How Much Damage Has North Carolina’s Bathroom Bill Done in 1 Year?

How Much Damage Has North Carolina’s Bathroom Bill Done in 1 Year?

How Much Damage Has North Carolina’s Bathroom Bill Done in 1 Year?

The law has upended North Carolina politics, but other states are still looking to copy the law. 


One year ago, the North Carolina General Assembly convened a special session to solve a problem that didn’t exist.

Outrageously claiming they wanted to protect women and children from sexual predators, Lieutenant Governor Dan Forest and Speaker Tim Moore—two prominent Republicans who have consistently supported other anti-LGBT legislation over the years—and the legislature’s Republican super-majorities came back to Raleigh in order to block a Charlotte ordinance that expanded nondiscrimination protections to LGBTQ people from going into effect.

A 15-year-old transgender boy named Skye Thomson spoke before a committee of state senators, pleading with them not to pass the bill. It would require transpeople to use the bathroom of the gender listed on their birth certificates in public facilities—including in government buildings and schools, which would force Skye to use the girls’ restroom.

“I’ve dealt with bullying my whole life, and now I worry that my own state lawmakers are bullying me as well,” he said. “I feel bullied by you guys.”

In the end, Republicans (and eleven House Democrats who voted for the bill) didn’t listen: The hastily written bill was introduced, passed, and signed by Governor Pat McCrory all in one day. At the time he signed it, a public-records request later found, McCrory didn’t even understand the bill.

The 365 days that followed have seen incredible backlash against the state, as HB 2 has resulted in costly economic boycotts and partially contributed to McCrory’s loss in November. But despite all of that, the bill remains on the books, and other states are getting closer to copying North Carolina, most notably Texas. Lawmakers and activists are pessimistic that the bill will be undone in North Carolina without the intervention of the courts.

Joaquin Carcaño, a 28-year-old transgender man who works at the University of North Carolina helping HIV-positive transgender Latina women, was at work when he heard the news that the bill was probably going to pass. “It seemed so extreme, it didn’t seem possible,” he remembers. “And then my coworker came up to me and said, ‘I’m sorry about what the state has done to you and your community.’”

* * *

When Charlotte passed comprehensive LGBTQ protections on February 22 last year, including places of public accommodations, it became the first municipality in North Carolina to provide such protections. It was necessary: According to multiple studies and surveys, transgender people often report being harassed or assaulted while using the bathroom associated with their gender identity. Prior to Charlotte, hundreds of other municipalities around the country and 17 states plus DC had done the same thing, usually up against the same sort of opposition which claims that such laws make it easier for men to sexually assault women and girls in bathrooms. (This myth has been debunked many times over.)

Aside from codifying discrimination against transgender people into law, HB 2 also removed the ability of all workers to sue for discrimination in state court (which was only partially restored later in the regular legislative session) and the ability of cities to pursue policies like a higher minimum wage, presumably to placate the state’s business community. The target of the law, however, was undoubtedly transpeople.

After HB 2 passed, its effects reverberated beyond North Carolina. Trans Lifeline, a transgender-crisis helpline, reported that the number of calls it received doubled after HB 2 was signed. In the weeks and months after the bill passed, reports came out of cisgender men actually chasing women into restrooms to check their gender.

This is all happening in an increasingly dangerous environment. The past year has also brought heightened violence against transpeople. According to GLAAD, 27 transpeople were murdered in 2016, an all-time high since they began keeping those records. Nearly all of them were transgender women of color. Just this week, a 38-year-old transgender woman named Alphonza Watson was shot and killed in Baltimore.

“It’s been difficult to watch, it’s been difficult for a lot of transpeople to live through this debate,” Human Rights Campaign National Press Secretary Sarah McBride said of HB 2.

“My life, it was more private,” Carcaño said. “it’s brought our lives and identities into a public conversation. It’s put us into public conversation.”

In North Carolina, LGBTQ advocates have tried to hit elected officials in the only place where it can hurt: the wallet. In the last year, the state has been barraged with denunciations, boycotts, and cancellations. The NBA All-Star Game pulled out of Charlotte, which the city’s tourism board estimated to be a $100 million loss, and Bruce Springsteen and other artists canceled performances in the state. The NCAA and ACC pulled all tournament and championship games out of North Carolina, no small gesture in a state that lives and breathes college basketball. Some businesses came out against the law as well, most notably when DeutscheBank and PayPal pulled planned expansions from the state and Google Ventures banned investment in the state.

In all, The Charlotte Observer recently estimated, the state has lost between $450 and $630 million because of the law.

Once November came, the political consequences were severe. On a great night for Republicans nationwide, McCrory became the only governor in the country to lose his bid for reelection, eventually falling to Democratic Attorney General Roy Cooper. And state Senator Buck Newton, who helped the bill get through the Senate and implored a pro-HB 2 crowd to “keep our state straight,” lost his race for attorney general to former Senate colleague Josh Stein, who ran hard against the law.

Prior to the election and in the months since, a repeal has been rumored, but has never materialized. The closest attempt came in December, when Cooper attempted to broker a deal where Charlotte repealed its ordinance and the legislature repealed the law. Charlotte did its part, after a couple of tries. When the legislature came back into session, however, Senate President Phil Berger attempted to attach a “moratorium” on nondiscrimination ordinances, and the session was adjourned with no repeal.

“There are ongoing discussions between the Governor, legislative leaders and others about HB 2,” Republican Chuck McGrady, who sponsored one of these “compromise” bills in February, said in an email to the Nation. “But I’m sure there will be no movement on any bill until legislative leaders—both Republicans and Democrats—know they have the votes to move forward.”

