by David Forbes April 5, 2017

Democrats, including two local legislators and Asheville’s mayor, ignore civil rights groups and cave on HB2, leaving the law practically intact. With its roots in earlier ‘compromises’ by our city’s leaders, this politically incompetent and morally bankrupt act is something no one should forgive or forget

Above: Anti-HB2 protesters in the center of downtown just over a year ago. Many Democratic leaders, including some Council members and local legislators, vocally opposed the legislation, only for their support of the LGBT community to fold in practice. Photo by Max Cooper.

Politicians have to work hard to generate something as absolutely, unrepentantly awful as the HB142, the “repeal compromise” that the people of this city and state are now being asked to stomach.

Since much of the media has defaulted on their job here, let’s make it crystal clear: HB142 is neither a repeal or a compromise, unless one considers one side in a war throwing down their weapons and fleeing as fast as their panic will take them a compromise. “A legislative modification and renaming that leaves almost all of HB2 intact” would be accurate. “Rout,” “failure” and “surrender” also spring to mind when describing the political situation.

To get to this spot, the leaders of the Democratic Party — including Buncombe legislators Sen. Terry Van Duyn and Rep. John Ager, with the support of local leaders like Asheville Mayor Esther Manheimer — had to abandon the strongest political position they’ve had in years and purposely ignore the shouts of every single civil rights and progressive group along with thousands of their own constituents.

In return they ended up hooked to a deeply unpopular law, further enshrined discrimination against the LGBT community and gave their Republican enemies a totally preventable political coup.

All over a goddamn basketball tournament. On that one front, they got their wish. The NCAA will “reluctantly” end its boycott of the state.

This isn’t just a state matter either: Asheville plays a key role in this, and not just because Manheimer endorsed this travesty. The facade of “compromise” local leaders created, against the wishes of many LGBT activists, to get the SoCon tournament here played a part in convincing state legislators desperately seeking a route to ditch us queers in an effort keep the sports and get some headlines about “compromise.”

So here’s what HB142 actually does, the nature of the Democratic collapse and how it ties into events in our own city. That last part is important: if Asheville set the tone for this colossal fuck-up, it can also set an example of how to fight back.

HB 2.0

HB2, while tagged as the “bathroom bill,” did a number of awful things. It banned localities from passing their own non-discrimination ordinances. Charlotte had one such law on the books for about a half a century, affecting access to public accommodations and businesses. After years of political battles, Charlotte City Council added protections for LGBT people to it. The legislature retaliated with HB2.

HB2 left intact ordinances that protected local government workers (like Asheville’s living wage and nondiscrimination policies). Though Gov. Roy Cooper and others have asserted that it didn’t and that their deal restores such rules, they’re wrong (it may allow some minor changes in cities’ rules regulating contractors). For good measure HB2 also banned local labor regulations and minimum wage rules. It also removed the right to sue over discrimination in state courts.

Famously, it contained an (unenforceable) rule that all government agencies (including universities and local governments) only allow people to use the bathroom that matched their “biological sex,” further defining that as the sex listed on one’s birth certificate. This was obviously targeted at trans people.

The bathroom part is not a distraction, as some wrongly asserted at the time. Evil legislation hits people on multiple fronts like class, race and gender all at once, and this was a sterling example. Our state’s particular breed of reactionary has a long tradition of hating both civil rights and labor; HB2 fit squarely into that.

So how much of this does the HB142 “repeal compromise” take away?

Functionally nothing.

The one original part of HB2 that is actually, fully gone was ended last year, when under massive pressure Republican legislators restored the right to sue.

HB142 keeps intact the ban on local non-discrimination, minimum wage ordinances and labor regulations until late 2020 (when a Republican legislature could simply extend it further).

The legislators targeted bathrooms for a reason. They’re the subject of a whole phobic set of lies that gets trans people killed, hurt or outright driven from public life. Access to them is a key part of ensuring the ability to participate in society, that’s why almost all major civil rights legislation deals with restrooms.

On the bathroom front HB142 prohibits local agencies from making any rule on access to restrooms. It takes away the old “biological sex” and birth certificate criteria of HB2, meaning that access to such facilities falls back to earlier state rules prohibiting discrimination based on sex.

The position of the Justice Department (under the previous administration) and countless LGBT legal defense groups when HB2 was passed was that protections on access to public facilities regardless of “sex” also apply to gender identity. While this position has firm legal grounding going back decades, given the political realities right now any agency asserting that “sex” also covers gender identity will have to wage a legal battle to argue their point. Especially as HB142 prohibits them from issuing just such a clarification.

State Sen. Terry Van Duyn, at right in white suit, at a March 24 anti-HB2 rally last year. Van Duyn, against the wishes of LGBT and civil rights groups, backed a bill that left HB2 functionally intact. Photo by Bill Rhodes.

So the legal mechanisms may have changed a bit, but functionally nothing else has. North Carolina law still implicitly views trans people as a a threat and still targets them in legislation.

If a government agency wants to counter that and assert that it recognizes our basic rights, it’s going to end up the same place it did under HB2: in court. Indeed, the Democrats that agreed to this “compromise” in a sop to concerns about “privacy” actually strengthened the bigoted lies use to pass HB2.

