Awary Roy Cooper walks in front of the red-carpeted stairs of the Executive Mansion and readies himself to deliver the news. It’s hard to tell who looks more thoroughly depleted—Cooper, eyes downcast, in a blue tie and crisp suit, or the gaggle of reporters covering the utter dysfunction that has come to define the General Assembly.
The governor’s Thursday-afternoon speech will cap off a nail-biting few days in North Carolina politics. Ever since the legislature passed the bill heard ’round the world—HB 2, the “bathroom bill”—the state has been thrust into international infamy.
The bill most notoriously mandated that transgender residents use public bathrooms that correspond to the gender on their birth certificates, rather than their gender identities. But it also blocked local governments from passing antidiscrimination ordinances. It was hastily ushered through the legislature in a one-day special session on March 23, 2016, and sent to then-governor Pat McCrory less than twelve hours later.
The instantaneous controversy surrounding the law left the state’s reputation as a tolerant outpost in the Deep South in ruins. The boycotts and soured business deals that followed hurt its economy, too. According to an Associated Press analysis released last week, HB 2 would have cost the state at least $3.76 billion over the next dozen years—a drop in the bucket compared to North Carolina’s $510 billion GDP, but substantial nonetheless. And last Tuesday, the other shoe dropped: the NCAA gave North Carolina a Thursday deadline to repeal HB 2 or lose championship games until at least 2022.
Collegiate athletics being what they are in the Tar Heel State, Republicans and Democrats alike had the motivation to finagle a deal that would somehow satisfy everyone, a Sword of Damocles hanging over their necks.
Enter Roy Cooper—four p.m., cameras rolling. He takes a deep breath.
“Today I just signed House Bill 142, which repeals HB 2,” he begins. “For over a year now, House Bill 2 has been a dark cloud over our great state. This is not a perfect deal or my preferred solution. It stops short of many things we need to do as a state. In a perfect world, we would have repealed HB 2 today and added full statewide protections for LGBT North Carolinians. Unfortunately, our supermajority Republican legislature will not pass these protections. But this is an important goal that I will keep fighting for.”
In January, during his inaugural address—after eking out a win over McCrory, following a campaign built around HB 2’s unpopularity—Cooper struck a more defiant tone: “When a law attempts to make any North Carolinian less in the eyes of their fellow citizens, I will fight it. I will stand up for you if the legislature cannot or will not.”
Some of those citizens now say Cooper has stabbed them in the back.
“Well basically, this repeal, which is not even really a repeal, is Roy Cooper selling us out,” says Angela Bridgman, a transgender woman from Wake County who spent Thursday protesting HB 142 at the Statehouse. “This is not what I voted for Roy Cooper for. I voted for a clean repeal. This is not what we’re getting. This is about getting our NCAA basketball games back.”
To be fair, repealing HB 2 was never going to be easy. Cooper tried to work something out in December. At his behest, Charlotte repealed its LGBTQ nondiscrimination ordinance—which had prompted the legislature to pass HB 2 in the first place—but the legislature botched its end of the deal. Democrats refused to support the repeal because it included a six-month moratorium on local governments passing nondiscrimination ordinances; conservative Republicans couldn’t shake their obsession with bathrooms as breeding grounds for deviancy.
This time, however, the NCAA’s deadline was upon us. So whereas four months ago, a six-month moratorium was unacceptable, HB 142’s moratorium—which lasts until December 2020—was met with a sighing acquiescence, at least among many Democratic politicians.
But for the state’s rising activist base, the bill was an unacceptable compromise on civil rights—which, in their view, should never be open to negotiation.
Instead, in a twist of irony befitting this year-long debacle, Cooper himself became the target of Thursday’s protest organized by the Air Horn Orchestra, a group that pestered McCrory for eight months after he signed HB 2. This time, protesters convened in front of the Executive Mansion to annoy the Democrat inside. Bridgman was there, carrying a white poster that read, “We trusted you!” in purple block letters.
So while Cooper argues that something is better than nothing, progressive groups insist this something is merely HB 2-lite.
“Under HB 2 we had zero LGBT protections,” Cooper told reporters last week. “Zero. Today’s law provides for LGBT protections. Today’s law not only provides for LGBT protections now, but opens the door for more in the future.”
It’s “just a different kind of bad,” counters Ames Simmons, director of transgender policy at Equality NC. He points out that no one from the LGBTQ community was involved in the bill’s negotiations. “And particularly for Cooper to talk about what’s better or not better for the LGBTQ community, that’s an educated guess on his part, since he didn’t have any of us there at the negotiating table. So if he really were taking the safety of the community seriously, he would have involved us.”
Let’s start with what HB 142 does. First, it actually repeals HB 2; that is to say, its first provision wipes HB 2 from state statute. And if it had stopped there, progressives would’ve been happy.
But it didn’t. Instead, it tacked on a provision that prohibits any state agency, including school boards and public universities, from making their own rules about bathroom usage. Instead, the state legislature will have the final say on who can use what public facilities. In other words, while the law no longer mandates that you use restrooms that conform to your birth certificate—a laughably unenforceable provision—state agencies can’t take affirmative steps to become more welcoming to transgender people.
