Why Did N.C.'s Anti-LGBT Law Pass While Others Failed?

North Carolina Governor Pat McCrory (Chris Keane / Reuters)
Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

As I reported today, North Carolina passed a law Wednesday that bars cities from passing LGBT non-discrimination ordinances and instituting transgender bathroom accommodation. (The law also strips cities of the right to regulate minimum wages.)

The legislation in North Carolina is not wildly different from bills that have come up in other states. Arkansas and Tennessee both have laws like North Carolina’s, which preempt municipal ordinances on non-discrimination. Several other states have considered preemption bills recently. In South Dakota, the legislature passed a similar ban on transgender bathroom use, but Governor Dennis Daugaard vetoed it. In Georgia, a law protecting opponents of same-sex marriage has stalled out over concerns about business backlash.

What’s notable about the Tar Heel law is that it passed. Why did it have more success?

It isn’t that North Carolina is more conservative than a lot of the other states considering legislation—in fact, although Republicans control the governorship and state legislature, it’s a fairly purple state, and voted for Barack Obama in 2008. The spark for the law passed Wednesday was an ordinance passed in Charlotte, the state’s largest city. The state’s urban centers tend to be fairly liberal.

One obvious difference in North Carolina is speed. Charlotte passed its updated ordinance, banning LGBT discrimination and creating the transgender bathroom accommodation, on February 22. Here in the Old North State, there were almost immediately calls for the legislature to enter a special sessions to block or overturn the the ordinance. But it was unclear whether that would happen. On February 29, Governor Pat McCrory and Senate leader Phil Berger said they thought the legislature should wait to act until April 25, when the regular session began.

Eventually, the general assembly decided to act without McCrory’s urging. But the decision was only made public on Monday, two days before the session. (As a result, some members of the assembly were unable to travel to Raleigh in time.) The legislative language of the bill wasn’t released until minutes before the session actually began Wednesday morning. There was minimal time for public comment built into the session. And by 9 p.m., less than 12 hours after the session began, McCrory signed the bill into law.

Since the Supreme Court’s June 2015 decision made same-sex marriage legal around the nation, there’s been a movement to new battlegrounds, particular non-discrimination measures. States have considered or passed so-called religious-freedom laws, which go to varying lengths to shield business owners, clergy, or private citizens from obligations toward LBGT customers or clients. Many of those laws have ended up foundering or being walked back. In Indiana, business reaction to the Religious Freedom Restoration Act was so harsh that the state passed a second law within days to protect LBGT individuals. Arkansas also toned down its language due to public backlash.

Or take South Dakota. On February 16, the state’s Republican-dominated legislature passed a bill banning transgender bathroom accommodation. It was unclear what Governor Daugaard, also a Republican, would do with the bill, though many observers believed he would sign it. But after meeting with transgender activists—Daugaard had previously said he didn’t believe he’d ever met a transgender person—he vetoed the bill two weeks later.

In North Carolina, by contrast, there was little warning for opposition forces to rally against the preemption law, no time for them to try to meet with the governor, and little time for the business community to speak out. Dow Chemical, the medical company Biogen, and Raleigh-based software company Red Hat all publicly announced they opposed the law. But major corporations like Charlotte-based Bank of America—which has in the past outspokenly criticized anti-gay-marriage laws and touted its record on LGBT rights—did not make a public statement. (I asked B of A for comment about the law but haven’t heard back yet.) There’s a strong grassroots-activist base in North Carolina too, centered around the “Moral Mondays” movement, but there was little time for that bloc to organize either.

The law’s framers may also have made a strategically wise decision in bundling several issues together. Laws barring discrimination against gay people are politically contentious. But there’s still much more public stigma against transgender people. For example, campaigners against an LGBT non-discrimination referendum in Houston last year focused heavily on the transgender-bathroom question to the exclusion of broader non-discrimination, and won a resounding victory. In his statement after signing the law Wednesday night, McCrory focused entirely on the bathroom question, too:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

Of course, the general assembly could have passed a narrowly scoped bill that only overturned the transgender accommodation, but legislators instead chose a broader approach. (The minimum-wage provision, meanwhile, was resurrected from a failed preemption effort in September.)

If these factors help explain why North Carolina’s bill made it into law while others didn’t, it doesn’t necessarily predict what its aftermath might be. The state has a sizable and organized liberal minority, but time and again it has shown it doesn’t have the muscle to stop the Republican legislature and governor. But will promised legal challenges undermine the law? Will major corporations weigh in and press McCrory to reconsider? Finding out will take time—much more than it took to pass the law.