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North Carolina’s Rewrite of HB2 Is Nothing More Than a Wolf in Sheep’s Clothing

Anti-HB2 Rally
Anti-HB2 Rally
Chris Brook,
Legal Director,
ACLU of North Carolina
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July 21, 2017

When North Carolina lawmakers in March passed a fake “repeal” of House Bill 2, the state’s sweeping anti-LGBT law, we promised we would continue our fight for the rights and dignity of all LGBT people in our state.

Today we delivered on that promise.

Along with our partners at Lambda Legal, the ACLU and ACLU of North Carolina today announced a new court challenge to House Bill 142, a law that — like its predecessor, the infamous HB2 — was designed to treat LGBT people as second-class citizens, particularly singling out transgender people for discrimination.

In March 2016, we filed a federal lawsuit that challenged HB2 on behalf of LGBT North Carolinians. Later that year, a federal court ruled in our case that HB2 likely violated federal nondiscrimination law. HB2 was so discriminatory that it sparked national outrage and threats from major businesses and sports organizations to boycott North Carolina.

Because HB2 was so unpopular, discriminatory, and toxic to our state, legislators were forced to rewrite the law. But the rewrite, HB 142, was nothing more than an effort to sidestep criticism, avoid political retaliation, and get back in the good graces of big business and sports organizations so the money would flow again.

Because make no mistake about it: HB 142 still discriminates against LGBT people, in defiance of the clear demands of North Carolinians, businesses, and the nation at large. HB142 is a wolf in sheep’s clothing crafted to keep discrimination intact while sporting a different look.

HB2 blocked cities and counties from being able to pass policies that protected LGBT people from being discriminated against at their job or when they enter businesses open to the public, like hotels or restaurants. Under HB 142, they can’t pass those protections until December 2020 — and local protections for transgender people have been effectively banned.

Although numerous bills were proposed that would have cleanly repealed HB2 and returned North Carolina to the pre-HB2 landscape, none passed either chamber. Instead, legislators passed a bill that perpetuated anti-LGBT discrimination.

Many of the lawmakers who voted for HB 142 have said its passage ensured that trans people can be criminally prosecuted for using restrooms in public buildings that match their gender identity.

For example, on the day that he voted for HB 142, Rep. Brenden Jones said that it was not a repeal of HB2. “What this essentially means,” he said, “is that the restroom provision of HB2 remains.” For many legislators, this discrimination was not a bug, but a feature.

Because of the lack of clarity in HB 142 and statements like these from elected officials, transgender individuals have been deterred from using restrooms and other single-sex multiple-user facilities that match their gender identity.

The truth is the new language of HB 142 (pictured below) has created uncertainty about whether transgender people are protected or are subject to criminal or other penalties if they use restrooms and other facilities in public spaces.

HB 142 language

One of the North Carolinians we are representing in our lawsuit is Maddy Goss. She is a transgender woman who lives in Raleigh and often uses public restrooms when traveling on state highways to visit her family in western North Carolina or visiting the General Assembly to advocate for social justice causes. Under HB 142, Maddy worries about her safety in such situations because HB 142 has created uncertainty about her right to access women’s restrooms in public buildings.

Will she be arrested? Or fined? Or both? The answer is we don’t know. But legislators like Rep. Jones believe Maddy should face legal consequences if she uses the restroom that matches her gender identity.

In this way, North Carolina’s law encourages arbitrary and discriminatory enforcement against transgender North Carolinians like Maddy, making them even more vulnerable to harassment, discrimination, and violence in so many areas of life. The ability for local governments to pass affirmative and comprehensive protections for LGBT North Carolinians is needed now more than ever.

It is time to make it clear to anti-LGBT legislators: You haven’t pulled the wool over our eyes, and we must finally end state-sanctioned discrimination in North Carolina.

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