The 30 years that brought us HB 2

Bathroom panic was the spark, but the law that shot North Carolina to the front of the culture wars has a much deeper history.

I. Hell Breaks Loose

Last year, when the Rev. Mykal Slack was preparing to move south to Durham, nearer to his and his wife’s families, some of his closest friends questioned his judgment. Slack had left rural Georgia 20 years earlier, and it was up north that he had built a career and an identity. He earned a law degree, clerked for a judge, and spent his early thirties attending New York’s Union Theological Seminary.

“I was getting clear about my faith,” he says. “Part of that clarity was understanding that, for me anyway, I must honor God by honoring the truth of myself.”

Slack had long understood that he was male, even though his birth certificate said otherwise. “But I knew enough about the way the world works that I couldn’t share the truth with anybody,” he says. Within the welcoming confines of the seminary, he found the path to authenticity, and in 2006 he came out as a man.

“That’s when a lot of my life began,” he says.

Slack, now 42, worked for several Northern congregations. He got together with his wife, psychologist LeLaina Romero, while he was living in Pennsylvania and she in Massachusetts. In August 2015, the couple moved to North Carolina in the hope that living closer to relatives would also carry them into territory where their work could make a big impact. Durham, with no majority race, seemed simpatico for an African-American transgender man and a Puerto Rican-French Canadian-Jewish woman. Still, not everyone was convinced of the wisdom of moving south.

“I’m so scared for you,” friends told him.

“I appreciate that,” he’d respond, before noting that he’d seen plenty of bigotry above the Mason-Dixon line. In his new hometown, he’d say, “I’m going to be surrounded by queer and trans people of color. This is going to be like heaven.”

The Triangle lived up to its billing. The people Slack and Romero met were “resilient, joy-filled, willing and ready to support one another,” he says. He found work as director of congregational life for the Unitarian Universalist Fellowship of Raleigh. She became pregnant. They prepared for parenthood while also taking care of Romero’s ailing father.

“Little did we know,” he says, “that once we moved to North Carolina, all hell would break loose.”

The hell, of course, was House Bill 2, the hastily passed legislation that flung North Carolina into the center of the nation’s culture wars — triggering lawsuits, demonstrations, copycat bills, boycotts, federal directives, corporate pullouts, and an interminable stream of rhetoric. The law’s most debated section assigns bathroom access in public buildings according to the “biological sex” listed on the user’s birth certificate. Other provisions strip city and county officials of the right to protect their LGBTQ constituents and others, and prevent local governments from imposing wage and other employment rules on their contractors. (Another section, prohibiting job-discrimination victims from suing in state courts, was repealed two weeks ago, but the time limit for filing a discrimination lawsuit was shortened by two-thirds.)[pullquote]‘Telling a lie over and over and over again does not make it true. I am a transgender male, and I am not a threat to you.’[/pullquote]

HB2 became law March 23, the same day it landed on legislators’ desks — just in time to overturn a Charlotte nondiscrimination ordinance scheduled to take effect the following week. That morning, Slack attended a House committee hearing where supporters claimed that both safety and religious freedom were in peril unless the state dictated his bathroom access. He had not planned to speak, but the absence of testimony from trans people of color moved him to address a Senate committee that afternoon. At the microphone he was a commanding figure, his clerical collar resting on broad shoulders, his chin sprouting a soul patch.

“As a preacher, it’s my job to speak as plainly as I can, in all the places I’m called to, with as much love in my heart as I can muster,” he said. “So let me be plain and clear today. Telling a lie over and over and over again does not make it true. I am a transgender male, and I am not a threat to you. … I get up in the morning. I go to work every day. I go to church every Sunday. I kiss my wife’s belly every night before we go to sleep.”

By forcing him into women’s restrooms, lawmakers were putting his safety at risk — perhaps, Slack generously suggested, because their knowledge of the subject was lacking. “The issue here is to have deeper conversations,” he said. “You should not vote on legislation or amendments that you do not fully understand.”

Slack left the legislature still wearing a black suit and clerical collar. Usually fearless, he looked over his shoulder repeatedly as he walked away. Only after he’d reached his car and locked the doors did he allow himself a relieved sigh.

“Thank God,” he thought, “nothing happened to me.”

