The Reaction To HB2 Will Go Down As A Fluke Or College Sports' New Standard

Photo Credit: Ronald Martinez/Getty Images
Photo Credit: Ronald Martinez/Getty Images

If the national reaction to North Carolina’s HB2 is meant to serve as the new guiding principle and not a brief moment of political posturing, and if southern states continue to specialize in discriminatory laws disguised as acts encouraging religious freedom, the list of available postseason venues for college sports seems inevitably poised to shrink.


With laws discriminating against the LGBT population sprouting up in state legislatures across the nation, the onus is now on the NCAA, its members, and the remaining states that value anti-discrimination legislation to respond. Over the past year, they’ve done just that—multiple states across the U.S. have passed laws prohibiting public colleges from traveling to states with discriminatory laws, while the NCAA and ACC pulled their annual tournaments from Tobacco Road.

The three bodies of importance here—the NCAA, the schools and conferences, and progressive state legislatures—have taken different approaches based on their jurisdiction. The NCAA and the conferences within it do not dictate where or who their members, public or private, decide to play during the regular season, as these games are hosted on member campuses. When the NCAA and ACC pulled their postseason events from North Carolina, this only included specific neutral location events, not postseason matches determined by seed—so if, say, the UNC women’s soccer team was the top seed in the conference, it would still be allowed to host an ACC tournament game like any other team.

As of now, only neutral location postseason events and regular season non-conference games have been affected by those standing against the recent rash of religious freedom laws. The NCAA and conferences weigh in on their playoff events; member schools and state legislatures take care of nixing regular season games.

For instance, when Albany elected to cancel its early season trip to play the Duke men’s basketball team over North Carolina’s anti-LGBT law, it did so because New York governor Andrew Cuomo mandated as much, not because the NCAA or American East required it. When Vermont cancelled a women’s basketball away game at Chapel Hill, the university was the one calling the shots.

More recently, a California law designed to prevent public money from contributing to states boasting anti-LGBT legislation led to the dissolution of a potential Cal-Kansas home-and-home series, according to a Feb. 3 report from the Lawrence Journal-World.

The law, AB 1887, which passed in 2015 and went into effect on Jan. 1, prohibits state-funded institutions from “supporting or financing discrimination against lesbian, gay, bisexual, and transgender people,” which includes paying for charter flights and hotels for travel to states that encourage LGBTQ discrimination by way of state law. The current list of banned states includes Kansas, Mississippi, North Carolina, and Tennessee, though that list seems likely to grow.


North Carolina was banned for HB2—the “bathroom bill” that also affected minimum wage and anti-discrimination protections at the state level—which lawmakers are still struggling to repeal. Tennessee’s House Bill 1840 allows counselors to reject clients for being gay on the basis of a “sincerely held religious belief”; Mississippi’s House Bill 1523 allows businesses to refuse to serve gay people, single mothers, and anyone else that offends their “sincerely held religious belief.” (HB 1523 was declared unconstitutional by a federal judge; the case is still in litigation.) Kansas nixed a West Coast trip for the Jayhawks and earned its spot on the short list by proposing and passing Senate Bill 175.

Prior to SB 175, no student club or organization would receive recognition or be funded by a public university unless it granted membership to all those looking to join. Senate Bill 175 changed that portion of the law, granting school-sponsored, on-campus religious groups the ability to deny a student membership to said group if that student’s lifestyle—like a homosexual lifestyle—or actions present a conflict with the group’s “sincerely held religious beliefs.”


In a diabolically nifty turn of phrase, the law says public colleges and universities may not “discriminate” against the religious groups (who themselves are attempting to discriminate) if the groups are attempting to do any of the following:

(a) Adhere to the association’s sincerely held religious beliefs;

(b) comply with the association’s sincerely held religious beliefs;

(c) comply with the association’s sincere religious standards of conduct;

or (d) be committed to furthering the association’s religious missions, as such religious beliefs, observance requirements, standards of conduct or missions are defined by the religious student association, or the religion on which the association is based.


While the California ban list currently sits at four, Texas is making a strong push to expand the membership. The state currently boasts a bill making its way through the legislature that falls in line with North Carolina’s infamous HB2—Senate Bill 6 seeks to require Texans to adhere to the bathroom associated with their “biological sex.” The bill has the support of Texas attorney general Ken Paxton and Lieutenant Governor Dan Patrick.

The Big 12 is reportedly keeping tabs on the bill’s progression; the NCAA has not publicly weighed in on it. The silence is reminiscent of its refusal to move the 2016 Final Four despite the fact that Houston voted down an equal rights ordinance in 2015, making it the largest city in America without any protections for the LGBT community. At the time, the NCAA told Outsports it would not move the event, “as it takes years to plan and implement this world-class event.”


SB6 allows both a bit of wiggle room, should they choose to take advantage of it, as the law mandates that private entities renting public spaces are allowed to implement their own bathroom policies. This would allow the NCAA to continue hosting tournament games in the Lone Star State, without directly adhering to the discriminatory law. The next such opportunity will come in 2018, when Dallas hosts a round of the NCAA men’s basketball tournament and Frisco hosts the FCS football title game; Arlington Stadium will also be home of the Big 12 football championship game next year.

The issue now is that the NCAA set a precedent with how it handled North Carolina’s bathroom bill (the Big 12 has set no such precedent.) Ignoring a discriminatory law and simply attempting to operate around or beside it no longer falls in line with the NCAA’s recent actions. The arcane “stick to sports” opinion held by Notre Dame’s Father Jenkins bears no importance; the NCAA is now, by its own decisions, very much the moral arbiter when it comes to deciding where to host its profitable sporting events.


While the Houston case breeds doubt, the NCAA does boast experience in standing up for LGBT rights. In 2015, the NCAA, headquartered in Indianapolis, threatened to take its annual conferences and tournaments elsewhere after former Indiana Governor Mike Pence signed the Religious Freedom Restoration Act into law—as it was initially drafted, the law would have afforded business owners the right to turn away LGBT customers on the basis of their sexuality.


After the NCAA, along with Indiana Pacers and the Indiana Fever, took a public stand in the months preceding the Final Four, Pence shelled out money to a PR firm to fix the state’s image and signed an amendment that prevented businesses from denying LGBT citizens goods or services. On the whole, the move was a regression for the rights of the state’s LGBT community, but the stand from citizens, businesses, and sports leagues helped prevent a major backslide in the Hoosier state.

HB2 received the most national attention of any of the state laws due to the cancellation of several major sporting events—the NBA All-Star Game, ACC football championship, and all NCAA remote postseason events were relocated from the state, with the potential to lose all NCAA events for the next six years now just a couple weeks away from becoming reality.


As millions of potential dollars fled the state, the bill became a major source of political contention over the past 10 months. Understandably, the NCAA threatening to pull March Madness from the state until at least 2022 played a significant role in heightening the tension among the dug-in lawmakers, some of whom in September thought of their actions as nothing more than “political theater.”

With its hard stance on HB2, the NCAA, the ACC, Vermont, and the governments of California and New York drew a visible line in the sand: discriminatory state laws result in games and tournaments being pulled or canceled if said laws aren’t amended or appealed. Now, with similar laws existing or making their way through various state legislatures, we’ll see whether this was a simply a timely PR move or if college athletics’ governing bodies, and the governing bodies of the remaining states, are ready to stand firmly behind that line.