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North Carolina Claims It Repealed HB 2, But LGBTQ Activists Say New Law May Be Just As Dangerous

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Last week, North Carolina lawmakers repealed the anti-LGBT law HB 2, known as the "bathroom bill." But the new law that replaces HB 2 is facing widespread criticism from LGBT activists. The new law prohibits municipal governments from enacting anti-discrimination ordinances through 2020. The new law also denies employment and housing protections to the LGBTQ community. For more, we speak with James Esseks, director of the ACLU LGBT & HIV Project. And we speak with Joaquin Carcaño, a transgender man and lead plaintiff in the ACLU lawsuit against North Carolina.

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Video squareStoryMay 02, 2017ACLU Fight Persists in North Carolina: NCAA Basketball Has Returned, But Anti-Trans HB 2 Remains Law
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This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: It’s probably safe to say that many North Carolinians are thinking about the NCAA today. But that’s not just because the University of North Carolina Tar Heels are facing off against Gonzaga in tonight’s NCAA men’s basketball championship. It marks the second straight year that UNC has made the tournament finals. But the road to the Final Four was a bit harder this year for the Tar Heels. Unlike many past years, UNC had to make it without playing any tournament games in its home state. That’s because the NCAA pulled all regional games from the state to protest the North Carolina HB 2, which denied transgender people use of the bathroom, changing room or locker room that matches their gender identity.

AMY GOODMAN: Well, last week, North Carolina lawmakers repealed the law. But the new law is also facing criticism, and the NCAA is now weighing whether tournament games should be allowed in the state again. Under the new law, transgender people will be able to use the bathroom matching their gender identity, it’s believed, but municipal governments will be prohibited from enacting anti-discrimination ordinances through 2020. In addition, the law denies employment and housing protections to the LGBTQ community. Democratic Governor Roy Cooper signed the legislation Thursday, while acknowledging its shortcomings.

GOV. ROY COOPER: This is not a perfect deal, and it is not my preferred solution. It stops short of many things we need to do as a state. In a perfect world, with a good General Assembly, we would have repealed House Bill 2 fully today and added full statewide protections for LGBT North Carolinians. Unfortunately, our super-majority Republican Legislature will not pass these protections. But this is an important goal that I will keep fighting for. ... Now, House Bill 2 created a misguided, unworkable and unnecessary requirement that individuals use the bathroom that match the gender on their birth certificate. Today’s law immediately removes that restriction. It’s gone.

JUAN GONZÁLEZ: Governor Roy Cooper’s signature came on Thursday’s deadline set by the NCAA for the repeal of HB 2. The association said its governing board was reviewing the new law and would soon decide whether to extend a boycott of tournament games worth billions of dollars to North Carolina’s economy.

AMY GOODMAN: Well, for more, we’re joined by two guests. James Esseks is director of the ACLU LGBT & HIV Project. In North Carolina, Chapel Hill, we are joined by Joaquin Carcaño, who is a plaintiff in the ACLU lawsuit against North Carolina, a transgender man who works as a project coordinator at the Institute for Global Health and Infectious Diseases at the University of North Carolina.

We want to welcome you both to Democracy Now! James Esseks, let’s begin with you. It is very hard to understand what actually was passed and repealed on Friday. Please explain.

JAMES ESSEKS: Sure.

AMY GOODMAN: Is HB 2 still, in any way, on the books?

JAMES ESSEKS: Well, what happened was, HB 2 was repealed, and it was replaced with something that does just about the same kind of terrible things to the LGBT community that HB 2 did. So let’s take HB 2 in two parts. It did two major things. The first thing is that it barred cities and counties from having LGBT nondiscrimination ordinances. That was a permanent ban. Now it’s a ban through 2020. So, there’s a change, but not a big change, certainly nothing on the ground now, anytime soon.

The piece of HB 2 that got much more attention nationwide, appropriately, was the anti-trans portion of HB 2, which said that trans people were barred from using the restrooms that match their gender identity; instead, they had to use restrooms that match the gender marker on their birth certificate, regardless of whether they had managed to change that gender marker or not. That explicit bar on the use of restrooms by trans people has gone, but it’s been replaced by nothing. And that nothing sounds like nothing, but it’s actually enormously important. This new law, HB 142, says that it’s only the state Legislature that can regulate who gets access to what restrooms. Cities can’t do that. School districts can’t do that. Nobody else can do that. But then, of course, the Legislature has said, "We’re not going to tell you what restrooms trans people can use." So the bar from HB 2 is gone, but it’s replaced by a rule that school districts, state agencies, the University of North Carolina, state buildings can have no rule about where trans people or cisgender people use the restroom.

JUAN GONZÁLEZ: And what does that—what’s the impact on that on pre-existing situations. For example, didn’t the city of Charlotte have a nondiscrimination provision previously that it then withdrew as part of a compromise for this legislation?

JAMES ESSEKS: Exactly. So, Charlotte had a nondiscrimination ordinance that covered LGBT people and specifically addressed the restroom issue, question. In December, as part of an attempt to repeal HB 2, the Charlotte City Council repealed that ordinance. So Charlotte no longer has that ordinance, and there are no protections at the city level for trans people or LGBT people in Charlotte. And what this does is—

JUAN GONZÁLEZ: But now it’s also prevented from reinstituting that, right?

JAMES ESSEKS: Absolutely. So they can’t fix it now, and permanently. This ban on any regulation by anybody in the state other than the state Legislature about restrooms is permanent. And so, it leaves people like Joaquin in a difficult situation. You can go to your supervisor at work and say, "OK, what’s the deal? Can I use the men’s room or not?" I read that state legislation to mean that the supervisor cannot provide an answer, because that would be a policy. That’s ridiculous.