Just yesterday, a bill was introduced that goes even further, introducing stepped-up legal penalties for those caught “trespassing” in restrooms intended for the “opposite sex.” Given the level of bigotry marshaled in the fight over this bill, that will disproportionately target trans people (along with anyone a bigot thinks is trans) anytime someone doesn’t feel like they “belong” in a certain restroom.

As ACLU attorney Chase Strangio has pointed out, this means HB142 further enshrines discrimination against N.C’s trans population, “who are once again placed in untenable positions, who are once again told they are unworthy of protection, who are once again sent the message that it really doesn’t matter to the powerful, moneyed interests whether we live or die.”

Boldly running away

A journalism mentor of mine cautioned that when it comes to politics and power, never put your primary attention to promises and words. It’s not that words don’t matter, they do, but the reality of politics, she reminded, is usually determined by three other things.

Who and what are emphasized? Who and what are ignored? Who and what are considered expendable?

That’s worth keeping in mind when reviewing how HB142 happened, as most of the Democrats in the state legislature dropped their opposition. In doing so, they accepted a deal even worse than a previous, awful “compromise” they rejected back in December.

They had to work to screw up this badly, wasting the strongest position they’ve had in many years and demonstrating a lack of competence as well as courage.

Asheville Mayor Esther Manheimer. File photo by Max Cooper.

HB2 was a deeply unpopular law that cost the state massive amounts of money and made North Carolina a national laughingstock. Up until last week, this particular toxic albatross was entirely around the N.C. GOP’s neck. Even in a year when Republicans did pretty well, Gov. Pat McCrory lost the governor’s mansion. Combined with the other bevy of bad acts pushed through by Republican legislators, HB2 helped play a major role in marshaling their opponents, giving Democrats some actual momentum in the process.

The deadline the NCAA set on repealing the notorious law gave the Democrats the strongest political hand they’d had since they lost the legislature in 2010. The GOP was under heavy pressure from business conservatives to make the HB2 stigma go away. But due to the fact that many of its own caucus are really, really committed to being awful bigots, its leaders didn’t have the votes in their own party. For once they would actually need Democratic votes, meaning that despite their low number of legislative seats, the Dems had a lot of clout to press for straight-up repeal.

If they didn’t, if the GOP wouldn’t concede by the NCAA’s deadline, the architects of an already unpopular bill would suffer a major political defeat. That would have given the Democrats an even stronger position on a proven, winning issue going into next year’s legislative elections. All they had to do was hold the line for a few weeks. They didn’t.

Across the board, civil rights groups swiftly called on them to reject HB142. The NAACP (“an insult to civil rights”), the ACLU, the Asheville-based Campaign for Southern Equality (“creates new barriers for LGBTQ equality”), Equality NC, the AFL-CIO (“deeply disappointed”) Planned Parenthood (“would hurt the same people who count on us for care”) and many, many more shouted at them not to go through with this. Even the Human Rights Campaign, which has a shoddy record of its own, condemned HB142 to the point that it promised to actively oppose any Democratic legislators who voted for it.

One would think that would have resulted in some pause. After all, electoral politics isn’t just party machinery, especially with an organization as shambolic as North Carolina’s Democrats. Political power always rests on a constellation of constituencies, groups that support or rally them and issues that band people together and draw on their loyalties to get them actively fighting.

Political parties do better when voters who are more likely to side with them (or at least oppose their enemies) are more energized. What had given the Dems the governor’s mansion was years of increasing opposition to the state legislature’s moves on the environment, education, civil rights, labor and more. HB2 was so repulsively absurd that it energized that opposition even further. Now, just as they were taking tentative steps to rebuilding a coalition, Democratic leaders alienated nearly all the groups representing major constituencies with a clear and incompetent betrayal.

For a basketball tournament.

I’ve often received questions about why more of my generational peers don’t get involved in the Democratic Party. “Because the Democrats are cowards who are crap at politics” is a distillation of the most common answers I receive, and the above offers an example of why that perception is often accurate.

The above shows us pretty clearly what most of the Democrats’ leaders emphasize and who they’re willing to ignore. The answers to the last question — who and what are expendable here — are the worst of all.

Locally, Democratic legislators split. Sen. Terry Van Duyn supported it, as did Rep. John Ager. Reps. Susan Fisher and Brian Turner, to their credit, voted against the measure.

Alongside Ager and Van Duyn on the roll of dishonor we can now add Mayor Manheimer, who noted in a recent statement to the press that “the bill represents a compromise between the legislature and the governor. I applaud their ability to come to an agreement and see it through to passage”

The state legislators, in their statements, made a show of how hard or painful the decision was.

They’re fooling themselves if they believe that. Supporting this horror personally cost them nothing. Van Duyn, Ager and Manheimer don’t face an ounce of transphobia. They are all sufficiently well-off that the anti-labor parts of HB142 leave them unscathed. Their votes or vocal support expend nothing but the rights and safety of other people.

For those in their position that is the easiest thing in the world.

