4 Other Problems With North Carolina's Horrible New HB2 Law — It's About More Than Bathroom Access

You've probably heard about how HB2 will affect the transgender community in North Carolina, but that's just the beginning.
Publish date:
March 29, 2016
Discrimination, north carolina, transphobia, Equal Pay, Gender Discrimination

Last week, North Carolina hastily passed a super-gross law transparently targeting trans women by requiring that public restrooms be segregated by "biological sex," which the legislature defines as: "The physical condition of being male or female, which is stated on a person's birth certificate." If your birth certificate says "M," you're supposed to go into the men's room, regardless of your gender. Likewise, if it says "F," you belong in the women's room. Incidentally, the state spent an estimated $42,000 doing it, which sounds like an excellent application of taxpayer dollars in one of America's poorest states, with a poverty rate of 17.2 percent.

HB2 is masquerading as a "commerce bill," with Republicans claiming that it's necessary to normalize business practices across the state for efficiency and practicality. This allows them to dodge the moral issue, but it's a pretty small fig leaf.

Many people are, understandably, extremely angry about this, and in fact, Lambda Legal and the ACLU of North Carolina have filed a lawsuit in opposition. Notably, the suit's plaintiffs are actually two trans men contesting their right to use public accommodations, which reflects some complicated social and political issues, not least of which, frankly, is that many people find trans men less threatening. It may be easier to win in court with two trans men than it would be with two trans women, because transphobia, patriarchal norms, and transmisogyny are very real and dangerous things.

But while people talk about the horrific implications for trans people who just want to use the bathroom (70 percent of whom have been harassed while trying to pee, zero percent of whom have ever attacked people in bathrooms), there's a lot more going on with this bill. It's easy to get lost in media coverage and a superficial reading of the first page of legislation, so here are some other things going on with HB2 that you should know about.

1) The sneaky minimum wage provision

The provisions of this Article supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to compensation of employees, such as the wage levels of employees, hours of labor, payment of earned wages, benefits, leave, or well-being of minors in the workforce.

Should any county or municipality attempt to pass reforms to employment practices, state law would block said reforms. Any regions with existing minimum wage ordinances and requires for benefits just lost them.

Relatedly, county agencies cannot set: "regulations or controls on [a] contractor's employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public." This has serious implications for counties where agencies are attempting to promote diverse hiring practices, full benefits, and better wages.

2) Striking down employment nondiscrimination

North Carolina recognizes "race, religion, color, national origin, age, biological sex or [disability]" as protected classes. It does not recognize LGBQT people under this framework, but until HB2, individual regions could pass employment protections to independently cover these groups.

Not anymore. Now, state law supercedes any regional law, just as with minimum wage and benefits, which leaves LGBQT people at serious risk of employment discrimination, which is already a huge nationwide issue. Fewer than half of U.S. states have anti-discrimination laws covering LGBQT people, since there is no federal law to protect them.

At least 21 percent of LGBQ people report employment discrimination at some point during their working lives. Over 70 percent of trans people have experienced it.

3) Cutting off school funding

While this isn't embedded in the bill itself, it will be part of the fallout. North Carolina schools will lose billions in Title IX funding by discriminating against transgender students, which they will be forced to do under the new law.

These funds, designed to promote equal opportunity for students from marginalized and disadvantaged backgrounds, will be sorely missed, particularly in low-income and rural districts that already have budgetary problems. North Carolina Republicans have effectively mortgaged the future of their youth.

4) A backdoor to a religious freedom law?

Another segment of the bill that's not getting much coverage is who gets to handle discrimination claims moving forward, with this responsibility allocated to the state's Human Relations Commission under the new law. Analyst Tom Bullock explains the potential implications: "Since religion is a protected class, and the definition of religion is broad enough, this could be a kind of backdoor religious freedom restoration act — allowing businesses the right to refuse to serve customers based on the owner’s religious beliefs."

Religious freedom laws are a growing issue in the United States, codifying discrimination by way of crying foul about First Amendment violations. Creating openings like these is very dangerous, as it could establish legal precedents to bolster discrimination. That's very bad news in a cultural landscape where the power of the religious right is growing.

How do North Carolina residents feel about all of this? Glad you asked.

On March 22, Public Policy Polling found that 51 percent of voters supported local nondiscrimination ordinances — specifically, the one in Charlotte that triggered this rapid legislative action. This held true across all political parties. Furthermore, 76 percent of respondents wanted to raise the minimum wage to at least $10 hourly. The actions of the state's legislature, it would appear, go against the wishes of its constituency.

Here's the really chilling thing. This legislation has been designed to be severable, as articulated in the conclusion:

If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable. If any provision of this act is temporarily or permanently restrained or enjoined by judicial order, this act shall be enforced as though such restrained or enjoined provisions had not been adopted, provided that whenever such temporary or permanent restraining order or injunction is stayed, dissolved, or otherwise ceases to have effect, such provisions shall have full force and effect.

This means that it will be necessary to file suits to dispute each and every single section — it's not possible to strike down HB2 in entirety. Given that litigation resources are limited for many protected classes, this is a serious issue, especially since the law goes into effect on April 1st, short of any injunctions to stop it.

So now would be a mighty good time to donate to the ACLU of North Carolina and Lambda Legal, both of whom are taking the lead on this issue. As always, I recommend unrestricted donations: If your funds aren't used to handle HB2-related cases, they will still go to important LGBQT-related causes and other social justice issues.

Photo: NCDOTcommunications/Creative Commons