House Bill 2 seemed like a bolt from nowhere. One day transgender North Carolinians were living low-profile lives; the next day their most private moments were being bandied about without a modicum of understanding.

But the new law was not a bolt from nowhere. It can be understood by examining the decades preceding its passage. If history is a river, then at least three distinct tributaries converged in Raleigh on March 23.

The first is the growing practice by state lawmakers — one that took root during the Reagan era — of slapping back local governments that get too proactive. The second is the successful national Republican effort to seize control of North Carolina’s government. And the third is the recent visibility of transgender Americans, their push for legal equality, and the utterly predictable backlash.

It’s hardly a stretch to say that those three currents made House Bill 2 not just possible, but virtually preordained.

II: Pre-emption

To understand the roots of HB 2, let’s take a 30-year step back.

When I started covering the North Carolina legislature in the mid-eighties, business interests were already pushing to strip cities and counties of their powers. In 1987, Rep. George Miller, a Durham Democrat, introduced a measure making it harder to remove nuisance billboards, as Raleigh’s city council was trying to do. He also sponsored a bill, favored by the NC Board of Realtors, prohibiting local officials from “down-zoning” properties to lower-intensity use — an important conservation tool — without compensating owners.

Neither bill passed. But a strategy was taking shape: as cities took more initiative to improve their quality of life, aggrieved businesses could plead their cases to the friendlier state legislature. This tactic of defanging local governments is called “pre-emption.” It’s hardly restricted to North Carolina. And its use has burgeoned over the years leading up to HB2.[pullquote]‘Every industry, every interest group, said, ‘We might not get what we want, but we can stop anything.’’[/pullquote]

The tobacco industry, fighting indoor-smoking regulations, helped pioneer pre-emption in the 1980s. A former lobbyist named Victor Crawford revealed the strategy publicly after his own diagnosis with a smoking-related cancer.

“We could never win at the local level,” he told the Journal of the American Medical Association in 1995. “All the health advocates, the ones that unfortunately I used to call ‘health Nazis,’ they’re all local activists who run the little political organizations. They may live next door to the mayor, or the city councilman may be his or her brother-in-law. … When they’ve got their friends and neighbors out there in the audience who want this bill, we get killed. So the Tobacco Institute and tobacco companies’ first priority has always been to pre-empt the field. … The health advocates can’t compete with me on a state level. They never could.”

Big Tobacco made big strides initially, then lost ground as public support grew for smoking restrictions. The more enduring push came from the gun lobby, which blanketed the country with bills to stop places like Durham and Chapel Hill from regulating firearms. Lars Dalseide, a spokesman for the National Rifle Association’s Institute for Legislative Action, calls pre-emption key to eliminating “patchwork” regulation. “While you’re a law-abiding citizen in your hometown,” he says, “you cross a county line and all of a sudden you become a criminal.”

Around the country, NRA lobbyists courted legislators — treating North Carolina’s, for example, to seafood parties and Christmas gifts starting in 1994 — and racked up victories. Most states, including North Carolina, now tie the hands of cities that want to address gun violence.

“The game is over, and the NRA won it,” says Mark Pertschuk, director of Grassroots Change, a California-based nonprofit that runs a project called Pre-emption Watch. Since then, pre-emption efforts have flourished. “Every industry, every interest group, said, ‘We might not get what we want, but we can stop anything,’” explains Pertschuk.

Those industries are often assisted by the American Legislative Exchange Council, a free-market advocacy group that brings together business leaders with state legislators at luxury hotels. ALEC also publishes model laws curtailing local authority, with wording that lawmakers can copy and paste.[pullquote]‘I quit going places that had large groups of people. I wasn’t afraid of the law so much as the vigilantism that the law perpetuated.’[/pullquote]

It’s no shock, then, that in recent years states have barred municipalities from regulating fracking, banning or taxing plastic bags, and creating sanctuaries for immigrants. This spring, Wisconsin outlawed county development moratoriums. Mississippi upended local regulations on companies like Uber. Arizona took away local leverage over drones and puppy mills. And Kansas passed a law pre-empting — in a single swoop — local policies governing rent control, housing inspections, and nutritional labeling.

As HB2 makes clear, one focus of this push has been labor: both ALEC and the dining and tourism industries have tried to prevent local governments from regulating wages or other working conditions.

