Commentary

Under-reported loophole in HB2 “compromise” would establish huge, dangerous precedent for civil rights laws

Most of the debate thus far over proposed HB2 “compromise” legislation has centered around the section that would allow opponents of equality to demand local referenda on any human rights ordinances that cities might enact. There is good reason for this. As Gov. Cooper rightfully noted yesterday:

“First, [such a provision] subjects the rights of the minority to a vote of the majority. It would be like putting the Civil Rights Act to a popular vote in cities in the South during the 1960s. Except today, it would come with the perils of modern campaigns…. Imagine the endless campaigning—months of one side demonizing the other about whether LGBT citizens have rights. Toxic 30-second TV ads. Nasty mail filling up your mailbox. And North Carolina is still in the national news for all the wrong reasons.”

Unfortunately, as experts over at the American Civil Liberties Union of North Carolina pointed out in an email exchange with NC Policy Watch today, that’s far from the only troubling provision in the proposal. House Bill 186 also includes language (see the top of page 4) that would exempt all charitable and religious organizations from any nondiscrimination ordinances cities might enact. Think about that for a minute.  It’s actually a remarkable loophole that would swallow a vast portion of any possible ordinances. Here’s Mike Meno of the ACLU-NC:

“The proposed law would create a sweeping and dangerous precedent by making North Carolina the first and only state to broadly exempt nonprofits from following local nondiscrimination laws in employment, housing, and public accommodations. The exemptions would apply to both religious institutions and nonreligious 501(c)(3) nonprofits.

The exemptions would apply to all kinds of organizations – nonreligious homeless shelters, domestic violence agencies, and more. Under HB 186, these charities would be able to deny services to LGBT people whose local governments have enacted nondiscrimination protections.

These groups receive a public benefit, in the form of a tax exemption, to serve the public good. They also often receive funding from local and state governments. But HB 186 seeks to give them a license to discriminate against employees, customers, and clients.

HB 186 also exempts religious institutions and city contractors from local nondiscrimination laws. When you combine those exemptions with the one for nonprofits, we’re talking about a huge number of organizations that would be allowed to defy local nondiscrimination policies.”

In other words, we already knew that the tiny slice of HB 186 that’s moderately positive — the provision allowing  cities to enact nondiscrimination ordinances — was badly flawed in that it would promote divisive local referenda on basic human rights. Now, however, upon further review, it turns out the proposal is even worse than many had realized in that, even if they were ever enacted, all local nondiscrimination ordinances would include a loophole big enough to drive a truck through. Add to this the fact that the bill prevents cities from doing anything ever to provide equitable access to restrooms for transgender people and it becomes clear that, however well-intended this bill might be, it’s one heck of a badly-flawed mess.

One Comment


  1. Jennifer A Bremer

    February 28, 2017 at 3:02 pm

    Don’t forget that most schools and universities are 501(c)3s, too.

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