Again, had it stopped there, there probably wouldn’t have been much of an outcry. After all, this sort of pre-HB 2 status quo is the way most states operate. But again, it didn’t.
HB 142 also banned cities from passing new nondiscrimination ordinances regulating public accommodations or private employment practices (read: living-wage ordinances) until December 1, 2020, although fifteen of the sixteen nondiscrimination ordinances that were enacted prior to HB 2—including Raleigh’s—will go back into effect. These tend to prohibit discrimination against employees of governments and their contractors; Charlotte’s ordinance, which was repealed in December, went further by banning discrimination in public accommodations.
Until the end of 2020, North Carolina will remain an anomaly, one of only three states that restrict or forbid local governments from passing nondiscrimination ordinances. (The others are Tennessee and Arkansas.) House Speaker Tim Moore has said that the legislature will use the next two years to decide what kinds of nondiscrimination ordinances local governments should be able to pass.
Unless the makeup of the legislature changes, it’s hard to imagine LGBTQ residents will be included: currently, North Carolina is one of thirty states that omit sexual orientation and gender identity from statewide nondiscrimination protections.
Together, LGBTQ advocates argue, these two provisions all but nullify the first. As Cathryn Oakley, senior legislation counsel for the Human Rights Campaign, puts it, “This is not a replacement. It’s not a repeal. It’s simply substituting one discriminatory bill with another discriminatory bill.”
Indeed, after signaling his support for HB 142, Cooper quickly found himself fielding furious attacks from LGTBQ advocacy groups. On Twitter, the HRC vowed to take the politicians who voted for it to task. “We’ll be looking at our friends and our so-called friends in the legislature and making sure that we hold them accountable for their votes,” Oakley says.
The NAACP released a statement calling the legislation an “insult to civil rights” and a “sweeping act of hubris by the legislature” that “takes power from officials elected by the people to serve the rights of the people,”
The ACLU and Lambda Legal dubbed it a “fake repeal.” Chris Sgro, the executive director of Equality NC and a former Democratic state representative, said the bill was a “deal made between Governor Cooper [and Republican leaders] Phil Berger and Tim Moore that once again left out the ones most impacted by the discriminatory law—LGBTQ North Carolinians.”
“The compromise was painful and hurtful,” Carrboro-based political operative and former congressional candidate Thomas Mills wrote Friday on his website, politicsnc.com. “… To argue that the new law didn’t go far enough is fair, but to say it changed nothing is dishonest. People who live in places where nondiscrimination ordinances were passed now have those protections in place once again. Transgender people can use the bathroom of their choice. Local governments can force contractors to offer protections to their employees. That’s better than where we were when we woke up yesterday.”
Indeed, many of the Democratic legislators who railed against HB 2 but supported the repeal insisted they were doing so for the LGBTQ people who denounced it.
“I didn’t want the LGBT community to continue to suffer, I didn’t want them to still face this, and that’s why the vote I took yesterday was really a vote of conscience for me,” Democratic state Representative Duane Hall, whose district covers Raleigh and Cary, told the INDY Friday. “I wanted more, I argued for more, but I honestly feel this gives us more than we had yesterday.”
“I don’t think the relevant question is whether this is better than HB 2,” Oakley says. “I think the relevant question is could folks have worked harder to get a full repeal, and why don’t we have a full repeal? And how come these people who believe that they are looking out for the best interests of the LGBT community, at what point did they decide it was OK to compromise on civil rights?”
There was chaos inside the General Assembly Thursday morning. Like the bathroom bill itself, HB 142 moved at breakneck speed and with little warning. The deal had only been announced late the night before; confusion abounded about whether, after a year of bitter partisan clashes, this version would actually squeak through.
It started on Tuesday afternoon, when Scott Dupree of the Greater Raleigh Sports Alliance announced that someone “very close to the NCAA” had told him that, if the state didn’t repeal HB 2 within forty-eight hours, it would be blacklisted from championships for six years. A few hours later came a hastily arranged press conference in which Moore and Senate leader Phil Berger announced that they had “in principle” agreed to a compromise proposed by Cooper.
But then, in classic North Carolina political fashion, Cooper denied making the proposal. Berger’s office then released a batch of emails from Cooper’s people and Senate staffers that seemed to indicate something had been discussed. And just as quickly as it began, the press conference was over, leaving observers bracing themselves for a marathon.
Wednesday passed with plenty of speculation but few updates. By evening, those remaining in the Statehouse were bleary-eyed. Finally, some real news arrived: a deal. At nine fifteen a.m.—less than three hours before the NCAA deadline was set to expire—the Senate Rules Committee would be taking the first vote.
The next morning, the legislature was abuzz. As people streamed into the Rules Committee, others gathered for a press conference organized by Equality NC. The Rules Committee room quickly filled up. “Wait, is something important happening today?” a cameraman joked. No one laughed.
The committee meeting was generally uneventful. A few people spoke, including John Rustin of the N.C. Family Policy Council, and then it was on to a voice vote. It passed. Then the Senate floor.
