Due to Republican opposition, it probably won’t work.
North Carolina Gov. Roy Cooper (D) is still trying to find a way to repeal the state’s anti-LGBTQ law passed by his predecessor.
HB2, signed into law last year by then-Gov. Pat McCrory (R), overturns and bans local statutes that protect LGBTQ people from discrimination based on sexual orientation or gender identity. It also prohibits transgender people from using bathrooms and locker rooms that align with their gender identity in schools and government buildings — due to a baseless myth that letting trans people use the bathroom or locker room for their gender identity would lead to men posing as trans to sexually harass and assault women in women’s facilities.
The law has run into enormous political opposition, drawing boycotts from big business entities like PayPal and the NBA. And the law’s unpopularity is one of the reasons cited by pollsters for why Cooper defeated McCrory in the November election.
For the latest repeal proposal, Cooper put forward a deal that would repeal HB2 in its entirety — with two big catches. First, it would require that cities and counties that propose new LGBTQ nondiscrimination ordinances give the state legislature 30 days’ notice. Second, it would increase penalties for crimes committed in public bathrooms and locker rooms.
Cooper argued that the repeal measure would do more to protect North Carolinians than HB2. “This proposal protects all kinds of people in public restrooms and dressing rooms,” he said, “and it sends a strong signal that the state is not going to tolerate these crimes.” (The research, however, suggests that harsher punishments don’t really deter crime.)
But the idea seems dead on arrival. For one, Senate President Pro Tem Phil Berger (R), who killed the last repeal attempt in December, said as much in a statement that misgenders trans women as “men”:
This proposal does nothing to address the basic privacy concerns of women and young girls who do not feel comfortable using the bathroom, undressing and showering in the presence of men. Gov. Cooper continues to dodge the question, but North Carolinians deserve to know his position on the key HB2 issue: Does he believe men should be able to go into women’s bathrooms and shower facilities?
And in a bit of a twist, LGBTQ groups have also come out against the latest repeal idea, arguing that it tries to address problems that are based on a myth and unduly burdens local governments trying to protect LGBTQ people. “Today’s proposal is yet another chance to fix this mess, but it adds unnecessary language addressing problems that simply do not exist,” said JoDee Winterhof, senior vice president of policy and political affairs at HRC, an LGBTQ advocacy group.
It might seem odd that one of North Carolina’s biggest political debates right now is about who can use a bathroom or locker room. But this is really about a much broader debate over LGBTQ and specifically trans rights — one in which bathrooms and locker rooms have gotten outsize attention because of a myth often deployed by religious opponents of LGBTQ nondiscrimination protections.
How North Carolina got to this point
North Carolina, like most states, doesn’t explicitly ban discrimination against people based on sexual orientation or gender identity in the workplace, housing, and public accommodations (hotels, restaurants, and other places that serve the public) — even though it does ban discrimination in such settings when it’s based on race or religion.
The city of Charlotte, over the past few years, tried to fix this by passing its own law that would grant LGBTQ people legal protections in public accommodations. In doing so, the local government hoped to make it clear that LGBTQ people should be able to go to a restaurant or hail a taxi without the fear of legally allowed discrimination.
Most North Carolinians support these legal protections. In a 2015 survey by the Public Religion Research Institute, 64 percent of North Carolina respondents said they favor laws that protect LGBTQ people from discrimination in jobs, housing, and public accommodations. That was a little below the national average of 71 percent, but still a strong majority in favor of such protections.
Some cities in North Carolina already forbade workplace discrimination against LGBTQ people, but the state as a whole currently legally allows anti-LGBTQ discrimination in the workplace, housing, and public accommodations. (Again, federal and state laws forbid workplace, housing, and public accommodations discrimination on the basis of, for example, race.)
