Politics & Government

After HB2 repeal, can transgender people be arrested for using the ‘wrong’ bathroom?

HB2: A timeline for North Carolina’s controversial law

North Carolina repealed HB2 in 2017 but left intact some of its provisions. But with Charlotte’s reputation tainted, the city is still paying to market itself to visitors.
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North Carolina repealed HB2 in 2017 but left intact some of its provisions. But with Charlotte’s reputation tainted, the city is still paying to market itself to visitors.

The year-long battle over House Bill 2 ended in a legal draw for North Carolina’s estimated 44,000 transgender people, who are left with an unanswered question: Can they now be arrested for using the restroom of their gender identity?

Legal experts say it’s possible, if unlikely. The state’s top law enforcement officer, Attorney General Josh Stein, says he’s still reviewing the implications of the repeal.

The question reemerged this week when Charlotte transgender activist Lara Americo told Mother Jones, a progressive magazine, that “transgender people are in even more danger now.”

Campbell University constitutional law specialist Greg Wallace says repeal of HB2 leaves in place several criminal laws that might be used to charge a transgender person using a restroom that doesn’t match the gender on his or her birth certificate.

Arguments could be made for trespass or breaking and entering charges, according to a 2015 UNC School of Government blog post. Less likely, the post said, is that charges could be brought in North Carolina for disorderly conduct, indecent exposure and peeping.

Lesbian, gay, bisexual and transgender advocates said a bill introduced in the N.C. House last week clearly targeted transgender people.

The bill, still in committee, increases the penalties for second-degree trespass in multi-occupancy bathrooms, showers or changing facilities. The bill would make maximum sentences 120 days in jail, up from the 20-day maximum now.

Rep. Chris Malone, a Wake County Republican who cosponsored the bill, told Raleigh’s WTVD that “it wasn’t the intention” to take aim at transgender residents.

“Even under HB2 there was not clarity, since it had no enforcement provisions and no penalties,” Maxine Eichner, who teaches family law at UNC, said by email. It’s possible that someone could be arrested for criminal trespass, she said, but prosecutors would have to prove the person knew they were not supposed to enter the facility.

“Given the repeal of HB2, presumably a police officer could still claim that the person knew that they were not supposed to have entered a restroom if they were not of the designated sex, but it would be harder to make this case,” she said.

Brian Clarke, an employment law specialist at Western Carolina University, said state law is no clearer about which restroom a transgender person should use than it was before HB2 was enacted early last year.

That leaves it possible – if unlikely – that transgender people could be charged with peeping or indecent exposure, he said.

“Regardless, there is NO law on the books in North Carolina following the repeal of HB2 that dictates which restroom anyone must use,” Clarke said by email. “So I guess we are in a bit of a ‘don’t ask, don’t tell’ situation when it comes to bathroom usage.”

Stein, the newly elected attorney general, had “urged a clean repeal of (House Bill 2) to ensure that local governments are able to protect their people from discrimination,” spokeswoman Laura Brewer said.

“AG Stein continues to believe that we must work to protect the rights of all North Carolinians, including those who are transgender.”

Bruce Henderson: 704-358-5051, @bhender