Major companies in North Carolina and across the nation have been quoted over the last 24 hours "taking a stand" against that state's instantly-infamous House Bill 2, which strikes down already-enacted legal protections for LGBT persons in Charlotte and nine other municipalities and prohibits the passage of any new anti-discrimination measures in the state. The law was signed late Wednesday night by Republican Gov. Pat McCrory.
And indeed, a passel of big businesses have issued statements reaffirming their "commitment to nondiscrimination." Those words from
We ... do not yet know what impact [HR 2] will have on our ability to successfully host the 2017
All-Star Gamein Charlotte. NBAstatement on North Carolina's anti-LGBT law
Yet up to now, something important is missing from all these statements: concrete actions in response to the law. The closest that any business entity has come so far is a statement from the National Basketball Association hinting at the relocation of its 2017 All-Star Game from Charlotte. But the NBA didn't walk the last mile: its statement said merely that it does "not yet know what impact [the law] will have on our ability to successfully host" the game in Charlotte.
It's only fair to acknowledge that the opposition to the North Carolina law is in its infancy, as the law itself was pushed through a special session of the state legislature and onto the governor's desk at warp speed. As we write, it's only 48 hours old.
The measure was passed to stave off a Charlotte ordinance that was to go into effect April 1, adding sexual orientation and gender identity to the anti-discrimination protections already existing under city law. The flash point for conservatives was a provision allowing transgender people to use public restrooms based on their gender identity. That was the focus of McCrory's signing statement, in which he declared that "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 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."
The secrecy and haste of the enactment, however, underscores the bill's discriminatory intent. That's what could make it unconstitutional, while exposing the state to the loss of more than $4.5 billion in federal Title IX education funding, which prohibits discrimination in educational facilities or programs. The government has stated explicitly that the prohibition extends to "discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity."
As we observed in connection with the similar dead-of-night enactment of a discriminatory anti-LGBT law in Indiana almost exactly a year ago, "If you're signing a law in a private ceremony with no media coverage, it might be a bad law." (H/T to the Chicago Tribune's Rex Huppke.)
Indiana's law was one of those "religious freedom" measures that allowed commercial establishments to deny service to customers based on the proprietors' religious scruples. But the life cycle of that law carries some lessons for opponents of the North Carolina act.
The reaction in Indiana was swift and specific. The CEOs of nine companies with a significant Indiana presence, including Indianapolis-headquartered Anthem and Eli Lilly & Co., wrote Gov. Mike Pence and legislative leaders directly, urging them to "take immediate action" to ensure that Indiana law can't be used to discriminate "based upon sexual orientation or gender identity." Salesforce.com and Angie's List took concrete steps to reduce their investments in the state, the governors of Connecticut and Washington and mayor of San Francisco barred official travel to Indiana, and at least two convention sponsors indicated they'll be taking their business elsewhere. The California Endowment, a $3.5-billion institutional investor, wrote to the CEOs of Lilly and Anthem warning that it would consider disinvesting from them and other Indiana companies if the measure stood. In short order, Pence and the legislature amended the bill to weaken its discriminatory potential.
But the response to the Indiana bill also highlighted the dilemmas for businesses and organizations dealing with discriminatory legislation. Instantaneous response often isn't possible, and there's a fine line between punishing the politicians who act out of bigotry, and punishing innocent workers. Salesforce.com canceled travel to Indiana, but there wasn't much it could do for its Indiana-based workers, many of whom wouldn't be willing or able to move.
That's certainly the case for Bank of America's headquarters in Charlotte, and for Facebook, which has been spending $450 million to build a vast data center in Forest City, N.C. Our request for specifics of BofA's response to the North Carolina law yielded only a bland, press release-ready statement asserting that it "has been steadfast in our commitment to nondiscrimination and in our support for LGBT employees through progressive workplace policies and practices. We support public policies that support non discrimination." What major corporation would say anything different?
The same goes for PayPal, which only last week announced that it would locate a new operations center in Charlotte, which beat out sites in Arizona and Florida for the project. The project means $3.6 million in investment (net of a $3.7-million local tax incentive), and 400 jobs paying an average of more than $50,000. Yet the center isn't scheduled to open until October. If PayPal announced that it was considering cancelling the project, it's likely that the governor and legislature would sit up and take notice. PayPal, asked about its plans for the center, responded by email with a Twitter-style statement that its "commitment to upholding inclusion and the equality of members of the LGBT community is part of our company's core values" and that it's "disappointed by the bill." When we sought specifics about the Charlotte project, the company didn't respond at all.
Businesses in and outside of North Carolina can surely say more. BofA could state that it's putting a hold on corporate conferences or moving them all to other locations; that would put a crimp in local hotel revenues. The NBA could state outright that the Charlotte All-Star Game is off unless the bill is repealed, instead of pussyfooting around. Apple could say that its five North Carolina stores are the limit of its investment. Corporations around the country are being pursued by industrial development officials in North Carolina communities and the state, brandishing tax abatements; it would mean much if some of them stated, for the record, that North Carolina is off their list until and unless HB 2 is repealed. Real money would be at stake, and in politics money is the only language that speaks louder than bigotry.
North Carolina might have to kiss goodbye the prospects of attracting a corporation with a good public record on gay rights, such as a technology or entertainment firm, but such foregone opportunities won't mean much unless the law is specifically cited as a factor. That's beginning to happen in Georgia, where another "religious freedom" law allowing discrimination against same-sex couples was passed last week and awaits the signature of Republican Gov.
That's sure to leave a mark, given Georgia's ambitions to create a Hollywood East with the help of tax credits for filming. Typically, the rest of the studios so far have remained silent, some referring inquiring reporters to a statement from the Motion Picture Assn. of America, their trade organization, which says only that “we are confident that Governor Deal will not allow a discriminatory bill to become law in Georgia." The MPAA will have to speak louder than that if its position is to have any effect on Deal.
As for the collateral victims of boycotts in places like North Carolina -- the residents whose employment prospects are lost or limited because of this law -- they deserve sympathy. But politics is a collective endeavor. Pat McCrory won election as governor in 2012 with 55% of the vote and is up for reelection this year. The hard-right Republican state legislature is a creation of the North Carolina electorate, and voters have the right and the obligation to let their views become known. If they approve of a law that drives businesses and jobs out of the state, it's their choice. If those businesses do more than pay lip service to nondiscrimination, which is all they've done thus far, that will remind the voters that choices have consequences.