HB2 battle draws to a close: North Carolina Democrats surrender.

The HB2 Battle in North Carolina Is Drawing to a Close. Democrats Surrendered. 

The HB2 Battle in North Carolina Is Drawing to a Close. Democrats Surrendered. 

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Expanding the LGBTQ Conversation
Dec. 19 2016 12:15 PM

Charlotte Rescinds LGBTQ Nondiscrimination Ordinance, Clearing the Way for HB2 Repeal

Incoming North Carolina Democratic Governor Roy Cooper, who campaigned vigorously against HB2.

Photo by Sara D. Davis/Getty Images

In a surprise vote on Monday morning, the Charlotte City Council repealed the LGBTQ nondiscrimination ordinance that provoked the North Carolina state legislature to pass HB2. Republican sponsors of HB2—which repealed local nondiscrimination ordinances and excluded transgender people from certain bathrooms—have previously asserted that they would rescind the law if Charlotte repealed its ordinance. Charlotte’s compromise measure will not take effect unless HB2 is “repealed in its entirety” by Dec. 31, 2016. Incoming Democratic Gov. Roy Cooper has stated that the legislature plans to meet on Tuesday to rescind HB2, and outgoing Republican Gov. Pat McCrory has confirmed that he will call a special session.

The Charlotte City Council’s decision to overturn its own nondiscrimination ordinance marks a stark and sudden reversal: Previously, both Mayor Jennifer Roberts and the city council had declared that LGBTQ rights are non-negotiable and refused to compromise with the Republican-dominated legislature. But apparently, Roberts has now decided that LGBTQ rights are, in fact, negotiable, and she used her city’s ordinance as a bargaining chip for HB2’s repeal.


Presuming the legislature upholds its end of the bargain and withdraws HB2, LGBTQ rights in North Carolina will revert to the status quo—with one critical exception: Transgender people will no longer be barred from using bathrooms in government buildings, including universities and agencies like the DMV. HB2’s most noxious and notorious provision required individuals to use the bathroom that corresponds to the sex on their birth certificate. Because some states legally prohibit individuals from altering the sex on their birth certificate, this clause effectively excluded a large class of transgender people from using myriad public bathrooms. If HB2 is fully repealed, as the Charlotte measure demands, transgender people will no longer be formally forbidden from entering government bathrooms.

So, does this compromise qualify as craven appeasement on Charlotte’s part? Perhaps, but it’s difficult to envision a superior solution. Charlotte’s ordinance, however noble, was invalid so long as HB2 remained on the books, and Republicans consistently refused to repeal HB2 without a concession from Charlotte. With HB2 gone, transgender North Carolinians will no longer suffer under a legal regime that denies the validity of their gender identity and banishes them from many public bathrooms. At the same time, businesses remain free to deny transgender people access to bathrooms—one evil that the Charlotte ordinance sought to address.

This fight, however, may not be entirely over. Charlotte remains free to draft a new LGBTQ nondiscrimination ordinance phrased carefully enough to placate Republicans. Massachusetts Democrats did exactly that earlier this year in response to Republican Gov. Charlie Baker’s concerns about bathroom molestation. The legislature modified its transgender rights bill to mollify Baker, developing a legal standard to establish an individual’s gender identity and ordering the state attorney general to create regulations under which predators who abuse the law can be prosecuted. Charlotte could do something similar. And Republicans in the legislature may decide that the new ordinance is benign enough to forgo renewing an old battle. HB2, after all, sparked a boycott that cost the state hundreds of millions of dollars. Even hard-core conservatives might agree that a modified nondiscrimination ordinance just isn’t worth another costly brawl.

Mark Joseph Stern covers courts and the law for Slate.