claim, we’ll have to wait to see if lost convention spending is the only business backlash or if corporations are willing to do more than protest North Carolina’s HB 2 on Twitter.