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HB2 update: Inside the federal courthouse at yesterday’s hearing

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Hunter Schaefer is challenging House Bill 2. (Photo: WRAL.com)

With elbow-length winter-white hair, and wearing black shorts and a sleeveless shirt, Hunter Schaefer looked vaguely Nordic. Her celery-thin legs were jammed into thick-soled, black platform shoes, and, like many girls and boys in their early teens, she seemed coltish.

She knows who she is, at core of her very being,” said her father, Mac, a Presbyterian minister, as they faced a battalion of television cameras outside the federal courthouse in Winston-Salem. “She is my first-born daughter and she is loved beyond her wildest imagination.”

A transwoman, Hunter is one of several LGBTQ people represented by the ACLU [2] and Lambda Legal [3] who are suing state officials on constitutional grounds over House Bill 2. Now the law in North Carolina, the Public Facilities Privacy and Security Act [4] orders government agencies, such as public schools, universities and cities, to ban people from using public bathrooms, locker rooms and showers based on their gender identity. Instead, transgender people — there are roughly 40,000 in North Carolina [5]— must go to the bathroom based on their gender assigned at birth, or as listed on their birth certificate.

The law also fails to protect gays and lesbians against discrimination and bars local governments from taking action to do so.

The defendants are Gov. Pat McCrory, who signed the bill into law the same day it was filed, House Speaker Tim Moore, and Senate President Pro Tem Phil Berger, and the University of North Carolina.

On Monday, U.S. District Court Judge Thomas Schroeder [6], a conservative, heard arguments about whether he should put the law on hiatus until after the trial, set to begin Nov. 14. And over the next three and half hours, the proceedings dealt with the right to privacy, the origin of separate bathrooms, and the exposure of genitalia — all of which distilled to one word: fear.

McCrory and Republican lawmakers have consistently said the law is necessary to protect the privacy and safety of women, in particular, who they say could be preyed upon in the bathroom by men posing as women. However, defense attorneys could not name a single instance in which that has occurred in North Carolina.

And as Paul Smith, an ACLU attorney, pointed out, transwomen are women. And transmen are men. Before HB2 became law, transwomen and transmen routinely used bathrooms that matched their gender identity without incident.

The law was created to send a message of disapproval to transgender people and to Charlotte,” where the city council had passed an anti-discrimination ordinance, Smith told the court. “The law created a problem rather than solved one.”

Schroeder is a conservative who was appointed to the bench by former President George W. Bush. (He also ruled that North Carolina’s Voter ID law was constitutional; the Fourth Circuit Court overturned that decision last Friday.)

However, at times, Schroeder seemed sympathetic to the plaintiffs’ arguments. “It’s unlikely in the modern era,” with bathroom stalls, “that people would be exposed to another person’s genitalia.

And a transgender person’s desire not to be outed, that privacy is also to be considered,” Schroeder added.

In fact, existing laws already prohibit peeping, indecent exposure and invasion of privacy. “The idea that this law would affect those behaviors is fanciful,” Smith said. “It’s an emotional argument. If people are determined to be wrongdoers, House Bill 2 won’t prevent it.”

Corey Stoughton, an attorney with the U.S. Department of Justice — present because future federal education funding for UNC and public schools is at risk over the law — said agencies could install curtains or other barriers to ensure privacy. House Bill 2 doesn’t require that, nor does it mandate that public entities provide single-user bathrooms. But even if the public agencies did, the DOJ argued, that does not immunize the government from a discrimination claim.

For example, plaintiff Joaquin Carcaño, who works at UNC-Greensboro, was told he could take a service elevator to use a single-user bathroom downstairs. “The facilities are not easily accessible, the plaintiffs argued. “Much of the harm comes from exclusion. An accommodation doesn’t erase that.”

As for the defense, Butch Bowers [7], the attorney for Gov. McCrory, seemed unprepared for Schroeder’s questions. Bowers said the law reaffirms the government’s interest in protecting privacy rights in “intimate situations.”

Are you aware of any problems” with transpeople using bathrooms? Schroeder asked.

Not that I’m aware of,” Bowers replied.

The plaintiffs say it doesn’t reaffirm, that privacy is protected by other laws.”

Yes but just because there are laws,” Bowers said, “doesn’t mean we can’t add laws.”

Under the law, a transgender woman whose looks like, and lives as, a woman, but who has not undergone gender-reassignment surgery, would still have male genitalia. She would have to use a men’s room.

How does that work?” Schroeder asked.

I would speculate that some transgender people will continue to use bathroom since there is no enforcement provision in the law.”

Then why have it?” Schroeder said.

The other main contention on Monday was whether UNC should be a defendant. According to attorney Noel Francisco [8], who is representing UNC, the university has no power or desire to enforce the law. Since the law doesn’t regulate private conduct, only the government agencies that operate the bathrooms, transgender students would not violate the honor code by using a facility that corresponds with their gender identity.

But Stoughton of the DOJ said even if UNC System President Margaret Spelling makes an official and clear pronouncement that she will not enforce the law, UNC should remain a defendant. “At any time they could reverse course when we walk away,” Stoughton said.

Since schools start the fall semester this month, Schroeder said he would rule “as quickly as possible,” but did not provide a firm date.

Outside, after the hearing, Tami Fitzgerald of the NC Family Values Coalition, which supports the law, said that without it, the state will become a target” for sexual predators.

She brushed off the fact that the law can’t feasibly be enforced. “That doesn’t mean it’s not a good law.”

Fitzgerald — whose son-in-law is Republican Senator Chad Barefoot — also dismissed the consequences of a masculine-looking transman entering a woman’s bathroom as legally required. “I don’t know. That’s hypothetical. There would be some discomfort until they changed their birth certificate.”

Standing with his daughter, Hunter, the Rev. Schaefer denounced the fear mongering behind the bill. “Rarely is fear a good motivator,” he said. “If we share human stories there isn’t room for fear.”