This week, House Democratic leader Darren Jackson posted images on Twitter of what he said was proposed House GOP legislation to repeal parts of HB 2. However, the first part of the bill—which prevents transpeople from using the bathrooms associated with their gender identities in government buildings, including schools—would stay, with an amendment in the spirit of Indiana’s original Religious Freedom Restoration Act attached to it as well.

Equality NC, one of the state’s most visible LGBTQ-rights groups, immediately denounced the proposal; it’s unclear, however, if this is the final proposal, if Republicans could get it through the legislature, or if Governor Roy Cooper would veto it or not.

It appears increasingly likely that HB 2 will be resolved through the courts. The ACLU filed has a legal case against North Carolina days after the lawsuit, with Carcaño as the lead plaintiff. In May, it will attempt to gain a full preliminary injunction against the law after getting a partial one protecting the plaintiffs in the case last year. “We keep encouraging lawmakers to do the right thing, to repeal the law entirely, but their actions to date have not been encouraging,” ACLU of North Carolina Communications Director Mike Meno says. “If lawmakers keep refusing to do the right thing and don’t repeal HB 2 fully, we’ll see them in court, once again.” (A related case in Virginia was supposed to be heard by the Supreme Court this term, but earlier this month, it was sent back to the US Court of Appeals for the Fourth Circuit.)

“I think when I first started this repeal effort, I told you I was optimistic that we could get repeal,” Jackson, who sponsored the first HB 2 repeal bill last year and now leads the House Democratic caucus, told The Nation earlier this week. Recently, Jackson unsuccessfully tried to get a “clean” repeal passed as an amendment to a banking bill.

He isn’t as hopeful anymore. “Over the last year, I have grown much less optimistic and at this point, I am not optimistic at all,” he said. “Many Republicans have taken the Trump elections as in fact an endorsement in HB2.”

* * *

That feeling hasn’t been confined to North Carolina. In February, the Trump administration discontinued Obama-era guidelines for schools to accommodate transgender students, guidelines issued last year as a direct response to HB 2. And in several states, some conservatives have continued to push their states to follow in North Carolina’s footsteps despite the potential consequences.

Last week, the Texas Senate passed SB 6, a bill that goes even one step further than North Carolina by establishing civil penalties—against schools, state agencies, or “political subdivisions” that don’t comply with the law, punishable by up to $1,500 for the first offense and $10,500 for the second—when transpeople don’t use the bathroom of the gender listed on their birth certificates. The bill, a priority of Texas Lt. Gov. Dan Patrick, has been strongly supported by Patrick’s counterpart in North Carolina: recently, Forest even went down there and stumped for it himself.

But Patrick’s bill is getting resistance from other Republicans: House Speaker Joe Straus and the Texas Association of Business came out against the bill for economic reasons, throwing the fate of the bill into question. “Many people where I come from get concerned about anything that can slow down our overall job-creating machine,” Straus told the Texas Association of Business in January. “They are also watching what happened in North Carolina, and they are not enthusiastic about getting that type of attention.”

In the wake of HB 2, a similar bill in Tennessee failed, but has now returned. In South Dakota, where Republican Governor Dennis Daugaard vetoed an anti-trans bill three weeks before HB 2, the bill has also returned, with a warning from Daugaard that he’ll repeal it again. And in Arkansas, a similar bill has been introduced and is in committee.

But there might be a silver lining. Although there has been a “surge” in anti-trans bills, according to Human Rights Campaign senior legislative counsel Kathryn Oakley—the National Center for Transgender Equality estimates that there are 41 such bills that have been introduced—the bills themselves (with the exception of Texas) haven’t gone anywhere yet. (The Senate version of the new Tennessee bill failed on Wednesday.) “After North Carolina and after HB 2, we are seeing that fewer states are moving forward with these bills,” Oakley said on the conference call Tuesday. “They’re less likely to get committee hearings, and they tend to be introduced by more extreme legislators.”

While some states ponder whether or not to follow North Carolina down a path towards humiliating and endangering its trans community, however, McBride thinks there is reason for optimism in others. Last July, Massachusetts updated its gender-identity protections to include public accommodations. And earlier this year, a bipartisan group of lawmakers in New Hampshire introduced a transgender rights bill, although that effort ultimately failed.

HB 2 has also ignited a surge of activist opposition to these bills. People associated with North Carolina’s Moral Movement have demonstrated against the bill, and in the days following its passage, Black Lives Matter demonstrated in front of the governor’s mansion. Carcaño, who is originally from southern Texas, says his friends and family have been traveling the five hours to Austin to protest and provide testimony against SB 6. “You would hope [it would fail],” he says. “Not just for financial reasons, but in terms of protections for our community. You would hope, but that’s too far-fetched unfortunately.”

“I think on the flip side [of HB 2],” McBride said, “there were experiences from that debate that demonstrated to transgender people that we have strong, significant support from wide swaths of the American public, that we have allies in all corners of this country, and there are millions of Americans who see them, who stand with them, and who are willing to fight with and for them.”

Meanwhile, Republican governors worried about self-preservation after McCrory’s loss have grown a spine that may have otherwise not been there before the election. Arkansas’s Asa Hutchinson opposes his state’s bill, Texas’s Abbott has stayed silent on his, and, even though Kentucky’s Matt Bevin had no problem signing another anti-LGBT bill this week, he recently called any potential effort for a bill targeting transpeople using the bathroom in Kentucky “silly.”

“We’re seeing more and more Republicans say, ‘This is not the issue we should be tackling, this is not the issue we should be spending our time on,’” McBride said. “I think that’s a direct result of the way the debate has gone in North Carolina.”

But as for the chances that North Carolina will learn from its own mistake? “It’s anyone’s guess,” Carcaño said. “When all of this started, who would have bet that we’d be here a year from now, in the same spot? It’s an awful surprise.”

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