After months of speculation about what the legislature might do regarding the controversial HB2, the so-called “Bathroom Bill,” the General Assembly passed House Bill 142 [Reset of S.L. 2016-3.] in one day. Governor Cooper immediately signed the bill. In the one-page bill, the legislature first repealed HB2, then preempted all state agencies, including state universities and community colleges, and all local governments, from regulating access to multiple occupancy bathrooms, showers or changing rooms, and finally prohibited local governments from enacting nondiscrimination ordinances until December 1, 2020.
The procedure used to bring the bill forward allowed it to move quickly. The House had previously passed HB142 when it was entitled “Increase Oversight of OLBs” which dealt with increasing oversight of occupational licensing boards. With the House bill over in the Senate Rules Committee, the Senate stripped out the provisions that passed the House, inserted the new provisions (outlined above) and changed the title of the bill. The Senate Rules Committee considered the bill early Thursday morning and gave it a favorable recommendation. The Senate then passed the bill the same morning by a vote of 32 to 16. The bill was then sent back to the House, was added to the House calendar for that day, and the motion to concur in the changes made by the Senate passed by a vote of 70 to 48 on Thursday afternoon.
The advantages to using this procedure for passing HB142 were that the bill could pass both chambers in one day and, when the bill came over from the Senate, it was not able to be amended. If the House had not concurred with the Senate’s changes, the bill would have ended up in a conference committee to resolve the differences between the two chambers, but House and Senate leaders weren’t going to move the bill unless they had the votes. Republicans and Democrats in both chambers caucused separately, and leadership knew the vote would be close, but they also knew that the bill would pass.
In both the House and the Senate, a majority of Republicans and Democrats supported the bill. As a general matter, the more socially conservative legislators, typically representing rural districts, opposed the bill along with most socially liberal legislators, typically representing urban districts. After having rejected several compromises, Governor Cooper supported HB142, and that was painful for many Democratic legislators, since this legislation was viewed as less favorable to the LBGT community than other compromises that had been previously offered.
So what happened? Why did Governor Cooper support this compromise and why did legislative leaders, Speaker Tim Moore (R-Cleveland) and Senate President Pro Tem Phil Berger (R-Rockingham) agree to this bill?
For weeks, business leaders throughout the state had been urging the parties to find a solution. They viewed HB2 as adversely affecting the state. Aside from the loss of some number of athletic events, there were potential new industries that were reticent about coming to North Carolina because of the adverse publicity surrounding HB2. For example, Andrew Tate heads up Henderson County’s economic development efforts, and he told me that he and others who worked on recruiting businesses to North Carolina were having to spend some amount of time talking about HB2 with potential business prospects and that other states were using the law as part of their recruitment efforts.
Business leaders intervened directly with Governor Cooper, Speaker Moore and President Pro Tem Berger in the days and weeks prior to adoption of HB142. They met with them together and separately. Ultimately, they put forward a proposal — one that is largely reflected in HB142.
Getting the votes to pass HB142 was hard. Some legislators were willing to consider voting for a bill that repealed HB2 just as long as that wasn’t in the bill’s title. Thus, the bill refers to the session law rather than the bill number, although they are the same thing. The key for most Republicans was the preemption provision. One couldn’t get Republican votes for any bill that did not preserve the prohibition on local governments doing what Charlotte did — passing an ordinance that allowed for the possibility that men would be using women’s bathrooms, showers and changing rooms.
The debate a year ago was mostly about fear of crime, but the focus now was more on privacy. No matter what one’s political affiliation is, everyone could understand why people weren’t comfortable mixing the sexes in multi-occupancy bathrooms, showers and changing rooms.
So why did I vote for HB142?
First, I just wanted to get HB2 bill behind us. Whether we liked it or not, it was damaging the state’s reputation and even having negative financial effects, although apparently not in Henderson County.
Second, if the issue was bathrooms, privacy in bathrooms is completely protected by HB142. In fact, I would argue that this is what the legislature should have done a year ago — simply preempted Charlotte and other local governments from regulation of access to multiple occupancy restrooms.
Third, passage of HB142 probably moots the judicial challenge to HB2 that was set to be heard in early May before the U.S. Court of Appeals for the Fourth Circuit. I really didn’t want some set of federal judges deciding these issues.
Fourth, the bill gives us a cooling off period until December 1, 2020. As Speaker Moore noted, imposing the moratorium on local ordinances until the end of 2020 gives this legislature and the one following it the time to come up with agreeable restrictions on local ordinances. It also follows the next gubernatorial election, so people will have the opportunity to elect legislators and a governor before any new nondiscrimination ordinances will be allowed.
While quite aware of the deadlines established by the NCAA for announcing future sites for its athletic championships, many legislators didn’t care a lot about what the NCAA, ACC, or NBA thought. In fact, one bill, HB328 [Athletic Associations Accountability Act] was introduced to determine whether the NCAA and ACC may have violated their tax-exempt status by engaging in political and legislative activities. What irritated me the most was that other states and cities joined the economic boycott. I’ve got a list of them, and I think my vacation plans will not involve those states and cities in the near term.
In the days since the passage of HB142 what I’ve been most often asked is whether the bill weakens protections for vulnerable people, like women and children, in bathrooms, locker rooms, and changing rooms. No, it does not. The state’s criminal laws are applicable, specially criminal provisions like second degree trespassing, indecent exposure and/or peeping.
Another concern about the bill is the provision that prohibits the adoption of non-discrimination ordinances (NDOs) by local governments but sunsets that provision on December 1, 2020. Again, that provision should be seen as giving policymakers a cooling off period.
Some legislators want local governments to be able to adopt NDOs, and some legislators do not. Rather than allow that dispute to delay adoption of the bill, the compromise was to prohibit any new NDOs until a new legislature and maybe a new governor were in place.
While the deadlines for filing local and public bills in the Senate have passed, the House has different deadlines. The deadline for filing local bills passed last week, but the deadline for filing public bills that aren’t appropriations or finance bills is April 11. The filing deadline for public bills that do involve appropriations or finance is April 25.
The most important deadline for both chambers is the “crossover deadline.” Most bills, but not appropriations and finance bills, have to pass from one chamber to the other by April 27 to remain eligible to be considered. As a practical matter, that means there will be a frenzy of activity this month to move bills in advance of the crossover deadline.
While I am working on a number of public bills that I anticipate filing by April 11, my constituents should note that I didn’t file a local bill relating to the Asheville water system after receiving assurances from the City of Asheville as to its interpretation of the so-called Sullivan Acts, local laws that govern Asheville’s operation of the water system. However, with the HB2 repeal decided, I’ve now got the time to consider what, if any, legislation to introduce regarding a broader set of water and sewer issues relating to Henderson County and western North Carolina.