In 2014, community advocates in Charlotte, North Carolina, began organizing to press the city to amend its antidiscrimination ordinance to add several new protected classes, including sexual orientation, gender identity, and gender expression. After a contentious hearing where opponents argued that the change-which would allow transgender people to use public restrooms according to their gender identity-would subject women and children to "sexual predators," the city council voted down the amendment. Undaunted, advocates worked over the next several months to elect new council members and a mayor who supported LGBTQ rights. The amendments to the civil rights ordinance were then brought back before the council and passed in February 2015. Less than a month later, the state Speaker of the House Tim Moore and the Lieutenant Governor Dan Forest, both Republicans, called a special session of the legislature to address "the bathroom issues" of Charlotte's new ordinance. Two days later, the General Assembly convened and, in one day, passed House Bill 2 ("H.B. 2"). Governor Pat McCrory, the former mayor of Charlotte, who had earlier threatened city leaders with the specter of "immediate state legislative intervention," signed the bill that same day. H.B. 2, mischaracterized as "the bathroom bill," was a sweeping anticivil rights measure that extended far beyond the issue of access to restrooms. By narrowly defining sex as "[b]iological sex-the physical condition of being male or female which is stated on a person's birth certificate," the law not only denied transgender residents access to facilities based on their gender identity, but also undermined the existence of any antidiscrimination laws that included sexual orientation or gender identity and prohibited the adoption of any new local laws that would do so. And although unrelated to the Charlotte ordinance, H.B. 2 also expressly preempted any local antidiscrimination or workers' rights ordinances related to wages, benefits, leave, or protections for minors in the workforce. Additionally, the law eliminated the longstanding "public policy exception" to the state's employment-at-will jurisprudence, which authorized a state cause of action for employees who alleged they had been discharged because of illegal discrimination. H.B. 2 immediately became the highest-profile issue in the state. The American Civil Liberties Union ("ACLU") quickly filed a lawsuit in federal court, and Roy Cooper, the Democrat Attorney General, announced that his office would not defend the State in the suit. The law also gained national notoriety, leading to boycotts and the cancellation of numerous events in the state, including a Bruce Springsteen concert, the NBA All-Star Game, and a range of collegiate sporting events. PayPal withdrew plans for a $36 million dollar, 400-job facility planned for Charlotte because of the law. Governor McCrory's support for H.B. 2 played a critical role in his narrow defeat by Roy Cooper in 2016. The bill was formally repealed in March 2017, although the replacement statute, H.B. 142, continues to preempt local governments from passing new local legislation to protect LBGTQ civil rights. The legal and political struggle over H.B. 2 provides a primer on the issues of civil rights, local control, and state preemption and the particular challenges for progressive local governments in states controlled by conservative legislatures. While many tried to narrowly characterize North Carolina's experience with H.B. 2 as a debate between local control and uniformity of state law regarding access to bathrooms (the statute was regularly referred to as "the bathroom bill"), in reality, the issues and context regarding the passage, reaction to, and ultimate repeal of H.B. 2 are much deeper. At its core, H.B. 2 forced the state and nation to consider how our political processes address (or fail to address) the expansion of civil rights for historically marginalized groups; overtly discriminatory, anti-LGBTQ policy making, rhetoric, and prejudice; and the manipulation of the democratic process. Part II of this Article examines the passage of the Charlotte City Council's antidiscrimination ordinance. Part III discusses the legislature's response and passage of H.B. 2. Part IV describes the economic and political backlash following the law's passage. Part V details the legislature's repeal of H.B. 2. Part VI analyzes the broader political implications of the struggle over H.B. 2.
Mark Dorosin, North Carolina's H.B.2: A Case Study in LGBTQ Rights, Preemption, and the (Un)Democratic Process, 122 W. VA. L. REV. 783 (2020).