North Carolina’s Bathroom Ban Compromise Is a Shell Game

The University of North Carolina's Isaiah Hicks takes a shot during an NCAA basketball tournament game against Gonzaga University on April 3, 2017, in Glendale, Arizona.

Anyone who knows anything about me knows that I dearly love my native state. And that I love basketball, especially when it is played at the University of North Carolina. Indeed, as many of us who hail from the state proudly sing: “I’m a Tar Heel born, I’m a Tar Heel bred. And when I die, I’m a Tar Heel dead.”

Lately, however, the news from my home is about to send me to that grave prematurely.

Since an arch-conservative element took over the state government in 2010, North Carolina’s once-progressive reputation—well, progressive in comparison to other Dixieland states—has been tarnished by a series of mossback decisions and laws. Conservative state legislators have attempted to restrict voting rights, waged war against public education, and grabbed power from a newly elected Democratic governor.

Most recently, the state has drawn more than its ample share of negative national attention for the legislature’s efforts to dictate how its residents use public potties. In 2016, a bill pushed by a conservative majority in both chambers of the state legislature and signed into law by outgoing Gov. Pat McCrory (R) required residents to use public toilets that correspond to the sex identified on their birth certificates.

The so-called bathroom ban came on the heels of the Charlotte City Council’s passage of an LGBT anti-discrimination ordinance that prevented city businesses from discriminating against lesbian, gay, bisexual, or transgender customers. In extending protected-class status to the LGBT community, the ordinance explicitly protected access to public facilities, such as bathrooms, in accordance with an individual’s gender identity and gender expression, ensuring that transgender residents in particular were protected under local law.

For some in North Carolina, granting equal rights to LGBT people was more than they could tolerate, prompting the legislature to enact the bathroom ban to prevent cities and towns across the state from treating people as, well, people. The law also permanently barred cities from enacting new laws to advance civil rights or put in place other important reforms, such as increasing the minimum wage.

But, of course, that was only the start of the troubles. A nationwide response to the state’s action came in the form of public ridicule and economic boycotts. The most embarrassing of the boycotts involved sports, notably the NBA pulled its All-Star Game out of Charlotte earlier this year and the NCAA refused to hold any of this year’s basketball tournament games in the state.

In a state that is over-the-top proud of its basketball reputation, the horror of no hoops in March spurred the legislature to revoke the bathroom law. Sort of.

As March Madness drew to a close—and the University of North Carolina Tar Heels advanced and eventually won the men’s national hoops title—the legislature asserted it had reached a compromise in hopes of persuading the NCAA to bring its cavalcade and dollars back to North Carolina. It succeeded in the latter. The NBA said it will consider bringing a future All-Star Game to the state, and the NCAA “reluctantly voted” to consider bringing the games back.

This shell game of repealing the bathroom law and restoring big-ticket sporting events in North Carolina is a sham of the most odious order.

The compromise didn’t fully repeal the bathroom law. It retains many of the problematic features of the original law, including a temporary prohibition on local anti-discrimination measures as they relate to employment or other areas of life. Yet, while it revoked the earlier law’s explicit ban on using the restroom appropriate for one’s gender identity—allowing individuals to use the correct restroom—the new law permanently bars localities from ever advancing protections within these spaces, leaving the door open for the state legislature to meddle in an individual’s most intimate and private matter. Since North Carolina is one of many states without explicit nondiscrimination laws for LGBT people, anyone experiencing discrimination in bathrooms, sadly a not-infrequent occurrence, is left without government protection. This compromise was crafted primarily to meet an arbitrary deadline set by NCAA officials for determining where next year’s tournament games could be played.

“We are actively determining the site selections, and this new law has minimally achieved a situation where we believe NCAA championships may be conducted in a nondiscriminatory environment,” the NCCA Board of Governors said in a statement. “In the end, a majority on the NCAA Board of Governors reluctantly voted to allow consideration of championship bids in North Carolina by our committees that are presently meeting. The NCAA championships previously awarded to North Carolina for 2017-18 will remain in the state.”

Shame on all involved in this Faustian bargain. Nobody enjoys basketball, especially when it’s played in North Carolina, more than I do. But it’s never a close call when the flight of an orange ball coincides with the harm and evil of discrimination. My livelong affection for my home state pales considerably when it uses a basketball game as the bargaining chip to deny fellow North Carolinians their human rights and dignity.

Sam Fulwood III is a Senior Fellow at the Center for American Progress and Director of the CAP Leadership Institute. His work with the Center’s Progress 2050 project examines the impact of policies on the nation when there will be no clear racial or ethnic majority by the year 2050.

Laura Durso, Vice President of the LGBT Research and Communications Project at the Center for American Progress, contributed to this piece.