The NCAA Flip Flop On HB2

In March 2016, the North Carolina state legislature passed the Public Facilities Privacy & Security Act, known by its shorthand, HB2.

This law is known as the Bathroom Law because, among other things, it discriminates against transgender people and forces them into unsafe situations by requiring them to use the bathroom in many public buildings corresponding to their gender at birth, as opposed to their current identity.

This bill was not limited to transgender people, however, and other provisions of HB2 are equally troubling.

For example, HB2 also prevents municipalities in North Carolina from enacting anti-discrimination policies, setting a local minimum wage, regulating child labor, or making certain regulations for city workers. In other words, the law excludes gender identity and sexual orientation from statewide anti-discrimination protections for the next three years, which led to HB2 in the first place. HB2 also changes the definition of sex in the state’s anti-discrimination law to “the physical condition of being male or female, which is stated on a person’s birth certificate.”

HB2, hastily written, became a law in under 12 hours. It provided no penalties or guidance, perhaps due to its rushed enactment, with respect to enforcement. Unsurprisingly, North Carolina experienced significant pressure to repeal HB2 from residents and non-residents alike. The ACLU has sued the former and now current governors, arguing that HB2 violates the Equal Protection and Due Process clauses of the United States Constitution. LGBTQIA groups provide countless examples of how this bill is discriminatory in practice: A hotel could refuse to rent a room to a gay couple or a restaurant could refuse to serve a lesbian merely because of who they are.

Conservative estimates have North Carolina losing billions of dollars in revenue over the next decade as entertainers, sports organizations and corporations make the decision not to hold events, retain office space or create jobs in the state. Bruce Springsteen, Michael Moore and PayPal are just a few who refuse to do significant or any business in the state. Further, cities and states throughout the nation have banned taxpayer-funded visits to North Carolina because of HB2. Most notably, the NCAA stated that North Carolina would lose college championship game bids for the next five years if it didnt repeal HB2 because it defies its initiative for inclusion. The statement read in part:

Last year, the NCAA Board of Governors relocated NCAA championships scheduled in North Carolina because of the cumulative impact HB2 had on local communities ability to assure a safe, healthy, discrimination free atmosphere for all those watching and participating in our events. Absent any change in the law, our position remains the same regarding hosting current or future events in the state. As the state knows, next week our various sports committees will begin making championships site selections for 2018-2022 based upon bids received from across the country. Once the sites are selected by the committee, those decisions are final and an announcement of all sites will be made on April 18.

Just days before the NCAA-imposed deadline, the North Carolina state legislature came up with an alternative bill, HB142, which was reluctantly signed into law by Governor Cooper, who had been pushing for full repeal. This bill repeals the portion about transgender people using the bathroom with which they feel comfortable, which some have called smoke and mirrors as it still leaves in place most of the other discriminatory provisions of the bill, leaving the door open for future exploitation.

The NCAA released a statement today effectively saying that North Carolina will now be eligible for consideration for championship games. The statement reads, in part:

While the new law meets the minimal NCAA requirements, the board remains concerned that some may perceive North Carolinas moratorium against affording opportunities for communities to extend basic civil rights as a signal that discriminatory behavior is permitted and acceptable, which is inconsistent with the NCAA Bylaws.

The concern is that because HB142 is not a full repeal of HB2, organizations like the NCAA and others may not understand that the new bill does not go far enough to outlaw discrimination based on sexual orientation. The married gay couple still may not be able to get a hotel room. North Carolina workers still may be without a living wage increase for the next three years. In other words, HB142 does not provide the safe, healthy, discrimination free atmosphere that the NCAA stated it would require.  This appears to be a bandage applied by the North Carolina state legislature to appease the NCAA, but simultaneously still remains as a real threat to the civil liberties of both North Carolina residents and its visitors.   

It remains to be seen whether the NCAA will award any championship games to North Carolina. Decisions will be announced on April 18.

But because the NCAA has previously indicated that its decisions will be final, lets hope that they are operating with full information when those decisions are made.

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