AMY GOODMAN: Let’s go to Joaquin Carcaño, a transgender activist in North Carolina. If—you have a suit against North Carolina for HB 2, which has now been repealed. HB 142 has replaced it. Your thoughts?

JOAQUIN CARCAÑO: You know, HB 142 is just a repackaged HB 2 under a different name. As James said, it’s been replaced, but we still don’t have any safety, we still don’t have any protections, and we’re still actively restricted from navigating our daily lives.

AMY GOODMAN: So how will it affect you? And talk about your activism and the activism that brought North Carolina to the point it’s at right now, losing hundreds of millions of dollars because of HB 2 in place, and now everything that’s happening with the NCAA, pulling the games from North Carolina and now considering whether or not to consider the new bill, 142, as an adequate substitute.

JOAQUIN CARCAÑO: The fight continues. You know, I think this was a tactic to sort of undermine our momentum in our fight that we’ve invested a lot in the past year to combat the damage of HB 2. But it still continues, because the—you know, the violent discrimination of this legislation is still existent in the state. And so, we continue. We continue fighting. We continue to ask for a boycott to the state, for the NCAA to not return to North Carolina, and for the state and the nation to continue to see that North Carolina is actively discriminating against our community.

JUAN GONZÁLEZ: And what’s your response to those legislators who you considered to be allies in this fight, who were supportive of the LGBT community and then ended up voting for this particular bill?

JOAQUIN CARCAÑO: They sold us out, I mean, completely. There were empty promises that were made to us leading up into elections. We gave a lot of support, and not just, you know, the LGBT community, but our own allies and our friends, our family, our communities. We all really threw our support behind these legislators that said that they would protect us going forward, that they would fight for a complete repeal of HB 2. And that’s been compromised. Our lives, our rights have been compromised. And we’ve been sold out.

AMY GOODMAN: Last year Democracy Now! spoke to Payton McGarry, a student at University of North Carolina-Greensboro and a plaintiff in the federal lawsuit filed to challenge the new North Carolina law, HB 2, at the time. He told us his story, why he got involved in the case.

PAYTON McGARRY: I am a 20-year-old student at UNCG in accounting and business. Give you a little bit of backstory, I grew up in a small town in North Carolina. At about the age of 15 or 16, I started feeling different. You know, something just felt a little bit off. I started coming out to my family, my friends, and seeing a therapist based on like gender and all that good stuff at 17 years old, and started hormone replacement therapy at 20—18 years old, sorry. And here we are. So, it means a lot to me that this lawsuit is taking place just because of my own experiences with opposition to my gender. And I’ve experienced a lot of just distressing discrimination in North Carolina. And I can’t believe that we’re passing laws now that actually not only enable it, but in some cases require it.

AMY GOODMAN: So, Joaquin Carcaño, the lawsuit is actually named for you, Carcaño v. McCrory. Now, of course, the new governor, it will change to v. Cooper. Can you tell us your story, how you came to be the named person in this lawsuit challenging the state of North Carolina?

JOAQUIN CARCAÑO: Yeah, definitely. You know, the ACLU and Lambda Legal had reached out to individuals at UNC once HB 2 was passed, and I had received some communication they were interested in talking to affected students and staff members at UNC. And I responded and just said, "This is who I am. Let me know if I can be of any help." And the conversation went from there.

But, you know, in regards to getting involved in this fight, I am a transgender male, a transgender Latino male. I’m from Texas, where similar violent discrimination and legislation is trying to be passed. But also, in my role at UNC, I serve the trans Latina community, and that is really, really important to me, to be able to fight for my community on very many levels, but also offer some protection to the trans Latina community that I serve, that face lots of discrimination and violence, day in and day out. So this is not just about me personally, but about my broader community and who I serve, in my personal life, my professional life, and being able to offer whatever kind of protection I can. And this was an opportunity to take on this fight.

JUAN GONZÁLEZ: And, James Esseks, what about the implication across the country for the continuing battle in North Carolina?

JAMES ESSEKS: Well, I think, at this point, all eyes are on the NCAA and to try and figure out what it is they do. Do they decide that the changes, the small changes, in the law in North Carolina are enough to, you know, excuse the discrimination, and they’re going to sign off on that and allow the state to once again host championships, or are they going to stand firm and stand up for the principle that they stood up for at the middle of last year, when they said, "You know what? This is not acceptable"? And the reason all our eyes are on the NCAA is that there’s a range of other states that have similar HB 2-like bills that they’re considering. Texas is prime among them. And I think if there’s a sense that, oh, the business community doesn’t care, that the sports community doesn’t care about these laws, we’re going to see more of these, and there’s going to be more harm to LGBT people all over the country.

AMY GOODMAN: We want to thank you both for being with us, James Esseks, director of the ACLU LGBT & HIV Project, and Joaquin Carcaño, speaking to us from Chapel Hill, transgender activist, student at University of North Carolina, plaintiff in the ACLU lawsuit.

This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, we’ll be joined by Reverend Barber to talk about other issues that were involved with HB 2 and also this 50th anniversary of the speech Dr. King gave here at Riverside Church in Manhattan, speaking out against the war in Vietnam. Reverend Barber gave the sermon yesterday at Riverside Church. Stay with us.

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Rev. Barber: New North Carolina Law Replacing HB 2 is Anti-Gay, Anti-Worker and Anti-Civil Rights

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