Sifting Through The Facts On House Bill 2

Apr 1, 2016

Lawmakers in Raleigh have passed numerous controversial bills in recent years, however, none has garnered the kind of national attention of House Bill 2.
Credit Jorge Valencia

North Carolina has been the epicenter of a national controversy for more than a week, after state lawmakers convened a special session to undo a Charlotte ordinance aimed at providing protections to people who are transgender. The General Assembly enacted legislation that superseded that local ordinance, and also went further in scope.

Since the passage of House Bill 2 (HB2) on March 23rd, businesses from across the state and country have weighed in, political rhetoric has been cranked up, and a national spotlight has shined brightly upon North Carolina.

The law is being referred to by many as the "bathroom bill", however the legislation is much broader than simply who is allowed to use which restroom. HB2 deals with authority between the state and local governments, and the ability of employees to sue over wrongful termination and discrimination.

What are the basics of House Bill 2?

This legislation bars municipalities from passing non-discrimination ordinances that cover entire communities.  Leaders in Charlotte can't pass a protection that covers people throughout the city. Neither can officials in Greensboro, Durham, Wilmington or any other community. The state has reasserted that it holds authority for that.

These municipalities can still have their own "in-house" policies, be it for bathrooms, hiring policies or best practices. The measures can't encompass entire cities. At the same time, House Bill 2 includes a non-discrimination policy. It protects people from discrimination based on "race, religion, color, national origin, or biological sex". The state law does not include protections for sexual orientation, or gender identity, among other groups.

Another key component of the bill eliminates the ability of workers to sue in state court over discrimination or wrongful termination. Employees who believe they have been discriminated against can still sue in federal court.

Did this law eliminate any protections that were in place?

Yes.

The new law eliminates some local protections; and forbids litigation in state court over discrimination.

Locally, there were several non-discrimination ordinances that were effectively eliminated by HB2. The cities of Asheville, Boone, Carrboro, Charlotte, Chapel Hill, Franklinton, Greensboro, Greenville, Raleigh and Winston-Salem had previously passed various ordinances aimed at protecting people in minority groups, including the LGBT community. Four counties - Buncombe, Mecklenburg, Orange and Wake - have also passed varying measures.

Some of these cities, such as Asheville, say the new state law does not affect their ordinances. Other localities, Greensboro and Winston-Salem to list two, are unclear on how the bill will affect local ordinances, programs and policies designed to help minority business owners.

Other cities, like Carrboro and Raleigh, have had their housing discrimination ordinances preempted. Their existing policies required that any contractors doing business with the city had to have policies of their own prohibiting discrimination against people who are gay or transgender.

From a statewide perspective, the law also eliminates a legal option for residents. Previously, they were able to file a state lawsuit over a discriminatory firing. That is no longer an option. Many opponents of HB2 have said this is the more significant issue in play, and eliminates recourse for people who face discrimination. Supporters of HB2 contend that employees still have the option of filing suit in federal court. While this is true, federal courts have a shorter statute of limitations for such claims.

Governor Pat McCrory said in a video released this week, as well as in statements, that House Bill 2 doesn't take away any existing protections. Simply put, that is not true. There have been multiple fact-check efforts, including one by Politifact.

Multiple calls and emails to the Governor's office by WUNC were not returned.

In this battle of power, and authority, between the state and local governments, who has the upper hand?

The state.

North Carolina is a "Dillon's Rule" state. It's possible you've heard a reference to Dillon in newspaper or web articles, or during broadcasts. Dillon's Rule dates back to reconstruction and is tied to the Tenth Amendment to the U.S. Constitution. It is a common rule allowing a state legislature to control local governments. North Carolina and 38 other states have the rule in place.

You can read much more about "Dillon's Rule" here.

What did Charlotte's ordinance do, anyway?

In late February the Charlotte City Council voted 7-4, passing a measure that gave protections to people in the LGBT community. The ordinance prohibited discrimination based on "marital status, familial status, sexual orientation, and gender identity and expression". These protections dealt with the selection of contractors for city work, passenger vehicles for hire (Taxis, Uber, Lyft) and public accommodations. That third area - along with businesses that provide goods and services - is where the bathroom issue emerged.

The issue was not new in Charlotte. The City Council voted it down in March of 2015. That defeated measure had removed a bathroom component.

The ordinance would have taken effect April 1st. State lawmakers were not scheduled to reconvene in Raleigh until April 25th. They called the one-day session to prevent the Charlotte measure from being implemented.

Can people who are transgender use the restroom of their identified gender if they change their birth certificate?

Yes.

Under HB2, people who have gender reassignment surgery can change their birth certificate and use the bathroom that aligns with their identity. However, many transgendered people do not have gender reassignment surgery. Transitioning is expensive, not everyone can afford it, and some people choose not to.

North Carolina birth certificate changes are handled through vital records, which is part of the State Department of Health and Human Services.  For people who are transgender, a doctor must certify that a reassignment has taken place. Advocates for the LGBT community say the changes can be onerous and present a high bar.

An amendment to a birth certificate can be made by trans folks as follows [from subsection (b)(4)]:
"A written request from an individual is received by the State Registrar to change the sex on that individual's birth record because of sex reassignment surgery, if the request is accompanied by a notarized statement from the physician who performed the sex reassignment surgery or from a physician licensed to practice medicine who has examined the individual and can certify that the person has undergone sex reassignment surgery."

House Bill 2 includes the phrase "Biological Sex" 13 times. What is that term getting at?

Considering the birth certificate piece of HB2, it would perhaps be more accurate for the legislation to read "Biological sex as denoted on the birth certificate."

