HB2 replacement makes all the wrong compromises

Friday, March 31, 2017
BY GABRIEL ROSENBERG, OPINION CONTRIBUTOR - 03/31/17 04:30 PM EDT
North Carolina's ignominious "bathroom bill," HB2, has been repealed, but few activists are celebrating.

The "compromise" bill that was signed into law Thursday removes some of HB2's onerous public bathrooms provisions. But for many of the state's most vulnerable citizens, the bill is very bad news, outlawing such basic protections as freedom from job discrimination.

Far from a victory, the new bill amounts to horse-trading in human rights.

This giant step backward should alarm the people of North Carolina. And the entire HB2 episode should warn activists and citizens in other states that economic boycotts can be very risky. They are deeply flawed as instruments for democratic action, and they often fail to help the most vulnerable among us.

HB2 mandated that in publicly owned facilities, people could only use a bathroom that corresponded to the "biological sex" listed on their birth certificate. It also stripped local municipalities of the ability to enact nondiscrimination ordinances encompassing gender identity or sexual orientation, as well as the ability of municipalities to establish a minimum wage or provide workplace protections for government workers.

The latter provisions were less discussed. HB2 viciously targeted trans people, but also gays and lesbians, workers and the poor.

And since many trans people, gays and lesbians are also workers and poor, HB2 intensified the economic discrimination from which all those groups suffer.

The backlash to HB2 was swift. Boycotts related to the law are calculated to have cost the state billions of dollars worth of economic activity, and have brought the loss of culturally significant events such as NCAA competitions and the NBA All-Star Game.

Anger over HB2 likely also played a major part in the failed reeelection bid of Republican Gov. Pat McCrory, who lost in an election cycle that saw Republicans Donald Trump and Sen. Richard Burr carry the state by healthy margins.

Now, newly elected Democratic Gov. Roy Cooper and GOP legislative leaders have crafted a compromise: The state bathroom regulations go, but there will be a moratorium on municipal nondiscrimination statutes until 2020 and no statewide ban on employment discrimination on the basis of gender identity or sexual orientation.

Most activists working for HB2's repeal see the compromise as a disgrace. They're right.

Cooper and the GOP are horse-trading with the basic human rights of their constituents. All people have a right to access basic public accommodations; all people also have a right to fair employment conditions and to petition local governments to safeguard their rights.

The compromise requires that some people lose access to fair employment and the right of petition so that they can gain access to public accommodations.

Republican Party leaders describe this compromise as a "give and take." And it is. The compromise takes basic rights from LGBTQ citizens and gives access to accommodations that never should have been denied in the first place.

So it's a give-and-take just like when a bully steals your wallet but lets you keep bus fare home.

What's clear is that the compromise is not about the safety, well-being or basic human dignity of LGBTQ people; it's about money. Cooper gives the game away when he says that the compromise is "not perfect" but "begins to repair [North Carolina's] reputation."

What this means is that the compromise is not satisfactory to LGBTQ people and their allies, but it may satisfy the multinational corporations boycotting the state because of HB2.

This reveals one of the dangers of using boycotts to safeguard basic human rights. The pivotal question becomes about corporate optics and marketing, not fair treatment of the state's citizens. Marginalized people already face daunting challenges in obtaining basic legal protections and safe working and living conditions. Boycotts depend on the goodwill of multinational corporations, whose interests don't necessarily align with those of vulnerable people. Also, boycotts sometimes win symbolic or partial victories at the expense of full justice for the vulnerable.

Comparing the HB2 compromise to the resolution of a similar controversy in Indiana is instructive. In 2015, Indiana passed and then-Gov. Mike Pence(R) signed the Religious Freedom Restoration Act (RFRA). It provided individuals and businesses broad religious exemptions from municipal non-discrimination ordinances.

Just as in North Carolina, RFRA provoked national outrage and boycotts. Bowing to national pressure, Indiana enacted a "fix" stipulating that the exemptions could not be used to justify discrimination on the basis of gender or sexual orientation.

So did the RFRA boycotts provide justice for LGBTQ people? That's debatable. Much of the national debate focused on Christians forced to bake cakes for same-sex weddings.

But in Indiana, as in North Carolina, the most significant form of discrimination faced by LGBTQ people is employment discrimination. Neither state prohibits job discrimination on the basis of gender identity or sexual orientation. Indiana, like North Carolina, is an "employment at will" (or "right to fire") state where employers can dismiss employees for any cause. The "fix" changed neither of these things.

In Indiana, as in North Carolina, an employer can still fire an employee for being gay or trans.

The advantages of massive national boycotts are obvious. It's simple for average citizens to join up. It's much easier to swear you won't spend money in North Carolina than to, say, research local grassroots organizations fighting to repeal HB2 and support those organizations with time or money. Also, multinational corporations have access, voice and power that most individual citizens lack. When big corporations speak, politicians listen.

It's dangerous, though, for marginalized citizens to depend on the rich and powerful to "punish" wayward politicians. The rich and powerful make inconstant allies for the weak and marginal, precisely because their interests rarely dovetail. Multinational corporations may agree that HB2's bathroom provisions are intolerable and embarrassing, but will they fight to guarantee robust labor protections for LGBTQ people?

If the HB2 compromise is any indication, it suggests they will not.

Boycotts carry the risk of disengagement and abandonment. There is a real alternative, though, and we saw it recently in the grassroots activism that contributed to the humiliating capsize of the American Health Care Act.

Now, more than ever, LGBTQ people in North Carolina need the support of that sort of activism. They need money, time and energy. And their message to North Carolina's politicians should be this: The real problem with HB2 was not that it offended moneyed plutocrats, but that it materially harmed trans people, gays and lesbians, and workers.

Gabriel Rosenberg is an assistant professor of gender, sexuality and feminist studies at Duke University, and author of "The 4-H Harvest: Sexuality and the State in Rural America."

http://thehill.com/blogs/pundits-blog/civil-rights/326777-hb2-replacement-makes-all-the-wrong-compromises

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