A half-baked, poorly vetted and mean-spirited law

By: - April 4, 2016 1:30 pm
Photo courtesy Phil Fonville
Photo courtesy Phil Fonville

Yes, it was a pretty neat trick — one bill that manages to expose many vulnerable North Carolinians to unfair, hurtful treatment, that threatens to put a dent in the state’s economy, and that subjects this state to national ridicule as a redoubt of unhinged intolerance.

All the while making a mockery of the legislative process and trampling the interests of people whom the state should be shielding from discrimination, in a desperate effort to score cheap political points among the uninformed and bigoted.

All together now: Yee-haw!

The law now infamously known as House Bill 2 was written in secret at the behest of the General Assembly’s Republican leaders.

It was tossed like a grenade amidst legislators summoned by those leaders to Raleigh for an extraordinary special session on March 23. Scarcely 12 hours later, it had cleared the House and Senate and been signed by Republican Gov. Pat McCrory – who had declined to call the session but who then defended the bill whose pell-mell passage was its sole objective.

Public safety was at stake, McCrory and his allies claimed. If they believe that, they need to pay more attention to how the real world actually works. The risk of transgender women – or even, improbably, of men masquerading as such — doing inappropriate things in women’s restrooms has to be minuscule.

How do we know? Because transgender individuals have been using those restrooms routinely, and how many assaults or molestations have occurred? Obviously, not many – or we’d have heard about them. The sponsors of H.B. 2 would have made sure of that.

Progress in Charlotte

The bill was cast as a response to changes in the City of Charlotte’s anti-discrimination ordinance that, among other things, allowed transgender individuals to use public, single-sex restrooms or locker rooms corresponding to their new gender identity.

So, we had to endure the scenarios conjured up by Sen. Phil Berger, the chamber’s President Pro Tem, in which adult men disguised as women would be allowed to run amok in facilities full of little girls. Delightful. And as if there weren’t other ways to prevent that kind of misbehavior than telling someone who lives her life as a woman that she has to use the men’s room.

Even if H.B. 2 had been aimed strictly at blocking the Charlotte measure, it would have amounted to grievous interference with locally elected officials’ good-faith efforts to reflect positive community values. Those values in this case rested on a well-considered understanding of transgendered people’s legitimate physical and emotional needs, and on a respect for their dignity as human beings.

But the sad truth is that the bill’s reach was grossly broadened so that the law now in place strips away whole layers of anti-discrimination safeguards, both actual and potential. It does that by what it says and also by what it doesn’t.

The law purports to achieve “statewide consistency in regulation of employment and public accommodations.” To that end, statewide anti-discrimination standards are imposed that supersede any local rules such as Charlotte’s.

The state’s declared policy is that job-seekers and job-holders should not be discriminated against “on account of race, religion, color, national origin, age, biological sex or handicap.” Places of public accommodation, and their services, should be available to everyone “free of discrimination because of race, religion, color, national origin or biological sex.”

Conspicuously missing from both categories, along with gender identity, is the gauge of sexual orientation. In other words – even with the legislature defining the groups of people who should be protected from discrimination – a decision was made to omit gays and lesbians. That is a huge problem, fueling much of the outrage that has since come to a boil in North Carolina and beyond.

In the crosshairs

The legislature, it has to be noted, in its recent phase under Republican control has been steadfastly hostile to gay and lesbian rights. It successfully maneuvered to pass a state constitutional amendment barring same-sex marriage, and it approved, over McCrory’s veto, a measure allowing magistrates to opt out of performing same-sex weddings.

Setbacks in the courts clearly have done little to cool the homophobia swirling through the Legislative Building – a sentiment that, sad to say, appears to be alive and well among the state’s socially conservative voters. Administering another slap in the face to same-sex individuals, as they did with H.B. 2, must have had the feel of payback among legislators who also see gays and lesbians as useful political targets.

Experience tells us that precisely because of the animosity still felt toward gays and lesbians by some, they should be regarded as a protected class when it comes to legal safeguards against discrimination. And as my colleague Aleta Payne, the N.C. Council of Church’s deputy executive director, explains in this post, the Council’s policy is to honor people’s dignity and worth without regard to their sexual orientation.

There are pockets in North Carolina where such a policy isn’t necessarily as popular as sliced bread. But there also are many places where local values and priorities embrace the wider concepts of gay rights. What the legislature now has done is to tell those places that, even if their duly elected officials want local codes to reflect those values, they can forget about it. For conservatives who often rail against big-government overreach, this co-opting of local prerogatives amounts to hypocrisy with a capital H.

With H.B. 2, it just gets worse and worse. True, even with glaring omissions the law sets statewide anti-discrimination standards. But almost incredibly, it goes on to bar anyone from using the state courts to have those standards enforced! The task of responding to complaints is left to the Human Relations Commission, an agency within the executive branch and thus more exposed than the courts to political and budgetary pressures.

Of course, someone experiencing discrimination could still file suit in federal court. But that is a more time-consuming and expensive process than using the state’s own courts. H.B. 2’s anti-discrimination language ends up with a distinctly hollow ring.

The well-aimed opposition to H.B. 2 of many companies operating in North Carolina – from Wells Fargo to American Airlines to Apple – has been widely reported. Anyone familiar with today’s corporate environment, especially in tech-heavy fields where innovation is at a premium, understands the emphasis on hiring and retaining people on the basis of their talents — not factors as irrelevant as their sexual orientation or gender identity.

The same can be said of our universities and other centers of research and creativity. H.B. 2 might as well be not a welcome banner, but a get-lost banner to folks who want to live in communities where diversity is backed by more than lip service. If the legislature had deliberately set out to sabotage North Carolina’s reputation as a place compatible with the needs of today’s knowledge-oriented businesses and campuses, it hardly could have been more effective.

Perhaps in an attempt to offset that anti-business tack, the law also veers into standards of employment that reinforce the state’s traditional pro-business, anti-labor posture. If some companies feel wounded, others must feel relieved. For example, no longer could a municipality enact a minimum wage higher than the state’s or require its contractors to meet a so-called living wage standard.

The broader picture

The law’s supporters want us to stay focused on public restrooms and what they’d have us believe are the icky goings-on they’ve prevented by cracking down on transgenders’ use. Even at that level, they’d have us ignore the real hardships involved in barring people from using restrooms that match their gender identity rather than the sex listed on their birth certificate.

Beyond that, they don’t want us to heed the forms of discrimination that gays and lesbians are vulnerable to, their failure to strengthen protections when they had a chance or their trashing of local remedies. There’s a case to be made for consistency in statewide regulation – but not if the result is to deprive people of protections they need and to which they’d otherwise be entitled.

Most broadly, H.B. 2’s champions seem to wallow in reckless disregard of the symbolism of their half-baked, poorly vetted and mean-spirited law.

How does North Carolina benefit when it stands before the country as a place where the fight against discrimination, judging by the actions of its legislature and its governor, appears to warrant not much more than a wink? How does it benefit when it’s seen toying with the well-being of vulnerable minorities in a spasm of cynical politics?

It doesn’t benefit – not by a long shot. The Council of Churches, with its traditions of tolerance and inclusiveness, is glad to join the calls arising from across North Carolina’s business and cultural landscape: Even while federal judges ponder H.B. 2’s dubious constitutionality, put it back on the legislative agenda and, as soon as possible, undo the damage.

Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.

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Steve Ford
Steve Ford

Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches, which was first to publish it at www.ncchurches.org.