Just when you thought North Carolina had moved on from debating bathrooms, House Bill 2 is back in the headlines thanks to a surprise move by Gov. Roy Cooper.
Cooper wants to resolve a lawsuit brought by the ACLU and LGBT groups that challenges the HB2 replacement law that Cooper signed in March. The replacement law – the result of a compromise between Cooper and legislative leaders – repeals the requirement that people visiting government facilities must use the bathroom that matches the gender on their birth certificate. Until 2020, it bans local governments from passing nondiscrimination ordinances similar to the one in Charlotte that sparked the whole controversy.
The new law creates a sort of “don’t ask, don’t tell” system for bathrooms – nothing explicitly prevents transgender people from using the bathroom that matches their gender identity, but nothing in state law tells them they can. The ACLU says that’s discriminatory, but it’s willing to drop the lawsuit if a judge signs off on a deal the plaintiffs reached with the Cooper administration.
That deal would make it clear that “transgender people are not prevented from the use of public facilities in accordance with their gender identity” – but only in bathroom facilities controlled by state agencies controlled by the governor’s administration. So you’d have a transgender-friendly bathroom policy in state museums and highway rest stops. But there would be no policy, for example, at the State Fairgrounds controlled by Agriculture Commissioner Steve Troxler.
It’s far from an ideal solution for the LGBT advocacy groups that want to see these bathroom policies everywhere. And Cooper’s proposed deal has angered legislative Republicans, who are also parties to the lawsuit and don’t support the compromise. They’ve accused the governor of breaking the deal reached in March, and it’s hard to see how Cooper’s proposed policy wouldn’t violate the law he signed. That law is clear that only the state legislature can set bathroom access policies for government facilities, not individual agencies.
So why’s Cooper doing this? “For too many reasons, it is not in our state’s best interest to remain in drawn-out court battles that still linger because of HB2,” he said in a recent news release.
I can’t help but think timing is an issue too. The last thing Cooper wants is to have the bathroom issue litigated in open court next year as he tries to rally Democrats to the polls to break Republicans’ veto-proof majority in the legislature. Cooper’s HB2 compromise bitterly divided Democrats, many of whom thought he was caving in to discrimination. That anger toward Cooper appears to have died down, but it could easily flare up again at a crucial time for Democratic Party unity.
Still, Cooper’s taking a gamble here. The GOP-controlled legislature could easily return to Raleigh and reinstate House Bill 2 in its original form. That would put North Carolina back in the center of the culture wars, and boycotts and other economic damage would crank up again. The governor appears to be betting that the legislature isn’t eager to fight that battle again – despite their stated concerns that transgender-friendly bathroom policies could open the door to sexual predators.
So far, Republicans aren’t talking about legislative retaliation, and instead they’re asking the federal court to reject Cooper’s proposed settlement. Their latest legal filing argues that the court lacks the authority to OK the settlement and that the deal “violates North Carolina law, and that it exceeds the authority of the Executive Branch Defendants.”
The GOP hasn’t said much about the executive order Cooper signed on the same day as the settlement was announced. That order bans hiring discrimination in his administration on the basis of sexual orientation and gender identity – and the policy will extend to private companies that contract with the state. Will legislators let that policy stand, or will we see more battles over LGBT rights? With an election on the horizon, it’s anybody’s guess.
Colin Campbell is editor of the Insider State Government News Service. Follow him at NCInsider.com or @RaleighReporter. Write to him at firstname.lastname@example.org.