The Washington PostDemocracy Dies in Darkness

North Carolina’s ‘bathroom law’ and the GOP drive to disempower upstart local governments

North Carolina Gov. Pat McCrory (R) makes remarks during an interview at the governor’s mansion in Raleigh, N.C., on Tuesday. (Gerry Broome/AP)

Forget, for the moment, where you stand on the issue of transgender people and bathrooms. Remember, instead, that Republicans say they are the Jeffersonian party of small government and that the government closest to the people best understands what the people want. Yet in North Carolina, and indeed, across the country, Republican-controlled state houses are systematically stripping cities, counties and villages of the power to make their own laws. They have been doing it selectively for some time now, barring ordinances regulating guns, fracking, smoking in bars and restaurants, the minimum wage, discrimination, regulation of plastic bags and now, in North Carolina, bathrooms.

Indeed, take a closer look at HB 2, the controversial North Carolina law better known for overriding Charlotte’s law that said transgender people in the state’s largest city could use bathrooms corresponding with their gender identity. Its short title was “Public Facilities Privacy and Security Act.”

But its long title also described it as “an act … to create statewide consistency in regulation of employment and public accommodations.” Translated, it stripped the state’s local jurisdictions of authority to have their own anti-discrimination laws and gave the state exclusive control over minimum wage rates.

North Carolina's LGBTQ community protests the state's new anti-transgender bathroom law. (Video: Whitney Shefte/The Washington Post)

“The LGBT issues were a Trojan horse,” Erika Wilson, a law professor at the University of North Carolina who co-directs a legal clinic for low-income people, told ProPublica. “People were so caught up in [the LGBT] part of the law that this snuck under the radar.”

And it was signed by a Republican governor, Pat McCrory, who boasted in his official campaign biography of his roots in local government, as mayor of Charlotte, as opposed to “the state government machine” and who, in November, spoke out against what he considered the Obama administration’s overreach on transgender issues.

Should local governments be allowed to decide bathroom policies for their transgender citizens without interference from political higher-ups?” asked the Charlotte Observer in an editorial headlined “McCrory’s hypocrisy in transgender flap.” The editorial added:

Gov. Pat McCrory’s answer to that question apparently changes depending on which local governments we’re talking about, and whether he agrees with their outlook on the controversial topic. 
Back in November, the governor said local schools should decide bathroom rights for transgender students. He spoke out against the Obama administration for joining a legal case aimed at giving boys’ bathroom access to a transgender Virginia student who was born female but identifies as male. 
McCrory wrote a letter to his likely gubernatorial opponent, Attorney General Roy Cooper, demanding that the state’s top legal officer fight this ‘unacceptable and unnecessary’ federal overreach.
Now here we are, just three months later, and the governor is engaging in ‘unacceptable and unnecessary’ state overreach into the city of Charlotte’s debate over anti-discrimination protections for gay, lesbian and transgender citizens.
N.C. governor signs executive order after "bathroom bill" controversy (Video: Office of Governor Pat McCrory)

There’s no legal question about the power of North Carolina, or any state, to override local laws, just as Congress has the power under the Constitution to preempt state laws. Municipalities are the creations of state legislatures and are subject to their will. The question that arose during the special session in March of the North Carolina legislature — and is being asked across the country on a range of laws — was should the state be using that authority in the way it has. On that topic, the justification provided by Republican defenders of the new law was revealing.

Charlotte was portrayed by one of the bill’s chief supporters, Republican Rep. Dan Bishop, not as a government “closest to the people,” but as a city run amok, subject to pressure from interlopers from outside the state. He saw meddlers making an end run around the state legislature, which he described as a “bulwark against invasion of freedom.”

“Here’s a neat trick,” he said these “outsiders” were thinking. “Let’s just go to a city council where you can find a handful of radicals under the influence of people with a lot of money from outside the state. … That is a picture of the subversion of the rule of law” and an “abuse of authority.”

This attitude, coming from Republicans, toward the relatively “small government” of Charlotte was not lost on Democrats during the debate. Charlotte’s mayor ran on the issue of transgender equality, said Democratic Rep. Kelly Alexander as the debate raged on. “Council members ran on this. People knew” what they stood for when they voted for them. Now, he said, we are replacing “the will of the people [of Charlotte] for the will of 160 people most of whom are not from” that area. “There was a time when my [Republican] colleagues would always talk about local control and the importance of local control. That principle, which you used to champion and hold up, is an important principle. …. These are decisions that should be left to local people.”

Listen to the full debate on HB 2 in the North Carolina House.

Increasingly, they are not being left to local people, however. The National Rifle Association, for example, boasts that thanks in part to its lobbying “almost all states today have a law prohibiting local jurisdictions from imposing gun control restrictions that are more severe than state law.”

On March 30, Wisconsin Gov. Scott Walker (R) signed legislation protecting plastic bags from local government laws regulating their use for environmental reasons, as more than 100 communities across the country have done. The new law was part of a national strategy by the plastic industry, with the help of ALEC (the American Legislative Exchange Council) to have “model laws” passed at the state level in order to preempt efforts at the local level.

“No matter where you reside,” ALEC warned on its website in 2014 “a ban or tax could be coming to a neighborhood near you. Remember the evidence, and reject any measure banning plastic bags, which puts jobs at risk and targets a single product and industry.”

ALEC has been described by the New York Times as a “stealth business lobbyist,” a nonprofit with close ties to big business, which through affiliated lawmakers in the states has successfully shepherded through state houses hundreds of “model laws.” ALEC describes itself as “America’s largest nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism.”

Its vast library of “model” policies covers everything from laws on workers compensation to the prohibitions against regulation of nutritional information dissemination, which it wants states to adopt, providing precise drafting language to save state legislators the work. For example, “a municipality may not regulate the dissemination of nutritional information or the content required to be placed on a menu, menu board, or food tag by a restaurant, eating establishment, or other food facility.”

ALEC has been particularly effective in enactment of state laws barring local governments from regulating fracking.

“It’s a growing trend,” Lisa Graves, executive director of the Center for Media and Democracy told NPR’s Fresh Air program, “where we see state legislatures intervening in local actions on a variety of issues, including local measures to increase minimum wage, to provide for paid sick leave for workers, to address fracking — which involves the hydraulic pressure drilling for natural gas in people’s backyards almost literally.”

Republicans in North Carolina argue with the proposition that they have created a “Big Government” that throws around its weight in a manner comparable to the federal government. They see themselves as more judicious in their use of state power, picking and choosing in the interest of ensuring uniformity in commercial activity in some areas but deferring on others, or, as the legislation stated in the “whereas” boilerplate, exercising its duty to make the “laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State” to “improve intrastate commerce.”

Zoning, for example, is an appropriate realm for the exercise of local power, Bishop said during the North Carolina debate. Local “folks know the needs and requirements of zoning questions in ways we couldn’t possibly know.” But bathrooms, he said, were “an overreach of authority,” an “abuse of authority.”

For Republican Rep. Dean Arp, state preemption is a justifiable tool to protect individual rights, in this case, he said during debate in the North Carolina House in March, “bodily privacy.”

Think of it, he said. “Spring is here. Summer’s coming. Emily and Ashante are so excited to go to the pool. They go into the locker room. … They begin to change. In walks a biological male who sits down and begins to disrobe. What just happened? Emily and Ashante just lost their privacy. … Some municipalities have mandated that this will happen over and over again.”

He added: “All North Carolina citizens expect bodily privacy in showers, locker rooms and bathrooms. Make no mistake. This bill ensures all North Carolina citizens the privacy and protections they in fact have.”