“Over 90 percent of restaurants are small businesses running on extremely thin margins,” says National Restaurant Association spokeswoman Christin Fernandez. “The last thing they need is a patchwork of policy initiatives.”

This means not just handcuffing elected officials, but also overturning direct democracy. Two years ago, voters in Orange County, Fla. approved an ordinance mandating up to seven days of annual paid sick leave for workers at all but the smallest companies. Opposing the measure were Darden Restaurants (Olive Garden, Red Lobster) and Disney. Before the vote could take place, however, the Florida legislature outlawed local employment standards. That invalidated the ballot measure as soon as it passed.

“It was a huge blow,” says Stephanie Porta, director of the Orlando-based Organize Now, which championed the measure. “People had worked very hard to do this for the first time ever. It was historic. It should have been celebrated. Instead it was squashed.”

North Carolina has long used pre-emption, though not in an exceptional way. That changed with an off-year election that immoderately altered the political mood in Raleigh.

III: The Great Dismantling

During the lead-up to Election Day 2010, a national caucus called the Republican State Leadership Committee recognized that whichever party controlled statehouses after November would also redraw the post-census congressional district lines. Seizing on President Obama’s falling popularity, it launched the Redistricting Majority Project, or REDMAP, which poured $30 million into state legislative contests around the country. REDMAP says it invested $1.2 million in North Carolina, where Democrats at the time ran both the House and the Senate. The Koch brothers’ Americans for Prosperity also targeted North Carolina legislative seats. So did in-state conservative groups linked to Raleigh businessman Art Pope.

As Jane Mayer later chronicled in the New Yorker, the money funded a barrage of attack ads of dubious veracity. Not only did the ads blindside Democratic incumbents; they also succeeded in installing GOP majorities in both state chambers. When Pat McCrory was elected governor two years later, Republicans celebrated their first lock on North Carolina’s government since 1870.

This was more than a partisan shift. The 2010 election triggered a breakdown of North Carolina’s moderate consensus, which Democrats like former governor Jim Hunt and Republicans like former governor Jim Martin had shared for 50 years. That consensus favored roads, schools and racial civility, all of which undergirded a healthy business climate.

The new legislative majority set out to dismantle that consensus: curtailing voting access, cutting education spending and rejecting a federally funded Medicaid expansion. It slashed unemployment benefits and imposed new barriers to abortion. It repealed the Racial Justice Act, which guarded against bias in the sentencing of death-row inmates. It set into motion Amendment 1, which wrote one-man/one-woman marriage into the state constitution until the federal courts invalidated it. It redrew its own district lines to explicitly give Republicans a greater electoral advantage.

And it picked up the mantle of pre-emption with exceptional vigor. Never before had there been such a disconnect between the state’s government and its urban areas, nor such a strong impulse to rein in liberal and even centrist cities.

This time, pre-emption went beyond big-picture issues like gun control. Lawmakers got personal with individual cities and counties. They wrested from Asheville control of its own water system and, from Charlotte, control of its airport. (The Asheville case is currently in legal limbo.) They redrew electoral lines for the Wake County commissioners and school board (struck down by the US Court of Appeals this month) and Greensboro City Council (still in court). They forced Durham to extend utility services to the 751 South development near Jordan Lake, despite concerns about water quality and traffic.

“This is new,” Frayda Bluestein, a professor of public law and government at the UNC School of Government, says of the targeted pre-emption bills. “Those kinds of things were not common until this recent change in the legislative makeup.”

Top Republican officials would not comment for this story. Gov. McCrory, Senate leader Phil Berger, and retiring House Speaker Pro Tempore Paul Stam all declined or ignored interview requests. Andy Munn, deputy chief of staff for House Speaker Tim Moore, asked for a written list of questions, to which he and his boss never responded.

Notably, until HB2, lawmakers did not pre-empt local antidiscrimination efforts, as Tennessee did in 2011 and Arkansas did in 2015. And with same-sex marriage a settled issue — in the courts and increasingly in the mainstream heart — lesbians and gays are no longer widely perceived as a threat. If North Carolina’s culture warriors were going to use pre-emption as a weapon, they would need to find a different way in.

