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Gov. Cooper ready to restart HB2 battle with legislature

RALEIGH — House Bill 2 is back in the headlines thanks to a surprise move by Gov. Roy Cooper.

Cooper wants to resolve a lawsuit brought by the ACLU and LGBT groups that challenges the HB2 replacement law that Cooper signed in March.

The result of a compromise between Cooper and legislative leaders, the law repeals the requirement that people visiting government facilities must use the bathroom that matches the gender on their birth certificate. Until 2020, it bans local governments from passing nondiscrimination ordinances similar to the one in Charlotte that sparked the whole controversy.

The new law creates a sort of “don’t ask, don’t tell” system for restrooms — nothing explicitly prevents transgender people from using the bathroom that matches their gender identity, but nothing in state law tells them they can. The ACLU says that’s discriminatory, but it’s willing to drop the lawsuit if a judge signs off on a deal the plaintiffs reached with the Cooper administration.

That deal would make it clear that “transgender people are not prevented from the use of public facilities in accordance with their gender identity” — but only in restroom facilities controlled by state agencies controlled by the governor’s administration. So you’d have a transgender-friendly restroom policy in state museums and highway rest stops. But there would be no policy, for example, at the State Fairgrounds controlled by Agriculture Commissioner Steve Troxler.

It’s far from an ideal solution for the LGBT advocacy groups that want to see these restroom policies everywhere. And Cooper’s proposed deal has angered legislative Republicans, who are also parties to the lawsuit and don’t support the compromise. They’ve accused the governor of breaking the deal reached in March, and it’s hard to see how Cooper’s proposed policy wouldn’t violate the law he signed. That law is clear that only the state legislature can set bathroom access policies for government facilities, not individual agencies.

So why’s Cooper doing this? “For too many reasons, it is not in our state’s best interest to remain in drawn-out court battles that still linger because of HB2,” he said in a recent news release.

I can’t help but think timing is an issue too. The last thing Cooper wants is to have the restroom issue litigated in open court next year as he tries to rally Democrats to the polls to break Republicans’ veto-proof majority in the legislature. Cooper’s HB2 compromise bitterly divided Democrats, many of whom thought he was caving in to discrimination. That anger toward Cooper appears to have died down, but it could easily flare up again at a crucial time for Democratic Party unity.

Still, Cooper’s taking a gamble here. The GOP-controlled legislature could easily return to Raleigh and reinstate House Bill 2 in its original form. That would put North Carolina back in the center of the culture wars, and boycotts and other economic damage would crank up again. The governor appears to be betting that the legislature isn’t eager to fight that battle again.

Colin Campbell is editor of the Insider State Government News Service.

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