But when Charlotte passed its own nondiscrimination law, Republican lawmakers, led by then-Gov. McCrory, took issue with a provision that allowed trans people to use the bathroom that aligns with their gender identity. So they moved to overturn Charlotte’s law in a special session on March 23. And with HB2 proposed and signed into law within 24 hours, North Carolina Republicans struck down all local LGBTQ nondiscrimination ordinances in the state and imposed anti-trans rules in school and government building bathrooms — suggesting the focus on bathrooms was part of a bigger ploy to undo all LGBTQ nondiscrimination protections.
The move triggered a national firestorm. PayPal and Deutsche Bank pulled expansions into the state that would have created hundreds of jobs. The NBA and NCAA pulled events from the state. Several musicians, such as Bruce Springsteen and Pearl Jam, canceled concerts in the state. A+E Networks and 21st Century Fox said they would reconsider using North Carolina as a filming location in the future. More than 200 major CEOs and business leaders signed a letter asking McCrory to repeal the law.
By Wired’s estimate, North Carolina as of September had lost $395 million — “more than the GDP of Micronesia” — as a result of the law.
Meanwhile, support for Republicans tanked in the traditionally conservative North Carolina, according to polls. HB2’s unpopularity among voters was widely credited as one of the major reasons McCrory lost his bid for reelection against Cooper.
This was entirely predictable, as other states that passed anti-LGBTQ laws have faced similar consequences. In 2015, when Indiana passed a religious freedom law that was widely misinterpreted as allowing anti-LGBTQ discrimination, businesses and celebrities threatened boycotts, drawing widespread media coverage. Eventually, the controversy forced the state legislature to clarify that the law is not meant to allow discrimination against LGBTQ people, but only after reportedly hurting its tourism industry.
But North Carolina lawmakers stood their ground even after McCrory’s loss to Cooper in the November election, frequently citing an often-used myth against LGBTQ protections.
HB2’s reason for existence is a total myth
Behind Republican lawmakers’ opposition to Charlotte’s ordinance is the bathroom myth: the idea that if trans people are legally allowed to use the bathroom that corresponds to their gender identity, men will take advantage of the law to enter women’s bathrooms to harass and sexually assault women. Republicans regularly cite this myth to argue that Charlotte’s law raised public safety concerns, as Berger’s own recent statement above demonstrates.
But even with the Charlotte ordinance, sexual assault remained illegal in Charlotte and North Carolina.
There’s also no evidence that nondiscrimination laws — and other policies that also let trans people use the bathroom for their gender identity — lead to sexual assault in bathrooms and locker rooms. In two investigations, Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had no increases in sex crimes after they enacted their policies.
Conservatives usually counter that there are examples of men sneaking into women’s bathrooms to attack women. But as PolitiFact reported, none of the examples cited in the US happened after a city or state passed a nondiscrimination law or otherwise let trans people use the bathroom or locker room for their gender identity. Instead, these seem to be examples of men doing awful things regardless of the law — which has, unfortunately, happened since the beginning of civilization.
One example is a case in Toronto, Canada, which now has a nondiscrimination law, in which a man disguised himself as a woman and attacked women in shelters. But the attacks happened months before Ontario (Toronto’s province) protected trans people in a nondiscrimination law. So the law couldn’t have been the cause.
Beyond this myth, some people are also, frankly, just bothered by the idea that someone in the same bathroom or locker room won’t share the same genitalia as them. But a lot of things happen in these facilities that people aren’t comfortable with — and people have historically managed to deal with it to accommodate others’ rights and needs.
So if there’s no risk of harm, it’s best, LGBTQ advocates argue, to let trans people use the facility for their gender identity without making them feel ostracized and discriminated against. (Discrimination is a big contributor to gender dysphoria, a medical condition among some trans people that can cause depression, anxiety, and even suicidal ideation.)
Still, the myth and concerns about bathrooms have persisted. And they’re a big reason that even as North Carolina’s anti-LGBTQ law continues to hurt the state’s economy and public image, Republican lawmakers have so far refused to repeal it.