How can North Carolina close the door on its controversial bathroom law?
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North Carolina’s controversial “bathroom” law, H.B.2, has drawn national attention — and a national boycott of North Carolina. Getting past it won’t be simple.

The story so far

Before all the fussing started, anyone who went anywhere in North Carolina “without authorization” was guilty of trespassing. That included a man in the ladies’ room. So if Caitlyn Jenner went into a ladies’ room, she’d be trespassing if prosecutors convinced a unanimous jury that Ms. Jenner was a man. 

In March 2016, Democratic-controlled Charlotte said businesses couldn’t keep anyone out of a single-sex area because of “gender identity” or “gender expression.” So Ms. Jenner would have been explicitly authorized to use the ladies’ room at the NBA All-Star game in Charlotte. If the H.B.2-inspired boycott hadn’t moved it to New Orleans.

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Yes, H.B.2. After Charlotte acted, some legislators worried that troublesome males could pretend to identify as female and legally insist on using the ladies’ room. That conjured up scary thoughts of Peeping Toms — and predators. Immediately, the Republican legislature passed H.B.2, overruling Charlotte’s ordinance, and saying the bathroom you use depends on what your birth certificate says. Now, Ms. Jenner can use only the men’s room.

 

H.B.2 had add-ons. Beyond the bathroom rule, H.B.2 wiped out local minimum wage ordinances, as well as non-discrimination ordinances (NDOs) in 18 other North Carolina localities that hadn’t caused any uproar.

Those 18 NDOs dealt with issues like access to housing and city jobs. Six of them protected not just sexual orientation but gender identity and expression. So, for instance, if Ms. Jenner moved to Greensboro and somehow qualified for public housing, the city couldn’t turn her down flat.

Those 18 ordinances didn’t provoke the legislature. Nobody was fighting about bathrooms. 

But after H.B.2, folks objected, and boycotts started. Businesses looking at North Carolina got nervous, and sports championships got taken out of state.

Eventually, Democrats and Republicans said, “This is silly.” Charlotte graciously if not gracefully backed down, revising its ordinance so H.B2 could be repealed. But then the legislature balked.

Here’s why: If the legislature backed off completely, some other town could just copy Charlotte’s bathroom ordinance. No deal.

Recently, Gov. Roy Cooper proposed making localities give the legislature 30 days’ notice of any proposed new NDO. That notice looks like a way of setting up Queensberry rules for round after round of fighting. Isn’t there a better way?

Solution No. 1: Bathrooms

Bathrooms may be the easiest piece of the H.B.2 puzzle. We can just go back to the law we had before Charlotte passed its bathroom ordinance, fleshing out former Republican Gov. Jim Martin’s suggestion to revert to “pre-existing law and practice.”

Then Ms. Jenner can use the ladies’ room again. Anyone who thinks she’s using it “without authorization” can press trespassing charges.

“Members of the jury, what is your verdict?” “Not Guilty.” Case closed. Problem solved, thanks to the American way.

Sexual predators and Peeping Toms will still get away with nothing. North Carolina’s criminal law worked, and H.B.2 wasn’t needed before Charlotte’s ordinance. That won’t change.

Solution No.  2: Minimum wage

Local minimum wage rules are no practical barrier to a deal. Even if Democrats insist on allowing them as part of a Close the Bathroom Door package in February, the legislature could wipe them out again in March. Democrats would fume, but the NBA and NCAA boycotts wouldn’t come back.

Solution No.  3: Non-bathroom NDOs

Now for the hard part. Prepare for technicalities.

Maybe North Carolina can break the non-bathroom logjam one log at a time, by local option. It can revert to “pre-existing law and practice,” letting each community decide what non-bathroom nondiscrimination rules it wants. 

That won’t suit everyone. As with bathrooms, some H.B.2 fans might tolerate no local NDO. This would take “pre-existing law and practice” for non-bathroom NDOs back many years before Charlotte. Meanwhile, the anti-H.B.2 side would like a statewide nondiscrimination rule, with no local variation. They proposed that in this year’s H.B.82, but they don’t have the votes.

But even if local option is the answer, the plot thickens. What was “pre-existing law and practice” for local option on NDOs?

A broad view says localities can adopt NDOs covering every non-bathroom case listed in H.B.82, like housing, employment, borrowing and education.

A narrow view is that localities can adopt only the exact kind of non-bathroom nondiscrimination rules contained in the 18 ordinances. The legislature tolerated those rules, but no more.

Between those views lie other middle grounds. For instance, any solution involves ignoring a bizarre, stalemate-producing technical view of “pre-existing law and practice” that states all local NDOs were invalid under North Carolina law. But then H.B.2 would have been unnecessary.

None of these approaches to non-bathroom issues will suit everyone. But for North Carolina’s famous bathroom bill to linger because the sides can’t agree on non-bathroom issues? That would be embarrassing.

Stretching the middle ground

OK, so some “pre-existing law and practice” middle ground should save the day.

But what if a logjam remains? A new law can contain granular refinements to reach agreement.

Call them bells and whistles, or glosses. Here’s a menu:

Notification and delay gloss (H.B.107): Require any locality seeking to enact an NDO to provide 30 days' notice to the General Assembly. (This would re-escalate every local ordinance into a statewide, and would leave the wound open.)

Opt-in gloss: Allow local ordinances only if voters in the locality approve by plebiscite in the next general election. This happens all the time, with local voters approving liquor by the drink, and many more issues. 

Opt-out gloss: Allow ordinances unless (1) enough residents of the locality petition for a plebiscite, and (2) a majority votes down the NDO. North Carolina standards for petitions for ballot access range from 2 to 5 percent of registered voters.

Conclusion

No middle ground will satisfy everyone. Folks on both sides — call them hardliners — sincerely yearn for victory based on principle and morality, and despise symbolic defeat. But a principled return to “pre-existing law and practice” sows pardon where there is injury, and it relegates the non-problem of the wrong bathroom to old, tried and true trespassing law — and to the jury.

In early 2016, our bathroom laws weren’t “broke.” Let’s undo all the “fixing” that did break them. This won’t be simple. But we can ask our leaders to sit down together and assemble a package to make the fighting stop.

As a Christian pastor put it: We can live together as brothers or perish together as fools.

 

Pat Oglesby is director and founder of the Center for New Revenue. He previously served as chief tax counsel at the U.S. Senate Finance Committee and as international tax counsel at the Joint Congressional Committee on Taxation.


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