As legal bills for the governor and legislators defending House Bill 2 climb above $176,000, lawyers arguing for and against the controversial law will step into a federal courtroom on Monday to begin a judicial process of great interest to people outside this state.
North Carolina has been an epicenter of the national debate over transgender rights since Charlotte adopted its ordinance barring discrimination against gay, lesbian, bisexual and transgender people and the state responded by adopting HB2 to overturn the city’s ordinance.
On Monday, U.S. District Judge Thomas Schroeder will hold a hearing in federal court in Winston-Salem on a request from the first challengers of HB2 to block the law until they can make their case at trial.
The U.S. Justice Department has made a similar request in a lawsuit that in many ways mirrors the arguments brought by the first challengers – three transgender residents, a lesbian law professor at N.C. Central University and a lesbian couple in Charlotte.
The General Assembly adopted HB2 in an emergency session on March 23 that cost $42,000 to bring lawmakers and their staffs back to Raleigh. Gov. Pat McCrory signed the bill into law hours later.
HB2, which has resulted in entertainment boycotts, businesses canceling expansion plans, late-night TV host jokes and the NBA moving its 2017 All-Star game out of Charlotte, prohibits local governments from adopting anti-discrimination ordinances tougher than state law, which does not extend protections based on sexual orientation or gender identity.
The more widely discussed provision of the “bathroom bill” made North Carolina the first state to ban people from using government-owned restrooms and locker rooms that do not match the gender on their birth certificates.
Critics not only describe the law as a “hate bill” that discriminates against transgender people but also point out that lawmakers did not include any enforcement mechanism.
The plaintiffs in the lawsuit filed by Lambda Legal, a gay rights advocacy group, and the American Civil Liberties Union include:
▪ Joaquin Carcaño, a Latino, transgender man who works at the UNC-Chapel Hill Institute for Global Health and Infectious Disease.
▪ Payton Grey McGarry, a white, transgender man and full-time student at UNC-Greensboro, where he is double-majoring in business administration and accounting.
▪ Angela Gilmore, an African-American lesbian who lives in Durham and works at the N.C. Central University school of law.
▪ Hunter Schafer, a transgender girl at the University of North Carolina School of the Arts High School in Winston-Salem.
▪ Beverly Newell, a real estate agent, and Kelly Trent, 39, a registered nurse, who are a married lesbian couple living in Charlotte.
“This is a case about whether transgender individuals in North Carolina can participate in public life,” the request for injunctive relief states.
The challengers mention a decision in the case of a Virginia transgender teen fighting his school system’s decision to prohibit him from using restrooms and locker rooms that match his gender identity. In the Virginia case, a panel of appellate judges in the 4th U.S. Circuit Court of Appeals said that Title IX, the federal law that protects against gender discrimination, also prohibits discrimination against transgender people as a class.
Though the U.S. Supreme Court has yet to fully address that issue, the challengers of HB2 say the decision has an impact on North Carolina because it’s one of the states in the 4th U.S. Circuit Court district.
Advocates of HB2 have said that the law does not prevent schools and other government-owned properties from making special arrangements for transgender people.
But the challengers contend: “Consigning transgender individuals to separate gender-neutral, single-user restrooms does not mitigate the harm that H.B. 2 inflicts. Those facilities often are not available … and even in situations where they are available, they are not equal to the sex-specific facilities that others use.”
Suggestions that transgender residents can use restrooms that correspond to “their birth-assigned sex” also pose problems, the challengers said.
“That option is no option at all,” the motion to block the law states.
The challengers contended that if transgender men were to use the women’s restroom, they would “face harassment and violence” from those who “correctly perceive” them to be men using facilities designated for women.
In the four months since HB2 was adopted, the governor and lawmakers who support it have described it as “common-sense” law that legislates long-held traditions that public restrooms and locker rooms are segregated by sex.
In their opposition to the request to block the law, attorneys for McCrory questioned whether the challengers had a likelihood for success, a factor that weighs heavily in a judge’s decision to block a law while a legal challenge pends.
“This desire to protect personal privacy constitutes a legitimate governmental interest, and restricting access to such facilities is rationally related to this interest,” attorneys for McCrory said in a court filing related to the case. “The State’s interest, however, does not end with protecting privacy. It extends to personal safety as well. An individual using the restroom, showering, or changing clothes is naturally in a heightened state of vulnerability.”
McCrory and legislators argue that the media and others have mischaracterized what the law does and that the law is a model for public safety.
The challengers introduced a court filing from Aran C. Mull, assistant chief of police for the University of Albany, who had consulted with law enforcement peers across the country.
Some of the law enforcement officers he consulted batted back contentions that HB2 protected the public from predators in public facilities. They agreed with others who say such laws make transgender and gay people even more vulnerable.
“In fact, it is generally transgender people who face a greater risk of violence and harassment in public places, including when they cannot access sex-specific spaces that match their gender identity,” Mull said in his court filing. “As many trainings on LGBT cultural competency for law enforcement (which I also have reviewed as part of my job) emphasize, the LGBT community faces a higher level of harassment and violence generally, and that is particularly true of transgender people. The statistics relayed in those trainings are consistent with my own experience … .
“In summary, there is no evidence that non-discrimination protections have caused any harm in the 18 states, the District of Columbia or well over 200 municipalities that have adopted such protections. To the contrary, the experience of law enforcement indicates that such protections actually enhance public safety,” Mull said.
It is unclear whether Schroeder, a George W. Bush appointee, will make a decision from the bench on Monday. In recent cases, such as the challenge of the 2013 elections law overhaul, Schroeder often has listened to both sides and issued a ruling after pondering the arguments for days or weeks.
Anne Blythe: 919-836-4948, @AnneBlythe1