June 29, 2016 — Yesterday, in what appears to have been a premature release of a legislative leadership bill hopefully designed to begin the process of eventual repeal of HB 2, the press reported on a draft bill which, among other provisions returns the right of North Carolina citizens to sue for race, sex, ethnic, and religious discrimination as a matter of state law in state courts; moves to adopt, at least in part, a federal definition of the term “sex”; and creates an Anti-Discrimination Task Force to work to remedy the myriad of problems and repair the extensive damage caused by HB 2.
For three reasons at the start, this bill falls woefully short of what was needed – a full repeal of HB 2 – but at least provides the beginning of some acceptance of responsibility for the enormous harm inflicted by HB 2. It may also, if good faith exists on this issue at all, provide a mechanism to, sooner rather than later, achieve what history and humanity require: full non-discrimination protection for LGBT citizens in our state.
First, begin with the proposition HB 2 should never have been enacted in the first place. Coursing through the ink of every word of that bill was an animus against LGBT citizens. Discrimination, and all of its collateral effects, is an act of violence—an assault on a person’s right to equal dignity. It is the result of subjective, irrational perceptions which drain individuals of their dignity because of their perceived equivalence as a member of a vulnerable minority group, in this case LGBT residents. Misperception lies at the heart of prejudice and the animus formed of such ignorance sows malice and hatred whenever it operates without restriction. HB 2 was a bill born of misperception, fueled by ignorance, and driven by discriminatory animus. It was an abomination at birth, as the NC Justice Center made clear in every tweet, email, and plea on the day it was passed, and just as predicted, has cast a generational stain on our state’s reputation that will not easily nor quickly be removed.
So, start with a bill whose every provision, down to it subtitles and punctuation, placed North Carolina on the wrong side of history – not to mention the law – and I suppose any movement from that position can be greeted as some positive sign. I begrudgingly do so. But giving credit to the legislative body that inflicted the grievous wounds in the first instance simply because they paused to stop some of the hemorrhaging and not let the patient die is barely worth credit for time served on a life sentence.
Second, while the bill repeals the right to sue provisions stunningly and mysteriously struck from existing North Carolina law – where they were embedded for over 30 years – and eliminates the profoundly misguided reliance on “biological sex” as a statutory North Star divorced from science and medicine, this bill fixes nothing. It still leaves the LGBT community unprotected as a matter of state policy and law. It bars communities from forging a political consensus to move forward to a more inclusive society. It prohibits human beings from collectively and maturely growing spiritually by denying them the right to come together to decide whom they wish to protect from discrimination and how best to achieve that protection consistent with the rights of the minority and majority, and places LGBT citizens in a lesser place than they were in North Carolina before HB 2. Not for nothing, this leaves our state and Russia as the only two developed societies that once had LGBT protections in some measure and have now removed them. Quite a pairing!
In short, even after all the international and national condemnation — shockingly even after Orlando —this bill does little to move this state to a kinder, better, and gentler place. It also continues to betray the spiritual commandment to simply Love Thy Neighbor.
Third, while the Commission may turn out to be the only silver lining here, the bill shockingly leaves out all detail of its timing, structure, membership, and crucial guarantees, if any, that the recommendations of the Commission will possess legislative sway. All of those things deeply matter in determining whether the Commission is credible or simply window-dressing to get the majority past November and the NBA All-Star game.
All of that being said, I reach five conclusions. First, we need to continually and viscerally fight to repeal HB 2 in its entirety in the court of law and the court of public opinion, holding those responsible for its passage and enactment fully accountable for the economic, reputational, and personal harm it has and will continue to inflict. Second, legislative support for HB 2 remains deeply embedded in a portion of the majority party, far in excess of its support in the population of North Carolina. It is at odds with the increasingly clear law on many of the issues it purported to answer, and destructively counter to the economic, moral, and spiritual growth of our state. Third, there are elements, however, in the majority party who —perhaps too little too late — have finally come to terms with the extensive damage this bill has wrought —which predictably will continue even if this bill passes, given the essentially non-existent relief it seeks to offer on the front end. As Alexander Pope wrote, “A man should never be ashamed to own that he has been in the wrong, which is but saying in other words that he is wiser today than he was yesterday.” Fourth, those interested in LGBT protections and repealing the vast majority, if not all, of HB 2 do not have enough power in the majority caucus to achieve any more than this bill represents.
Finally, given this political context, we only stand a chance of moving North Carolina to the end goal of providing all of our LGBT citizens with employment, housing, and public accommodations protections for generations to come if – combined with voter indignation in the fall and litigation success in the courts – the suggested Commission is balanced, credible, accountable, and backed by serious national and state business interests. That must be the end goal, and on this principle, there really can be no compromise. But the means, timing and process of how to ensure this end with the most citizens of our state vesting in its outcome, that is the stuff a real Commission should be empowered to recommend and whose recommendations should be codified if consensus ( not unanimity) is reached. I can only pray that all who are appointed to such a Commission, if this bill passes, will live up to the critical task handed to them for the sake of existing and future generations of North Carolinians and ensure this state again becomes an enlightened, progressive force for social justice and equality for all who live here.