For some of us, HB 2 might feel like
a hazy memory.
Stricken by the prospect of a domino
effect on progressive cities enacting legal protections against discrimination,
Republican lawmakers sprung into action in March 2016, with Gov. Pat McCrory’s
signature pen at the ready, to pass legislation requiring trans people to use
the bathroom corresponding to the gender on their birth certificate. North
Carolina’s shame triggered boycotts, canceled concerts and scuttled corporate
expansions. In the face of such intense condemnation, even Indiana, led by
then-Gov. Mike Pence, reconsidered plans to enact a similar law, and PayPal,
whose CEO Peter Thiel backed presidential candidate Donald Trump, halted plans
to expand in Charlotte.
Then came the 2016 election, and the
ratification by electoral mandate of multiple affronts — against Muslims and
immigrants, reproductive rights and women’s bodies, climate science and the
environment, worker’s rights. North Carolina’s shame became the nation’s shame.
Assaults on trans rights became subsumed by a multi-front siege. And the
backlash against HB 2 exacted a political cost on McCrory, who narrowly lost his
2016 reelection bid to HB 2 critic Roy Cooper.
Of course, trans people didn’t
forget, and they kept fighting.
Payton McGarry was a sophomore at
UNCG when HB 2 was signed into law. McGarry, Joaquín Carcaño and Angela
Gilmore, alongside the ACLU of North Carolina and Equality North Carolina,
filed suit against McCrory to overturn the law five days after it was enacted.
“It was honestly really hard,”
McGarry told me. “UNCG sent out this list of unisex bathrooms…. Almost every
bathroom on that list — I think they were really trying to help trans students
— but every bathroom was in a private building you had to have a key to, or a
single-stall bathroom that was in a cleaning closet and was locked all the
time. It was really impactful. I couldn’t use the bathrooms that I’d been using
for the past two years.”
McGarry said he developed several
urinary tract infections during the first year HB 2 was enacted as a result of
holding his bladder.
HB 142, the compromise hammered out
by Republican lawmakers and the new Democratic governor in March 2017,
partially rectified the damage wrought by HB 2 by stipulating that various
state agencies, including the UNC System and NC Community College System, may
not regulate access to public restrooms, but it wound up being more confusing
than anything else, McGarry said. (Disclosure: McGarry is employed as the
administrative assistant at my church, St. Mary’s House.)
While the lawsuit was pending,
McGarry said, he and other plaintiffs could use public restrooms consistent
with their gender identities at UNCG and other state facilities, “but that
protection did not extend to other people across the state.”
A consent decree signed by US
District Court Judge Thomas Schroeder on Monday removes any doubt about whether
trans people are allowed to use the bathrooms of their choosing in state
facilities, although it does not cover privately-owned establishments like
The agreement between the plaintiffs and Gov. Cooper, along with Attorney General Josh Stein and three state department heads, states that “the executive branch defendants, in their official capacities, and all successors, officers, and employees are hereby permanently enjoined from applying Section 2 of HB 142 to bar, prohibit, block, deter, or impede any transgender individuals from using public facilities under any executive branch defendant’s control or supervision, in accordance with the transgender individual’s gender identity.” The consent decree goes on to say that “the executive branch defendants are enjoined from prosecuting an individual… for using public facilities under the control or supervision of the executive branch, when such otherwise lawful use conforms with the individual’s gender identity.”
While the consent decree signed by Judge Schroeder on Monday protects the rights of trans people in North Carolina public university and community college facilities, it does not cover K-12 public schools. But Mike Meno, communications director for the ACLU of North Carolina, noted that Schroeder previously ruled in August 2016 that HB 2 likely violates Title IX of the Civil Rights Act, which covers public schools. Meno said that part of the case is still pending, and the US Supreme Court is expected to rule soon on the question.
McGarry expressed relief about the
signing of the consent decree.
“Honestly, I was really happy,” he
said. “It’s kind of an agreement from the judicial system and Gov. Cooper that
trans people are allowed to exist. If you can’t use the bathroom, how do you go
to the Fun Fourth Festival? How do you go to the DMV? How do you go to school
if you know you’re going to have to hold your bladder?”
McGarry, who is pursuing a master’s
in peace and conflict studies at UNCG, acknowledged that the consent decree
doesn’t protect him from discrimination in every single facility, but the
shortcomings of the agreement are difficult to disentangle from the overall
experience of not being accorded full civil rights as a trans person and
encountering widespread transphobia.
“We’re still a society where 90
percent of trans people get verbally assaulted in school,” he said. “There’s
always a fear of, What if I’m in the wrong place? What if I run into the
“A lot of things have to happen
before that fear completely goes away,” McGarry continued, “but this is a step
in the right direction.”
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