With sunset of ‘bathroom bill’ compromise, progressives begin push to pass local LGBTQ ordinances

FILE- In this March 24, 2016, file photo, people protest outside the North Carolina Executive Mansion in Raleigh, N.C. Tennessee businesses have banded together to try to convince their state legislators to snub laws similar to the infamous bathroom bill in North Carolina, which has consumed that state's politics for months and scared off businesses and sporting events. (AP Photo/Emery P. Dalesio, File )

RALEIGH — After the Dec. 1 expiration of a key part of 2017’s House Bill 142, billed as a compromise to end the controversy around H.B. 2, often called the “bathroom bill,” progressive groups are openly organizing to restart the fight.

H.B. 142 aimed to “reset” state law to the status quo before the controversy arose by repealing H.B. 2, reserving all jurisdiction to regulate public restrooms to the General Assembly, and prohibiting local governments from passing any ordinance “regulating private employment practices or regulating public accommodations.”

But this last section, Section 3, had a sunset clause, as Section 4 states, “Section 3 of this act expires on December 1, 2020.” And now Dec. 1 has come and gone, which in the view of progressive groups means they can begin pushing for local ordinances that include sexual orientation and gender identity as protected classes in employment and public accommodations.

Then-state Sen. Dan Bishop (R-Mecklenburg), who is now a U.S. congressman, was one of 10 Republican senators to vote against the compromise. Bishop’s vote was especially noteworthy since he had been the primary sponsor of H.B. 2 when he was in the state House. Bishop voted against H.B. 142 as a compromise because he said the sunset was simply a “punt” until 2020.

At the time, Bishop said, while speaking against the compromise on the Senate floor, that it “inescapably implies that 32-months hence, handfuls of local officials can use government power to coerce people to embrace an ideology of sexual ethics contrary to their values. It is in that sense a declaration of surrender, albeit, three years in advance.”

Progressive groups seem to agree. On Dec. 1, 2020, the day of the “sunset,” EqualityNC hosted an online “HB142 Sunset Townhall,” with elected officials Durham Mayor Pro Tem Jillian Johnson, state Rep. Susan Fisher (D-Buncombe) and Buncombe County Commissioner Jasmine Beach-Ferrara. Beach-Ferrara is also the executive director of the Campaign for Southern Equality. Other top staff of both CSE and ENC were also on the call.

Beach-Ferrara said with the sunsetting of H.B. 142, “One of the things we are hoping to do tonight is kick off a season of coordinated action across the state.”

Johnson agreed, saying, “I’m really excited now to use the power of local government to expand people’s rights.”

Fisher, the only member of the state legislature present, said, “With this section of H.B. 142 finally gone, North Carolina’s cities can once again protect their LGBTQ constituents in every arena of their lives from housing to health care to public accommodations.”

Fisher also said that with a Democrat in the governor’s mansion and no veto-proof majority for the Republicans, any effort along the lines of H.B. 2 by the conservatives in the legislature could be blocked.

“It can be vetoed and, fortunately, we still have an opportunity to sustain vetoes for this governor — we have enough members that that can happen. So I’m glad this sunset is happening, I look forward to seeing what cities do in response to it, and if anything comes up in the General Assembly that looks like trying to thwart it, I and others will be there to put up the roadblocks.”

Fisher indicated this new legislative power for local governments does not end with LGBTQ issues, saying, “This is for everything from accommodations to minimum wage increases to anything that they want to do separate from what the state does.”

After the town hall, several state and local officials posted on social media using the campaign’s “#NCisready” hashtag. Carrboro Town Councilmembers Susan Romaine and Damon Seils both tweeted their support, with Romaine saying, “Carrboro is ready! Let’s once again lead the way in providing equal protections for ALL of our residents. #LGBTQ #ncisready”

A website, ncisready.org, was also rolled out, which encourages visitors to click on their city’s name to contact all their local officials and tell them to advance pro-LGBTQ ordinances.

Tami Fitzgerald, executive director of the North Carolina Values Coalition, a leading social conservative organization in the state, said this all comes as no surprise.

“We have been expecting this since House Bill 142 passed because the legislature decided to punt it down the road with the sunset provision on Section 3 of H.B. 142,” Fitzgerald told NSJ on Dec. 8. “But we also expected the activist groups to put together something to push for what they want, and it looks like they have.”

Fitzgerald said because they saw this coming, her group has been talking with legislators at the N.C. General Assembly about a permanent solution, which they believe is simply making the bipartisan H.B. 142 compromise permanent, since it maintains the current status quo.

“H.B. 142 is a middle ground, so I don’t know why legislators wouldn’t make it permanent,” Fitzgerald said.

She said if local governments insist on “passing ordinances that they have no authority to pass,” they will likely see lawsuits from citizens harmed or legislative action from the Republican-majority General Assembly, and “there will have to be a remedy of some sort, whether it’s legislative or judicial.”

Fitzgerald’s NC Values Coalition and its allies have sent letters to cities across the state warning them of taking any drastic action after the H.B. 142 sunset. The letter concludes by saying, “North Carolina can respect the dignity of all of its citizens without enacting new ordinances that have devastating consequences for women, families, small businesses, and people of faith.”

Those at the town hall did not seem worried about any legislative or legal action if new LGBTQ-friendly ordinances are passed by local governments. Johnson, the Durham City Council member, made clear that these proposals were important enough that boycotts or other economic considerations were not a deterrent to moving forward. In fact, she considered the boycotts a useful tool — one which helped in the last round of this fight.

“I think what was really exciting coming out of H.B. 2 was we saw on a local level and on a statewide level the power of organizing and, specifically, the power of boycott as a political tool,” Johnson said as other members of the panel nodded in approval. She said that it was the boycotts that “lit the fire” in the state to get rid of the bill.

Despite local elected officials in Asheville, Durham and Carrboro stating they support moving forward with these local ordinances, Fitzgerald said they are not aware of any proposal along those lines being brought forward in the first week of the sunset.