The federal judge who will decide whether House Bill 2 should be suspended while lawsuits make their way through court had pointed questions Monday for attorneys representing Gov. Pat McCrory and legislators at a hearing.
“How does this law make bathrooms and changing facilities safer?” U.S. District Judge Thomas Schroeder asked South Carolina-based attorney Butch Bowers, who represented McCrory at the three-hour hearing.
How is it enforced, Schroeder also asked in many different ways.
“There is no enforcement mechanism of the law,” Bowers told him.
“Then why have it?” Schroeder asked.
For much of Monday morning and the first hour of the afternoon, Schroeder, a George W. Bush appointee, raised question after question for attorneys arguing for and against the four-month-old law, which was adopted to nullify a Charlotte ordinance that expanded non-discrimination protections to gay, lesbian and transgender people.
In addition to prohibiting local governments from adopting anti-discrimination ordinances tougher than state law, state lawmakers banned people in North Carolina from using government-owned restrooms and locker rooms that do not match the gender on their birth certificates.
The General Assembly returned to Raleigh for one day March 23 and adopted HB2 in an emergency session.
Schroeder noted in his questioning of the attorneys Monday that he had no transcripts or evidence that lawmakers had discussed the issue publicly before voting on the bill.
“Was there any kind of hearing on this bill?” Schroeder asked.
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, has put North Carolina at the epicenter of the national debate over transgender rights.
In the courtroom on Monday were three of the North Carolina residents who joined the first of five lawsuits brought over HB2:
▪ Joaquin Carcaño, a transgender man who works at the UNC-Chapel Hill Institute for Global Health and Infectious Disease.
▪ Payton Grey McGarry, a transgender man and full-time student at UNC-Greensboro, where he is double-majoring in business administration and accounting.
▪ Hunter Schafer, a transgender woman at the University of North Carolina School of the Arts High School in Winston-Salem.
The most widely discussed provision of HB2, or “the bathroom bill” as it is commonly called, 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.
Schroeder, who told the lawyers at the close of the hearing that he would try to rule quickly on whether HB2 should be blocked while the lawsuits are pending, posed many questions on how it could work practicably.
At issue, Schroeder told the attorneys, are legal arguments over privacy and discrimination.
“Let me start with a fundamental question, and that is: Why do we have separate bathrooms for men and women?” Schroeder asked Paul Smith, an attorney representing the challengers.
Smith acknowledged that there had been a long tradition of separating public restrooms and changing facilities by gender, but that was not the relevant point in the case, he added.
At issue, Smith argued, is that HB2 singles out transgender people as a group and tells them which restrooms they cannot use.
Additionally, Smith said, transgender people have long been using restrooms that match their gender identity, which does not necessarily match their birth certificates.
Smith, as did an attorney representing school administrators, said most transgender people rarely expose their genitalia in public restrooms and changing rooms.
At schools, gyms and many other government-owned buildings, there are privacy stalls and curtains.
“The status quo was working for transgender people in that they could make these decisions, that they could use common sense,” Smith told Schroeder in response to the judge’s question about privacy concerns and scenarios raised by advocates of the law.
If lawmakers called the emergency session on March 23 simply to overturn the Charlotte ordinance, Schroeder asked, would it not have been enough to enact only the portion of HB2 that prohibits cities, towns and counties from adopting local ordinances stronger than state law?
Schroeder asked attorneys for the governor and lawmakers why existing laws against peeping, indecent exposure, molestation and trespass did not suffice to get at the bathroom provision of the law.
“Why aren’t these sufficient to protect those interests? Or are they?” Schroeder asked.
Schroeder further noted that in North Carolina, where there are an estimated 44,000 transgender people, bathroom use had not been an issue before the Charlotte ordinance and HB2 put it in the national spotlight.
“Was there any problem with that?” Schroeder asked. “I’m not aware of any problem.”
“The problem simply was the overreach of the city of Charlotte,” Bowers said.
Another issue vexing Schroeder was whether to dismiss University of North Carolina officials from the lawsuit.
UNC President Margaret Spellings has said that UNC does not plan to enforce HB2, but attorneys for the challengers, some of whom work or go to UNC schools, described her message as more ambiguous.
Spellings – according to Smith and Corey Stoughton, an attorney for the U.S. Justice Department – was not the ultimate decision-maker on whether HB2 was enforced on campuses.
They argued that students and employees still could find themselves in trouble if they did not use restrooms or changing rooms that aligned with their birth certificates. Some questioned whether they could face honor code troubles for violating state law.
But UNC, which is in a difficult position because it receives state and federal funds, has asked to be dropped from the suit.
Some have estimated that North Carolina could lose $4.8 billion in federal grants and contracts if the U.S. government withheld money because of Title IX violations.
After the hearing Monday, Carcaño and Mac Schafer, a pastor at Hudson Memorial Presbyterian Church in Raleigh, spoke with media gathered outside the courthouse. Schafer is the father of Hunter Schafer.
They hope sharing their stories will give the public a better understanding of the transgender people among them.
“Rarely do I believe that fear is a good motivator,” said Mac Schafer. “As a father and as a Presbyterian minister, I believe fear builds barriers between people and communities. I believe HB2 legislation is constructed on unfounded fear. Our human stories bring us together and help us create relationships. Our shared human stories reduce fear. They help us to grow in our understanding of one another.
“I think if more people took the time to listen to Hunter’s story and the stories of other people up here today, they would see that there really isn’t room for fear or legislation like HB2. They would see human beings who simply want the same rights as everyone else.”