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'HB2 is set': Professors say the controversial law is here to stay, even with new governor

Despite backlash since its introduction in March, North Carolina’s House Bill 2 is here to stay unless a Supreme Court decision repeals the bathroom provision of the law.

The bill’s most controversial provision restricts people to using the bathroom correlated to their gender from birth. Tuesday’s election cemented Republican control of the North Carolina General Assembly, and professors noted that even if Roy Cooper wins the gubernatorial election, chances of HB2 being repealed are low.

“HB2 is set. Even if [Roy] Cooper wins, there will be no change. The legislature is still strongly Republican," wrote Michael Munger, professor of political science, in an email. "This is a non-issue.”

Where HB2 currently stands

Although Cooper has pledged to repeal HB2 if elected governor, any proposal he issued would never pass due to the Republican legislature, John Aldrich, Pfizer-Pratt University professor of political science, explained.

“The problem is that the legislature has a veto override,” he said. “The governor has weaker formal powers in North Carolina than most states.”

Aldrich added that if incumbent Gov. Pat McCrory is reelected, HB2 "is not going to change or it’s only going to change a tiny bit.”

In September, United States District Judge Thomas Schroeder issued an injunction against the law's bathroom-related portions being enforced at the University of North Carolina. A full trial on the law's constitutionality is scheduled in May, after having been delayed. Schroeder based his decision largely on an April federal injunction—in which the United States Court of Appeals for the Fourth Circuit ruled that a transgender student in Virginia could use the bathroom that matched his gender identity.

The Supreme Court has accepted the Virginia case, and Aldrich said the future of HB2 depends on what happens in that court. 

When the Virginia case reaches the Supreme Court, Aldrich speculated that the decision would stand, noting that this decision will have implications for the law in North Carolina. If the Supreme Court allows that injunction to stand, either because the court split or because it affirmed the ruling, HB2's bathroom provision would "almost certainly" be terminated. That does not necessarily mean the entire law will be struck down, however, he said. 

“It’s a holding action for old-fashioned values," he said. "A little bit like the last vestiges of Jim Crow laws."

Social implications

Aldrich noted that moving forward, the social impact of HB2 would exceed economic consequences.

“The economics is real. There’s real money involved, but it’s not a huge hit to the state," Aldrich said. "But it gives them a black eye and provides just enough substance to those who care about the issue as a matter of social justice.”

Senior Steven Soto, president of Blue Devils United, described his apprehension for the future of LBGTQ+ rights because he said HB2 prevents people from being their "full self."

“When you’re not being able to be your full self, that means that’s going to translate into academics, into your extracurriculars, into your space just to be a student," he said. "If you have to leave a part of yourself behind or you can’t express yourself, it’s going to harm you.”

Blue Devils United has worked to encourage Duke to oppose HB2 more strongly and to provide gender neutral bathrooms on campus in accessible places.

“By having gender neutral bathrooms and inclusive bathrooms on campus, [it] allows students to be their whole self,” Soto said.

Moving forward

Regardless of the Supreme Court decision, Munger predicted that HB2 will not be a large issue moving forward.

“Given Trump's election, HB2 will be largely forgotten," Munger wrote. "It is a small issue, in terms of economics. And the legislature is not going to consider it.”

Trump's victory also concerned Soto, who speculated about a possible federal version of HB2.

Aldrich noted that HB2 will fade, especially if it is ruled unconstitutional.

“Even if [HB2] survives, it has a finite, and I’m guessing, a fairly short lifetime," Aldrich said. "In two years or four years, it will go either by the Supreme Court or election of a Democratic legislature.”


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