IV: Bathroom Politics

We all expected there would be an enthusiastic backlash against marriage equality,” says Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality Law. After Obergefell v. Hodges, the Supreme Court’s 2015 marriage ruling, overt homophobia was no longer “polling well.” But the emergence of a visible transgender-rights movement opened new lines of attack. “This is a more vulnerable community, and there wasn’t as much sympathy for the discrimination that trans people experience,” Franke says. “It’s still a new idea to so many people, and one that sounds at best exotic and at worst unnatural.”

Trans people have long been treated as junior partners in the LGBTQ pantheon: they are fewer in number, more recently considered “disordered,” and historically a lower priority for movement leaders. Yet trans folks have been in North Carolina all along, living quiet and productive lives without much protection, finding support in their communities and resilience in themselves.

Christy Summersett moved to North Carolina 10 years ago as part of a work relocation, but she was terminated after beginning her gender transition. “Of course, it wasn’t because I came out,” the 59-year-old says sardonically. “It was for ten thousand other reasons.” The firing spurred her to find a job where she’s respected, as the maintenance manager for a Rocky Mount windshield company. Overall, she says, life on the coastal plain has been good.

“John Doe on the street, that you meet at the grocery, doesn’t care,” she says. “You’re a living, breathing individual. If you’re contributing to society and the economy, fine.” Because she still has a deep voice, contractors sometimes call Summersett “sir” on the phone. “But when I meet them face-to-face,” she says, “they can’t eat their words fast enough.”

Not everyone fares so well. A 2011 survey of 6,450 transgender and gender-nonconforming Americans found that 41 percent had attempted suicide. (Studies have placed the general-population suicide-attempt rate between 1.9 percent and 4.6 percent.)

“The shame, the constant hiding, the fear of discovery just wore me down — to the point where I didn’t want to live anymore,” says Sharon Westfall, a 55-year-old programmer in Chapel Hill who recently transitioned. Living as a woman was essential to her well-being, she says, but the metamorphosis has been hard. “It took what was a very successful life — married for 31 years, twentysomething years in software development — and threw a grenade in it.”

The 2011 survey, published by the National Center for Transgender Equality and National Gay and Lesbian Task Force, showed that poverty and job discrimination were rampant among trans people. Almost one-fifth of respondents had experienced homelessness. As schoolchildren, 35 percent had been physically assaulted and almost one in eight suffered sexual violence.[pullquote]‘Bathrooms are a way we fight out civil-rights norms.’[/pullquote]

When it comes to safety, restrooms and changing rooms are particularly fraught. One trans woman in Durham told me about growing up in a small New England town in the 1970s where other kids perceived her as a gay male and bullied her. She defended herself in fights, but that didn’t stop the harassment. “By the time I was high school, it had escalated between me and the boys,” she recalls. “They decided one afternoon they were going to teach me a lesson in the locker room, and they beat me and raped me.”

The threat doesn’t run the other way — that is, there’s no independent research showing any harm when trans people use restrooms that match their gender identities. “We haven’t found any instances of criminals convicted of using transgender protections as cover in the United States,” the nonpartisan fact-checking website PolitiFact declared in April.

Still, conservatives have managed to flip the narrative about who’s at risk. “It’s not about transgender people,” says state Senator Andrew Brock, a Mocksville Republican. “It’s about people who prey upon women and children. They would use the transgender people as scapegoats to condone their bad behavior.”

If Charlotte’s nondiscrimination measure were allowed to stand, he says, “someone could use that ordinance as a ‘Get Out of Jail Free’ card.” (Brock, a former congressional candidate who touts his “Christian values,” used more combative words at an April rally outside the legislature, saying the $42,000 cost of the special session to enact HB2 “will not cover the medical expenses to the man who walks into the bathroom when my little girl is in there.”)

Franke, the law professor, says it shouldn’t surprise anyone that the latest battle has moved into the toilet. “Bathrooms are a way we fight out civil rights norms,” she says.

During the 1960s, segregationists claimed that African-American women would spread syphilis to white women via toilet seats. Ten years later, critics of the Equal Rights Amendment raised the specter of unisex restrooms. During the 1978 fight over California’s Briggs Initiative, which would have purged public schools of their gay faculty, state Sen. John Briggs speculated that “most” homosexual teachers in San Francisco were “seducing young boys in toilets.”