Outside, Angela Bridgman said she felt betrayed by Cooper and Democratic state lawmakers. “I feel like they’re so in a hurry to make a deal that they’re willing to throw us under the bus so they can say they did something,” she said. “They did nothing. In fact, what they did was they made matters worse.”
In the Senate, Democratic leader Dan Blue of Raleigh pledged his support. In a statement to the INDY, Blue rationalized his vote as “a small step towards progress in this state. In passing this bill against the NCAA deadline, we were able to get a contentious Republican supermajority to do the right thing for the wrong reasons.”
Only one senator—Republican and staunch HB 2 supporter Dan Bishop of Mecklenburg County—spoke against HB 142, and the Senate quickly voted 32–16 in favor of the replacement. Six Democrats voted no: Jay Chaudhuri, Don Davis, Valerie Foushee, Jeff Jackson, Floyd McKissick, and Mike Woodard.
In an email, Chaudhuri, who represents Raleigh, says he voted against the bill because he “could not now support a compromise that extends the moratorium for four years, thereby prohibiting cities and counties from adding protections for our most vulnerable citizens. Second, I have serious concerns about the statewide preemption of multioccupancy restrooms based on the unfounded argument around bathroom safety and privacy.”
After a brief respite, HB 142 went to the more fractious House. The room was packed to capacity, with spectators placing bets on whether it would pass. “The Democrats haven’t been this divided since Bernie,” someone said.
Make no mistake: the Republicans, whose right wing hated the idea of repealing HB 2, needed Democratic votes, and those Democratic votes were no sure thing. On Wednesday afternoon, Representative Cecil Brockman, D-Guilford, one of two openly LGBTQ lawmakers, slammed the door so violently after hearing about the deal that it sounded like an explosion had gone off. Someone sprinted into the press room, genuinely panicked.
Kicking off the House debate, a group of Republicans asked to delay the vote until the following Tuesday because it had come about so rapidly; the motion failed. Then, a string of Democrats—including Brockman—spoke out against it.
“The first point that I would like to make is this bill still legislates restrooms,” Brockman said. “For me, that is not a repeal of HB 2, if we’re still going to be telling local city councils and local boards what they can do as far as legislating restrooms.”
“This is so much bigger than basketball,” added Representative Deb Butler, D-Brunswick and New Hanover, the other openly LGBTQ legislator. “The people of North Carolina want us to repeal HB 2. That is all. They care about fairness, dignity. They look to us to create a safe and a welcoming environment for all. The LGBT community, our families, our children, and the people who love and care for us do not support this bill. We would rather suffer HB 2 than to have this body one more time deny us the full and unfettered protections of the law.”
On the other hand, Democratic Representative Mickey Michaux, a civil rights veteran, said he was supporting the bill because he didn’t want to “throw my governor under the bus.”
In this case, it seemed, party loyalty trumped ideology.
Let’s cut to the end: the House voted 70–48 to repeal HB 2. Of those seventy votes, thirty came from Democrats.
Which brings us back to where we started: Cooper’s press conference, after a dizzying two days of partisan tug-of-war.
For Cooper, it should have been a moment of triumph—finally announcing the repeal of a law that had caused so much anguish. But Cooper didn’t seem to be in celebratory mood. The progressive groups that rallied to his banner during the election were already lashing out. He addressed the press corps in somber, measured tones. As he spoke, he grimaced more than he smiled.
“I believe with all my heart that this is the right thing to do,” he said. “I thought about it. I prayed about it. I talked to many people about it. It does take an important step forward.” The bill didn’t go as far as he wanted, Cooper conceded. He would have liked to see a clean repeal. But that was impossible.
“This was the best deal we could get,” he stressed.
Like all such speculations, we’ll never know if that’s really true. We’ll never know how things would have turned out had Cooper held the line, ignored the NCAA’s deadline, and vetoed HB 142. Perhaps lawmakers would have brought LGBTQ groups into the conversation, resulting in a more palatable repeal, one that didn’t make Angela Bridgman feel like she’d been sold out or activists doubt whether their so-called allies cared more about money and political machinations than the civil rights of vulnerable populations.
Or—given the makeup of the legislature—maybe none of that would have happened. Maybe HB 2 would still be on the books, now and for years to come, and Republicans would have successfully blamed Cooper for costing the state basketball games and economic development, making it all the more likely that someone like Lieutenant Governor Dan Forest, an ardent HB 2 supporter, would defeat him in 2020.
There is no crystal ball with which to view this alternate reality. In the reality we can see, two questions remain, with no clearanswers: How deeply will this affair strain progressives’ relationship with the state’s establishment-friendly Democratic Party, and what will that mean for the left going forward? And how different will life be for LGBTQ North Carolinians now that HB 2 has been replaced with HB 2.0?
Another question—apparently the most important question to state leaders—was answered Tuesday morning. The NCAA announced that, because of HB 2’s repeal, North Carolina was again in the running to host championship events.
This article appeared in print with the headline “Lipstick On A Pig.”