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 fast-food restaurants.
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 wrong people?
“A lot of things have to happen before that fear completely goes away,” McGarry continued, “but this is a step in the right direction.”