Council capitulation

Attention, in addition to bringing so much public pressure to bear that the supporters of HB142 regret it for the rest of their days, should now turn to City Hall. This raises the question of where Asheville’s leaders are. How much have they done for LGBT rights, especially in the wake of HB2?

Despite the city’s nature as a hub for LGBT activism, the answer is “not that much.”

In 2010 there was a political battle over a domestic partner registry and non-discrimination protections for LGBT city workers. There was an equality resolution the next year and the occasional statements in support of equal marriage in the years following that. When federal courts ruled in favor of equal marriage, local government hung a pride flag from City Hall. There’s been the occasional statement condemning more anti-LGBT discrimination. That’s about it.

A pride flag flies from City Hall in October 2014 after equal marriage is legalized by a federal court ruling. Photo by Max Cooper.

The “progressives” who hold majorities on Council have sought a perpetual pat on the back for these good but incredibly basic actions. From the moment Charlotte passed its ordinance, the reaction of most Asheville City Council members wasn’t ardent support for the LGBT community in a time of crisis. It was instead to defer, delay and at all costs not take any sort of concrete action if they could avoid it.

This is not helped by the fact that Asheville City Attorney Robin Currin, espouses a far-right legal position on cities’ ability to combat discrimination. In a nutshell: she doesn’t believe they have one, taking an incredibly narrow and dubious legal view of local government powers.

In the lead-up to HB2 the Charlotte City Attorney’s office (hardly a bastion of radical leftism) and multiple lawyers and organizations around the state found otherwise: even with N.C.’s constraints, non-discrimination ordinances were clearly allowed. To put Currin’s position in context it was even more far-right than the architects of HB2, who took the stance that they needed to pass a whole new law to bar cities from making non-discrimination rules.

That’s not all: at last year’s Council retreat Currin asserted in a back-and-forth that “they/them” pronouns (used by many trans and queer people) are grammatically incorrect. That’s not true, of course, Currin’s just completely clueless about the basic facts of an issue that has remained a major topic of discussion in municipal politics across the country for years and is particularly key to Asheville. Or she’s simply a bigot.

That kind of sterling progressive legal mind helming things over at City Hall has helped fuel a blithely petulant “what, we actually have to do something?” response from most Council members. In the weeks after Charlotte expanded LGBT protections Tranzmission, Equality NC and CSE called on Council to do the same in the hopes of gaining momentum for a larger push for LGBT rights across the state. Some Council members were tentatively in favor of this step, but ran into the wall of Currin’s tangled legalese and the perpetual trepidation of their colleagues.

After HB2 city leaders were slow to offer any public response. Eventually, when a statement was crafted, it was initially tepid and conciliatory.

Asheville City Attorney Robin Currin. File photo by Max Cooper.

This met with some backlash, to put it mildly. Due to a combination of public and internal pressure, Council did end up passing a much stronger condemnation. During this it further emerged that Council wasn’t all of one mind: shortly after HB2’s passage, Council member Keith Young emailed his colleagues calling on them to do something and harshly condemning the law and the bigotry behind it.

There things rested until last September. As the effect of boycotts and public pushback bit deep, attention turned to Asheville again. The SoCon basketball tournament was considering pulling out of the city due to HB2. City leaders and the local gentry pleaded with them to stay.

Some LGBT rights activists felt otherwise, noting that when you’re trying to put pressure on a government, you have to actually put pressure and accept the costs accordingly. But SoCon stayed.

The level of false “compromise” here has become more apparent in the time since. CSE actually proposed that the condition of SoCon returning to the city should be that Asheville adopt a non-discrimination ordinance specifically in defiance of HB2, to make it clear the city was taking all possible steps to fight the law and protect Ashevillians. As it was clear the infamous bill was a legal shambles, CSE also offered a white paper laying out the legal rationale and detailing the proposal for the city’s path forward, including the establishment of a Human Rights Commission. The organization even offered a pro-bono team of lawyers to help the city defend this route. They received no response from Council. All the LGBT community received from SoCon was a single gender neutral restroom.

In retrospect that capitulation takes on new importance, signaling to other Democrats around the state that token steps and re-branding could get them things they cared about a lot more than civil rights, just labor conditions or the fate of LGBT people.

Manheimer’s statement shows that attitude is alive and well.

But there is an opportunity for change here.

Four seats, including Manheimer’s, are up for election this year and in such times Council’s usual culture of complacency tends to get a bit of a jolt.

The public should call on Council (here’s how to contact them all) to pass a condemnation of both HB142 and the actions of the legislators who passed it. If the mayor objects, press forward anyway. If the supporters of such a move on Council don’t have a majority, move it to a vote all the same and make each Council member at least have to take a public position.

Then Council also must do what it should have a year ago: pass a non-discrimination ordinance and ready for a court battle to defend it. If the city attorney objects, ignore her and find someone less Scalia-esque to represent the city.

One message needs to get through loud and clear: it’s time for our local leaders to stop expecting perpetual deference from the LGBT community and actually do their damn jobs.

If they don’t, Van Duyn and Ager aren’t the only ones who need to be run out of office.

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