The fear of something untoward occurring in a bathroom — the semipublic space where we are most exposed — has had remarkable staying power. “Women’s restrooms are the one place where men feel like they can’t be in there to protect women or children,” says Andy Garcia, program manager for Equality Federation, a nonprofit that works with state organizations on LGBTQ issues.

Equality Federation has examined how Americans respond to different messages about transgender rights. “The support for nondiscrimination protections was very broad, but not very deep,” says Garcia. “We lost huge chunks of the conflicted audiences — they just went away — as soon as the opposition started saying, ‘Hey look, this allows a man, any man at any time, to say that he’s a woman and go into the woman’s restroom.’ We lost people with that, and we still can’t figure out how to get them back.”

So when Charlotte passed an antidiscrimination ordinance in February covering gender identity and sexual orientation — as Greensboro had done a year earlier, without incident — opponents had a surefire countermove at the ready. They would introduce a bill pre-empting the entire ordinance. But they’d keep their rhetorical focus on the toilets.

V: The Black Box

How HB 2 came together — the mash-up of pre-emptions involving restrooms, discrimination bans, and contractor employment rules, plus the now-repealed restriction on lawsuits in state courts — remains a mystery. “A black box,” says state Sen. Jeff Jackson, a Charlotte Democrat who opposes the law.

State Sen. Shirley Randleman, a Wilkesboro Republican who chaired a Senate working group responding to Charlotte’s ordinance, told her local newspaper that the legislation took shape over weeks of conference calls. But that’s all she revealed, and neither she nor Representative Dan Bishop, the Charlotte Republican who was the bill’s principal sponsor, responded to messages seeking interviews.

Two LGBTQ rights groups, Equality NC and the Human Rights Campaign, filed public records requests for correspondence between McCrory, Moore, and Berger and pro-HB2 activists; all three Republicans rebuffed them. As of press time, McCrory has also failed to respond to similar requests, made on March 28 and April 25, from the Indy. When I contacted Alliance Defending Freedom, an Arizona-based Christian legal organization fighting transgender restroom access in North Carolina and elsewhere, it promised to respond to a list of written questions. But it never did.

Records obtained by the Indy from Lt. Gov. Dan Forest do not reference the contractor and state-court sections of HB2. They do, however, contain a March 10 letter from Edwin L. Barnes Jr., vice president of development at Charlotte’s Reformed Theological Seminary, urging GOP officials to invalidate all of Charlotte’s LGBTQ protections in a special session.

“For those of you who are Christ-followers, fear God, not man,” Barnes wrote.

Forest and Bishop responded in agreement. “Courage is exactly what is needed,” wrote Forest.

What’s evident from the bill is that it was crafted with the intention of bringing together business and religious conservatives, both inside and outside the legislature. The contactor section, for example, overlaps a model bill by ALEC, the free-market organization, outlawing local living-wage mandates for contractors and other employers. It also resembles a last-minute measure that North Carolina lawmakers rejected in 2015, which would have banned local wage and employment standards for all private companies.

HB2 opponents say the business-friendly provisions were no random add-ons. “The bill is sweeping in order to try to engage as many stakeholders as possible within a conservative majority,” says state Representative Chris Sgro, a Greensboro Democrat who also heads Equality NC.

To some degree, it worked: the 35,000-member North Carolina Chamber of Commerce stayed silent about HB2 for almost two months after its passage, then released three suggested changes that didn’t touch the bathroom section. (Chamber officials insist they had no input before the bill was introduced.) Into that silence stepped scores of large corporations — GE, Xerox, Kellogg, Northrop Grumman, Coca-Cola, American Airlines, Levi Strauss — whose leaders forcefully condemned the bill. PayPal and Deutsche Bank canceled North Carolina expansion plans. Both WRAL and Charlotte city lobbyist Dana Fenton reported threats and fears of GOP revenge against outspoken companies. By June, Charlotte developers were worrying aloud about not filling office space because of the backlash.

“They didn’t anticipate this level of blowback,” says Jackson, the Charlotte senator. “They really believed this was a lay-up — a quick way to score some points. As it turns out, the world has changed faster than they thought.”

VI: A Target on Our Back

Until Gov. McCrory signed HB2, no other state had such a measure.

“Even in the states where there are extremist legislatures, in every case but North Carolina, after they really thought about it, somebody decided to be an adult,” says Mara Keisling, executive director of the National Center for Transgender Equality.