The biological definition of sex can be tricky. Biological sex could refer to chromosomes (XX, XY), internal organs (uterus, testes), or the external genitalia of a newborn (and what goes on the birth certificate). When it comes to sex, many biologists say there is a continuum of femaleness and maleness.

Was House Bill 2 rushed through?

The initial version of HB2 was not released to the public until after 10am on March 23rd. Governor McCrory signed it into law at 9:57 that evening. When the bill was distributed in a committee meeting that day, a Democratic lawmaker said she had not yet seen the bill, and asked for five minutes to review the document.

Republicans have shown a tendency to rush, or cram, legislation through with relatively little time for vetting, discussion and debate. Members of the GOP say this is a practice that was also used by Democrats when they held the majority.

Is this "the most sweeping anti-LGBT bill in the nation"?

This is a subjective talking point that is hard to ultimately prove, or disprove. Supporters of HB2 say it establishes a statewide non-discrimination policy, something that wasn't on the books previously. Opponents say the measure tacitly leaves out the LGBT community and removes protections from people who want to file state lawsuits for wrongful discrimination.

Does this law give North Carolina an anti-discrimination policy that's tougher than the federal government's?

Republicans say yes, (most) Democrats say no. Again, this is subjective and can be interpreted different ways.

Here's one thing we do know:

(Via WSOC TV)
The U.S. Justice Department filed a "statement of interest" in July declaring that failure to allow transgender students to use restrooms that correspond with their gender identities amounts to sex discrimination under Title IX. In North Carolina, LGBT advocates warned that the new law puts billions of dollars in federal educational funding at risk.

That statement from D.O.J. was filed as part of a legal challenge that is playing out in Virginia. A high school student named Gavin Grimm filed suit. Grimm was born female and identifies as male. That case is now before the Fourth Circuit Court of Appeals in Richmond. The Fourth Circuit has jurisdiction over North Carolina, and a ruling in the Grimm case will set precedent and offer an indication of how a challenge to House Bill 2 could play out.

A federal lawsuit against HB2 was filed March 28.

There has been some talk about federal Title IX education funding? Is that in jeopardy?

This is a talking point from opponents of HB2. They contend that if the courts rule high school students can choose the bathroom that aligns with their identity, and North Carolina law forbids them from that, it throws federal funding into question. North Carolina receives about $4.2 billion each year in Title IX funding.

Supporters of HB2 say no state has ever lost Title IX funding and that it is premature to even have this conversation.

How does this law affect the minimum wage?

State law had already prohibited municipalities from passing measures that mandated a minimum wage different from the state. That has not changed. What changed with HB2 is that municipalities cannot require contractors or sub-contractors to pay more than minimum wage.

Several municipalities, including Greensboro and Wake County have plans to raise the minimum pay for municipal workers. Lawmakers say this bill does not prevent a city, or county, from paying its own full-time employees a higher wage.

What are the financial implications?

It's too early to tell.

Opponents of HB2 say jobs, investments and even tourism are threatened by the bill. The NBA All-Star game is scheduled to be in Charlotte in 2017. A company from New Jersey, Braeburn Pharmaceuticals, had plans to invest $20 million and fill 52-jobs at a facility in Durham. Both have come out against the HB2.

What CEOs and businesses have come out against House Bill 2?

On Thursday members with LGBT groups delivered a letter to Governor McCrory. It was signed by more than 100 businesses, opposed to the new law. Among the corporations that signed on - American Airlines, Bank of America, Wells Fargo, Facebook, Red Hat, and Apple.

Chad Griffin, president of the Human Rights Campaign, speaks to the media Thursday, March 31, 2016 at the NC state capitol in Raleigh. Opponents of HB2 later delivered a letter signed by more than 100 major companies to Gov. Pat McCrory urging he and the North Carolina General Assembly repeal the radical provisions of discriminatory House Bill 2 in upcoming legislative session.
Credit Jason E. Miczek/AP Images

Governor McCrory has defended House Bill 2 and criticized Attorney General Roy Cooper for vowing not to defend the bill against a legal challenge. Cooper, a Democrat, is trying to unseat the Republican executive.
Credit Dave DeWitt

What CEOs and businesses have come out in support of House Bill 2?

Tami Fitzgerald with the NC Values coalition has distributed a list of individuals who support the measure.  She says the list includes dozens of individual employees and small business owners.

What are the campaign implications, so far?

Governor McCrory is up for re-election. Roy Cooper, the long-time state Attorney General is challenging him. Political experts are expecting this to be among the closest of the 12 gubernatorial races in the country this year. The two have continued to criticize each other since the passage of HB2. McCrory has accused Cooper of not doing his job. Cooper, who has stated he will not defend the law in court because it goes against a longstanding policy in his office, says the measure is a "national embarrassment."

Each campaign has sent out multiple requests, trying to use the controversy as a way to solicit financial support.

What comes next?

Governor McCrory has said he is open to small changes to improve the bill. Though at this point, it remains unclear what such changes might be. 

Senate leader Phil Berger took a different tone. In an email to the press corps Thursday, his spokesperson said:

"Sen. Berger has received a number of questions this afternoon regarding whether he has an appetite to make changes to House Bill 2.An overwhelming majority of North Carolinians we've heard from support the bathroom safety bill. So the short answer to those questions is no."

The Republican led General Assembly, coupled with a Democratic Attorney General who has not defended some other pieces of controversial legislation, has gone to court before. It appears unlikely that state lawmakers or the governor would roll back any significant portions of the bill that just became law.

In Virginia, a ruling is expected soon in the federal lawsuit of a high school student who is transgender. That case centers on the right to use a bathroom that aligns with gender identity. And a decision from the three judge panel in the Fourth Circuit Court could give a glimpse of how HB2 will play out, once it gets its likely day in a Richmond court room.

State lawmakers return for their short session on April 25th.