North Carolina has been drawing national attention for House Bill 2 (HB2) -or the “bathroom bill”- that was passed by the NC General Assembly and signed into law later that night by Gov. Pat McCrory. In addition to other less known aspects of the bill, such as enacting obstacles to increasing the minimum wage locally, the new state law prevents cities and local governments from passing anti-discrimination measures that protect gay and transgender individuals, and requires people to use the bathroom that corresponds to their sex listed on their birth certificate.
North Carolina’s new law sets a statewide definition of classes of people who are protected against discrimination, but sexual orientation and gender identity are not explicitly protected. Therefore, transgender people who have not taken surgical and legal steps to change the gender noted on their birth certificates have no legal right under current state law to use public restrooms of the gender with which they identify. And under HB2, cities and counties can no longer establish a different standard.
North Carolinians, in the past, have expressed sentiment against LGBTQ-related legislation. In 2012, a constitutional ban on same-sex marriage passed with more than 60% of the vote. In 2015, a poll from the Democrat-leading Public Policy Polling of Raleigh showed that 44% of state residents supported same-sex marriage, with 46% opposed. And last April, an Elon University poll found that 63% of the state’s registered voters disagree with the state’s magistrate law.
Today, however, 38% support HB2 and 50% oppose it, according to new opinion research conducted for WRAL-TV in Raleigh. The study found that support for the new law is greatest among strong Republicans (62%) while most of the opposition is found among strong Democrats (72%). Also, 56% of North Carolinians agree with the provision of the law that requires transgender individuals to use the bathroom of their birth, and not the bathroom of their choosing. This provision notwithstanding, a majority of North Carolinians (52%) agree that members of the LGBTQ community should be protected against discrimination, versus 36% who say LGBTQ individuals should not be protected.
Proponents of HB2 argue that Charlotte’s measure expanding North Carolina’s anti-discrimination law was governmental overreach by the city and that this is a matter of safety for women and children in public restrooms. According to the research conducted for WRAL-TV in Raleigh, 56% of North Carolinians say that allowing a transgender individual to use the public restroom of their choice poses a security risk for women and children. LGBTQ (lesbian, gay, bisexual, transgender, and queer) activists, however, argue that safety hasn’t been an issue in the 18 states where protections for gay and transgender people already exist.
According to a Reuters/Ipsos opinion poll, young adults and women are generally more open to people using public bathrooms matching their gender identity. Americans aged 18 to 29 favor allowing transgender people to use the bathroom of their gender identity by a 2-to-1 ratio. The ratio for Americans aged 60 or older, however, was 2-to-1 in reverse with people expressing that restroom use should be mandated by the gender on the individual’s birth certificate rather than the gender they identify with.
The backlash to the law has been widespread, from officials from other states to several North Carolina-based businesses to national corporations and organizations like ESPN, the NBA, the NCAA, as well as Hollywood filmmakers. Colleges and Universities across the state have also issued statements deploring the new state law and ensuring their commitment to nondiscrimination policies. While NC State has issued a statement assuring students that the law will not affect the university’s equal opportunity and nondiscrimination policy, NCSU’s statement did not explicitly come out against HB2. While the whole country seems to be talking about HB2, a new survey conducted by reporters from 7 newspapers and The Associated Press shows that the one group that has refused to discuss it are the lawmakers who passed it. When asked whether they’d prefer to amend the law or leave it as-is when session begins, only about a third of the state’s legislators gave an answer.
As pressure mounted on North Carolina’s governor and lawmakers to repeal House Bill 2, a federal lawsuit was filed challenging the constitutionality of HB2 and arguing that the state could be in violation of Title IX, which would put billions of dollars of federal education funding at risk. What makes matters more critical, however, is the recent ruling by a federal appeals court in Richmond, VA that declared a policy barring a transgender student from using the boys’ restrooms at his Virginia high school as discriminatory. The appeals court’s ruling establishes legal precedent in every state in the 4th Circuit, including North Carolina, which will likely undermine HB2.
It is, however, clear that HB2 could have far-reaching political implications. It will likely be an issue in this year’s gubernatorial election, where Gov. McCrory will face Attorney General Ray Cooper, a Democrat who referred to the law as “a national embarrassment.” And while several other states have proposed and even passed similar legislation, North Carolina’s law goes the furthest. Most of these laws, however, seem to be testing the limits of what the U.S. Constitution allows. While the Supreme Court has consistently been vague about what the promise of the 14th amendment means for the LGBTQ community, this latest controversy may clear some things up.