In a letter to lawmakers, North Carolina Lt Governor Dan Forest wrote on March 27th:
This week you will be faced with the decision of whether or not to repeal HB2. I have been asked by many of you to voice my position on the issue. I summarize my views below:
- As President of the Senate, I do not have agenda setting authority over that body. I do not even have a vote, unless there is a tie. If I did have legislative agenda setting authority, I would NOT bring up the issue of repeal. If I did have a vote on the issue, and the issue came before me, I would vote against repeal, as I support HB2.
- I am deeply troubled that our respective elected bodies (House and Senate), duly elected by the people of this great state, seem to be reacting to the demands and timetables of an unaccountable, out of state organization (NCAA), not elected by the people, to enforce a radical policy change with which even their own organization does not abide.
- I fear that if our General Assembly succumbs to this new form of economic and corporate extortion, we will be establishing a precedent and illustrating a template for future corporate extortion efforts on any number of legislative issues.
- The economic arguments being propagated by the other side and willfully advanced by their allies in the media are inflated, manipulated and contrary to any empirical evidence. For instance, in 2016:
- North Carolina ranked 4th in the nation for attracting and expanding businesses. North Carolina ranked first in the South Atlantic region for drawing corporate facilities.
- Hotel and motel occupancy went up 3.4% last year, more than regional and national averages.
- Average hotel and motel room rates went up 3.6%, also more than average in the region and country. Tourism is up over 5.6%.
- NC is currently creating nearly 6,000 jobs per month.
- The estimated “negative” impact of HB2 is calculated at less than 1/ 10 th of 1% of our annual GDP, not even factoring in future gains in the economy.
- To my knowledge, to date, no company has packed up and left North Carolina– not one.
In reviewing draft repeal proposals that are floating around, I believe all have fatal flaws, as I now summarize in greater detail:
- Preemption on Bathrooms o A blanket provision that states local governments are preempted from regulating multiple occupancy restrooms, showers, or changing facilities without stating what the policy of the General Assembly is raises serious concerns.
- Generally, a law of a lower government is preempted when it conflicts with a law of a higher power, (e.g., a federal law regulating an issue in a manner inconsistent with a state law will render the state law preempted).
- HB2 did this in a much cleaner way. HBZ preempted the local ordinances while simultaneously providing statewide policy.
- Traditionally, cities have been empowered by express, statutory delegations of authority. Using preemption in this manner suggests a new game of whack-amole in which the General Assembly must anticipate and negate local actions. o With no established statewide policy to preempt the local ordinances, localities could argue that the unusual preemption approach has no impact and that they now have the authority to regulate multiple occupancy restrooms, showers, and changing facilities.
- Public Accommodations Anti-Discrimination & Employment Anti-Discrimination Allowing local governments the authority to create nondiscrimination ordinances is a departure from the longstanding limitations placed on the authority of local governments and will be burdensome for business. It is contrary to the General Assembly’s consistent efforts to reform and reduce burdensome regulation.
- Placing the interpretation of state law in the hands of the United States Supreme Court is an abdication of the duty of the General Assembly to establish the law of the state of North Carolina.
The United States Supreme Court has yet to rule on many of these issues, including the left’s new definition of “sex.” This will likely open the door for local governments to pass ordinances prohibiting discrimination based on “sex” and then interpreting “sex” to mean gender identity and sexual orientation.
- Local governments will be able to create new private lawsuits and even miniEEOCs all over the State.
- Rights of Conscience o The proposed language falls short of adequately protecting rights of conscience.
- It does not provide that a right of conscience may be asserted as a defense in a private cause of action brought by a plaintiff alleging that a business or a person violated the termS of a local nondiscrimination ordinance. This leaves businesses with a cloud hanging over their heads.
- Moreover, the proposed statutory provision fails to set forth the standard of review. Although some have claimed that North Carolina law uses a type of strict scrutiny for free exercise claims, the case on which that relies ties Article 1 13 of the North Carolina constitution to the First Amendment of the United States Constitution. The United States Supreme Court has since declared that laws of “general applicability’ do not raise free exercise issues and have effectively abandoned any type of real scrutiny of free exercise claims.
- There is, therefore, a very real possibility that, so long as the local ordinance is a law of general applicability (i.e. does not explicitly target a single faith), this proposed provision will provide little-to-no relief for the religious person in North Carolina.
- Cooling-off Period o A cooling off period, as has been proposed by certain bills does nothing but prolong this issue and provide city progressives a countdown clock.
- Loss of Wage and Hour Preemption o By providing a blanket repeal ofS.L. 2016-3 we also lose the preemption of local ordinances on wage and hour laws. A court could very well see this repeal as a green light for local governments to enact their own wage and hour laws.
- This could be a set up for hundreds of different minimum wages across our state, which would be untenable for our businesses.
- A local bill could not fix these issues whenever a local government steps out of line, as Article 2, S 24(1)(j) of the North Carolina constitution prohibits local bills “regulating labor.”
In conclusion, on the bathroom issue, it will never be good public policy to allow men into women’s and little girl’s bathrooms and showers. HB2 guarantees that will not happen now. HB2 provides reasonable accommodation for a small minority of people that fear using multi-stall facilities in a similar fashion to what we did with the Americans With Disabilities Act.
What the left is asking us to accept now is not reasonable accommodation, but unreasonable assimilation with their radical redefinition of the term “sex” and the policy implications that come with that change. Throughout this whole process, I have asked numerous people what is wrong with HB2 as a bill, and I have not received one good answer to that question. The only answer I get is that it is bad for the economy, a point that all empirical evidence easily refutes as false especially when NC is compared with the rest of the nation. What is clear to me and hopefully to you, is that HB2 does not fit the agenda being forced upon us by outside entities. The narrative being pushed in the media is perpetuated by their desire to help accomplish this agenda.
I respect each of you and appreciate your commitment to serving the public and having to deal with such controversial issues. I appreciate your considering my thoughts on this issue and I encourage you to allow HB2 to remain the law in North Carolina.