The Final Death of North Carolina’s ‘Bathroom Bill’
The state’s ban on local protections for LGBTQ people expires today. But new fights lie ahead.
CHAPEL HILL, N.C.—Allison Scott has waited years for this day to come. This day, specifically. Scott’s job is advocating for LGBTQ rights in the South, and for four years, her home state of North Carolina has prohibited towns and cities from passing new protections for queer people. Today, that ban is finally dead—and North Carolina has an opportunity to change the reputation it earned in the 2016 fight over H.B. 2, the so-called bathroom bill.
Scott, the director of policy and programs at the Asheville-based Campaign for Southern Equality, believes that, despite its eventual repeal and replacement, H.B. 2 encouraged homophobia and transphobia in North Carolina and across the country. The bill passed just a few months after Scott came out as a transgender woman. “H.B. 2 was definitely not the start of hate or discrimination,” she told me. “But it did seem to symbolically kick off a national movement around really hurtful laws, or rolling back protections.”
[Read: The true harm of bathroom bills]
Although H.B. 2 provoked an enormous backlash for its bathroom provision—which banned transgender people from using bathrooms that corresponded with their gender identity—the bill also prohibited local governments from applying new protections for LGBTQ individuals to the operations of private businesses, among other things. Under substantial pressure, legislators replaced H.B. 2 with a new bill, H.B. 142, a bipartisan compromise that no longer included the bathroom measure but extended much of the rest of H.B. 2 until after the 2020 election. Today, those provisions expire—and no one quite knows what will happen next.
Passing new local protections in North Carolina could be the key to wider changes across the South, Scott and her allies argue. For queer-rights advocates, local legislation has become more crucial than ever, because Donald Trump and his Republican allies have rolled back federal and state protections over the past four years. But major obstacles to this plan lie ahead.
Among the most significant is that the Republican-run state legislature could try to renew the state’s ban on local protections—or even resurrect H.B. 2 itself. H.B. 2 first arose in response to the city of Charlotte’s passage of a local LGBTQ-rights ordinance. In 2016, the state GOP “decided that culture-war issues ought to take precedence over traditional conservative preference for local control,” The Atlantic’s David A. Graham wrote at the time. Sure, H.B. 2 went on to cause massive economic and reputational problems for the state, and arguably contributed to Republican Governor Pat McCrory’s defeat later that year. But the expiration of its replacement essentially resets the state’s laws to the moment before Charlotte passed its ill-fated local protections. It’s possible that if LGBTQ-rights advocates try again, Republicans in the legislature could respond the same way they did in 2016—although Roy Cooper, the state’s Democratic governor, would have the power to veto a resurrected H.B. 2.
Although President-elect Joe Biden’s victory may have rebuilt his “blue wall” in the Midwest, at the presidential level, the southern region of the United States remains an almost unbroken sea of red. Trump won North Carolina by tens of thousands of votes, and Republicans held on to their majorities in both houses of the state legislature. North Carolina is one of 13 states that don’t treat crimes based on gender identity or sexual orientation as hate crimes. The state has limited protections for transgender people, and it only just recently outlawed the use of federal funding for anti-gay “conversion therapy”—which is still legal in the state.
A majority of North Carolinians, however, back new LGBTQ protections in the state. More than two-thirds of North Carolina voters support laws that protect LGBTQ people from discrimination in jobs, public accommodations, and housing, a 2019 poll found. But laws there, and in the broader South, rarely reflect the reality that the South has always been home to queer people—and that substantial public support for their rights exists. “When you look at the history of LGBTQ communities and identity formation, we’ve always been policed,” E. Cram, a communications professor at the University of Iowa who researches queerness in rural areas, told me. “We’ve always had to live our lives in excess of the law.”
Supporters continue to hope that new protections are possible. H.B. 142, the Republican legislature’s replacement for H.B. 2, “was a compromise that kept discrimination in the books,” says State Representative Pricey Harrison, who voted against H. B. 142 because she believed it would worsen homophobia and transphobia in North Carolina. “Our state is very politically divided. We’ve got pockets of blue, but then once you go outside of that, it’s not as welcoming. It’s really frustrating, because we have a vibrant queer community here.”
[Read: America’s profound gender anxiety]
Reform is always difficult in a sharply divided state. But the city of Charlotte reportedly met with LGBTQ organizations in October to prepare for passing more progressive legislation after the ban’s expiration. Equality NC, the oldest statewide LGBTQ-equality organization in the country, endorsed more than 140 candidates for local office this year; 83 of those candidates have won so far, including seven newly elected officials who are openly LGBTQ. The group is planning a joint town hall with Scott’s Campaign for Southern Equality to educate elected officials and the general public about the renewed legislative power cities now have.
Although neither organization would detail its specific plans for the next few years, part of their work will involve leveraging public support for LGBTQ rights. “We’ll essentially be laying out the landscape of life for LGBTQ North Carolinians and urging supporters of equality to contact their local elected officials to take action surrounding nondiscrimination,” James Michael Nichols, Equality NC’s director of communications, told me.
Kendra R. Johnson, Equality NC’s executive director, doesn’t think the legislature will resurrect H.B. 2, even if municipalities pass new protections. “I’m not a betting person,” Johnson told me “but I think you’d be hard-pressed to find anyone in North Carolina working in public office who does not understand the devastating impact [H.B. 2] had on our reputation. I don’t anticipate that this is the bone that folks would choose to pick.”
Regardless of what local lawmakers are able to do, they still won’t have control when it comes to public-bathroom access. That’ll still remain squarely in the hands of the state to regulate. A North Carolina federal judge approved a settlement in 2019 that grants transgender people the right to use bathrooms that correspond with their gender identity in federal buildings only. Transgender North Carolinians still have no affirmative legal right to use bathrooms corresponding with their gender in many places, including restaurants and local businesses. “For people who are able-bodied and cisgender, they take for granted the ease of accessing a public space,” Cram said. These laws “regulate what bodies are permissible to move through public space.”
Today, Scott still calls H.B. 2 “a bill of trauma” for her and others like her. “I saw how people weaponized it not just to deal with bathrooms,” Scott said. “They wanted to remove me and my livelihood. They wanted to take me out of my place of work. They wanted to erase me from public places. And the trauma of that is going to be with me forever. It’s going to be with other trans and nonbinary people forever, as long as we’re alive.”