After months of unceasing demands from LGBT advocates, the NCAA, and big business, North Carolina’s legislature finally gave in, seduced by the elusive promise of political compromise. On Thursday, the majority of the state’s lawmakers voted to undo nearly all of HB2, a law that protected citizens’ privacy rights in sensitive facilities like changing rooms and shower facilities.
Two things stand out about the drama surrounding HB2’s repeal. First is the incessant bullying by the NCAA, the NBA, and other big businesses that led to the law’s demise. Just last week, the NCAA reiterated its threat that unless HB2 is repealed, it will not schedule any upcoming basketball tournaments in North Carolina.
Judging by their stance against HB2, the NCAA and NBA apparently object to separating men and women based on obvious biological differences between the sexes.
{mosads}This is quite ironic, of course, given that the NCAA and NBA divide men and women into different leagues because of their physical differences. It’s hard to believe that the leaders of those organizations have a principled objection to HB2’s sex-based regulation of changing facilities and restrooms. And if they do, it’s even harder to fathom how they’ve missed the irony in it.
HB2, which was a legislative response to a troublesome Charlotte ordinance that added “sexual orientation” and “gender identity” to local law, accomplished two goals. First, it made crystal clear what had been long understood about sex-specific changing facilities, showers, and restrooms in public buildings: that access is based on individual’s’ sex (not their claimed gender identity).
Citizens needed this clarity because the Charlotte ordinance authorized any individual who professes a cross-sex identity to access facilities reserved for the opposite sex. That change in local law raised significant privacy concerns (many people understandably object to sharing a locker room with a person of the opposite sex) and safety issues (male sexual predators could gain access to women’s facilities by falsely claiming a cross-sex identity).
The second goal of HB2 was to ensure that any new classification for nondiscrimination laws would be established at the state level (thereby preventing cities and counties from following Charlotte’s lead). Efforts to extend those laws from status-based classifications like race to conduct-based classifications such as sexual orientation raise important and hotly debated policy questions.
Most notably, sexual-orientation laws have been used to violate the conscience rights of artists who hold (in the words of the U.S. Supreme Court) “decent and honorable” beliefs about marriage.
Those individuals — who include a cake artist in Colorado, a filmmaker in Minnesota, and a photographer in Wisconsin—are happy to create work for gays and lesbians in nearly all circumstances, but cannot in good conscience participate in or create expression that celebrates a same-sex marriage.
Whether these people should be punished for their beliefs about marriage is a question that, the North Carolina legislature determined, should be decided in the state capitol.
North Carolina is not the only state to preempt municipalities from addressing these sorts of issues. In 2011, Tennessee enacted a bill to accomplish that same goal, and Arkansas took a similar step four years later.
The Tennessee law was unsuccessfully challenged in court, and an attempt to overturn the Arkansas law, which so far has not succeeded, is pending before the courts in that state.
But North Carolina’s HB2 is no longer on the books, thanks to the recent move by the state’s legislature. In HB2’s place, lawmakers added two short provisions. The first says that the legislature (not state executive officials or local government officials) has authority to regulate “access to multiple occupancy restrooms, showers, or changing facilities.” And the second provides that local governments in the state may not “enact or amend an ordinance regulating private employment practices or regulating public accommodations” until Dec. 1, 2020.
This means that the new bill indefinitely disables local governments from regulating access to changing facilities, showers, and restrooms, and that it temporarily removes their ability to address private employment issues or places of public accommodation.
The other notable takeaway from the HB2 saga is the reminder that on some issues at certain times in history, compromise is not possible. LGBT advocates, like Sarah Gillooly of the ACLU of North Carolina and Chad Griffin of the Human Rights Campaign, have come out in full force against HB2’s repeal — all because it didn’t go far enough. Their statements show that compromise is impossible on any issue that LGBT groups care about.
To be sure, compromise has become a rallying cry of some. And I, for one, wish that it were possible to achieve on these contentious issues—a step toward dissipating some of the mounting political strife in our country. But in truth, as HB2’s history illustrates, real compromise on these matters is little more than a pipe dream.
Realizing that the NCAA’s posturing on HB2 has its roots in the demands of LGBT advocates allows us to (somewhat confidently) predict the NCAA’s next move. And if I were to place a wager, I wouldn’t bet on catching a Final Four in the Tar Heel State anytime soon.
North Carolina’s lawmakers acted to appease LGBT groups and they’ve already learned that they missed the mark by a mile. And if they hoped to curry favor with groups like the NCAA, they will almost surely find that they’ve failed there, too. This quest toward compromise thus leaves a lot to be desired. May it serve as a lesson to others who flirt with this perilous path.
Jim Campbell is senior counsel with Alliance Defending Freedom, which defended HB2 in court before it was repealed.
The views of contributors are their own and not the views of The Hill.