The Public Facilities Privacy and Security Act and the Future of NC Education

By: Emily Davis

The North Carolina General Assembly passed House Bill 2 late last month in a specially convened session, which ended with Governor Pat McCrory signing the bill into law that same night. This shockingly swift government action was spurred by right-wing outrage over a Charlotte city ordinance passed earlier in February extending LGBT rights within the city.  

Officially titled the Public Facilities Privacy and Security Act, HB2 enforces North Carolina’s anti-discrimination laws, and retroactively nullifies any local ordinances extending LGBT protections beyond the state’s guidelines. The most notable aspect of the law, which inspired its’ nickname as “bathroom bill”, dictates that all people must use publicly owned bathroom and locker room facilities according to their assigned gender on their birth certificate. Proponents of the law assert its necessity in combating what some perceive as a government overreach by Charlotte. They also cite the need for the safety of citizens, particularly children, in public facilities.

The law received almost immediate nationwide backlash. Protests were held in downtown Raleigh with the LGBTQ community expressing unified dissent against the governor and state legislature. Celebrities such as director Rob Riener and Bruce Springsteen both condemned the law, with Riener calling for a boycott on filming in the state, and the latter rock star cancelling his Greensboro show scheduled for April 10th. In a released statement, Springsteen said “To my mind, [HB2 is] an attempt by people who cannot stand the progress our country has made in recognizing the human rights of all of our citizens to overturn that progress. Right now, there are many groups, businesses, and individuals in North Carolina working to oppose and overcome these negative developments.”

National businesses have also spoken out against the law. ESPN has considered moving their Summer X Games out of the state, stating, “At ESPN, we embrace diversity and inclusion.” The MBA, too, has threatened to withdraw their All Star game scheduled to take place in Charlotte in 2017. Paypal has withdrawn their plans for expansion in Charlotte, while both American airlines and Facebook have spoken out in opposition as well.

One feature of the law ensured that local governments could not expand protections for employment to people on the basis of their sexuial orientation or gender identity, meaning that a worker could not attempt to sue their former employer if they suspect that they were fired on the grounds of their gender or sexual identity. In response to public backlash, McCrory recently signed Executive Order 93, which asks the General Assembly to vote on a reversal of this portion of the law. In a video to citizens the governor explained his decision, “Simply put, I have listened to the people of North Carolina, and the people of North Carolina are entitled to both privacy and equality. We can and we must achieve both of these goals”. The order, although maintaining the laws on gender specific facilities usage, affirms the freedom of the private sector to establish its own policies, and once more allows employees to sue on grounds of discrimination.

An additional aspect of the HB2 controversy is its affect on North Carolina public education. Title IX, first created in 1972 under a portion of the United States Educational Amendments, states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” As of 2014, the law included the fair treatment of transgender students. Now, the status of 4.5 billion in federal education funding via Title IX may be at risk. Democratic legislators and the ACLU both argue that the contradiction between Title IX and the new state law jeopardizes  the funds, which not only go toward student loans and Pell Grants, but also public school programs which help homeless students, rural schools, and adult literacy.

Republicans are arguing the contrary, despite the recent 4th Circuit Court of Appeals decision in a similar situation in Virginia. In Eastern Virginia a federal judge ruled that a school district was not in violation of Title IX by refusing a transgender teen’s access to a bathroom assigned to the gender with which they identified. The ACLU appealed the case to the 4th Circuit Court, which ruled in favor of the transgender teen. As the 4th Circuit Court of Appeals presides over North Carolina, LGBTQ advocates say that the law’s enforcement in public school facilities is in clear violation of Title IX. McCrory and his fellow republicans, however, maintain the unlikelihood that billions in funding could be lost as a result of the law, but the governor did state on Tuesday that he would reevaluate the ruling’s effect on the law. McCrory’s opponent in the November election, State Attorney General Roy Cooper, has refused to defend North Carolina in any lawsuit against it, citing this potential loss of funding. At this point, it is very apparent that a case may very well be brought to the state by opponents of HB2, taking the Virginia ruling to a North Carolina federal judge.