But North Carolina is no longer alone, especially now that the Obama administration has advised states that federal sex-discrimination law covers gender identity. In June, Kansas senators passed a resolution urging public schools and universities to ignore Obama’s guidance. A new Mississippi law, signed by the governor in April (but blocked by a judge this month), protects businesses that restrict transgender restroom access. Michigan is considering legislation curtailing bathroom access for transgender public-school students. And in May, 11 states filed a lawsuit accusing the federal government of illegally turning “workplaces and educational settings across the country into laboratories for a massive social experiment.” Last week, another ten states filed a similar lawsuit.

“This is an issue that’s sweeping the country,” says Richard Mast, a Virginia-based attorney with Liberty Counsel, a Florida-based litigation group and self-described Christian ministry that supports HB2. North Carolina declined Liberty Counsel’s offer of legal representation, but Mast claims at least twenty states have requested its assistance.

What’s coming next in North Carolina? We really don’t know, and that’s the point: “black box” legislation like HB2 has become commonplace.

“You’re sitting next to a budget that landed on my desk this morning that we’re going to vote on tomorrow,” Jeff Jackson, the Democratic senator, told me in June. “No one’s seen any of this. There was no public input. It’s $22 billion. This has become the norm.

“That’s what I like about HB2: it’s gotten people’s attention,” Jackson added. “What they need to understand is HB2s happen all the time. We pass budgets without reading them. The public gets no say. We neglect major investments on a routine basis. We’re gerrymandered from head to toe. I’m glad we finally have people’s attention.”

For a while after the passage of House Bill 2, Rocky Mount’s Christy Summersett avoided public places where she could expect to encounter large groups of people. “I wasn’t afraid of the law so much as the vigilantism that the law perpetuated,” she says. Having been fired before, she had an honest talk with the plant manager at the windshield company where she works. “He assured me, with no ifs, ands, or buts, that I will be safe where I’m at,” she says. “There will be no repercussions.”

For others, the impact has been more pronounced. Joaquín Carcaño, a 28-year-old former Peace Corps volunteer who coordinates an HIV program at UNC-Chapel Hill’s Institute for Global Health & Infectious Diseases, has been told by his therapist that using a women’s restroom would compromise his mental health. (Besides, he presents as male, with chin stubble and tattooed, muscled arms.) But UNC is a public institution, and the administration has sent mixed signals about how it will interpret the law. UNC president Margaret Spellings has said the system does not plan to enforce the bathroom provision, which has no enforcement mechanism. But she also wrote a memo April 5 stressing the campuses’ obligation to segregate restrooms by “biological sex.”

For now, Carcaño walks to another campus building, 10 to 15 minutes away, to use a single-occupancy bathroom. He recently learned of a lockable unisex restroom in his own building, but he rarely uses it because it requires the very public act of taking a housekeeping service elevator.

“It’s a mentally exhausting process,” says Carcaño, the lead plaintiff in a lawsuit, filed by the ACLU of North Carolina and others, challenging the new law. When he travels for work, he tries to make himself invisible and watches for hostile reactions at gas-station restrooms. “It’s very clear that there’s a target on our back,” he says. “It’s tough to feel you have to be prepared for a potential attack.”

Sharon Westfall, the Chapel Hill programmer, told me about visiting the North Carolina Zoo with friends after HB2 passed. Her driver’s license says she’s a woman, but her Michigan birth certificate lists her as male. Her face is feminine, thanks to surgery, but she is six feet tall and built (in her words) like a linebacker. When it came time to use a restroom, “I sat out there for about a half hour mulling it over: Which one is less likely to get my ass kicked? I decided to use the ladies’ room, and I was sweating bullets the whole time I was in there. When I finished, I didn’t even stop to wash my hands.”

Most of the trans North Carolinians I interviewed expressed heightened fear since HB2 became law. Mykal Slack, the minister, also has a driver’s license and birth certificate that don’t match. He tries to avoid government buildings. But that’s not always possible — and, to him, either restroom door poses danger.

“If I have an incident [and] police were to get called,” he says, “I’m keenly aware of how I may experience that moment as a black man. All I can do, really, is to keep my head down, do what I need to do and leave, and hope that nothing sketchy happens. But it’s only a hope. There’s only so much control I have.”