Attempting to lay out the case for why transgender people should use the bathroom that aligns with their biological sex, Gov. Pat McCrory’s lawyer lost control of his argument before he’d even begun.
US District Court Judge Thomas Schroeder, who was appointed to the federal bench by President George W. Bush, was trying to understand how HB 2 makes bathrooms, changing rooms and locker rooms safer during a hearing in federal court in Winston-Salem on Monday.
“If a transgender female goes into a women’s public restroom, there’s a risk of public exposure,” argued Butch Bowers, the lawyer for Pat McCrory, who is named as a defendant in the lawsuit in his capacity as governor of North Carolina.
“How can there be public exposure?” an incredulous Judge Schroeder asked. “There are no urinals in a women’s bathroom.”
It went downhill from there as Bowers and two other attorneys for the defendants, representing the state General Assembly and the University of North Carolina, argued against a preliminary injunction that would temporarily block the bathroom provision of HB 2 to prevent irreparable harm to plaintiffs. The ACLU of North Carolina has filed suit against the state, along with a transgender man employed by UNC-Chapel Hill, two transgender students at UNCG and UNC School of the Arts respectively, and three lesbian women. The federal government has filed a separate lawsuit against the state, alleging that HB 2 constitutes a pattern and practice of discrimination and that the law violates the sex discrimination provisions of Title IX. The two lawsuits are expected to be consolidated for a trial scheduled for Nov. 14.
After Bowers’ women’s bathroom scenario fell flat, he tried again with a hypothetical scenario involving military facilities where soldiers are separated by sex, but had to acknowledge that he couldn’t think of a situation where that would apply under the provisions of HB 2, which covers public agencies under the authority of the state of North Carolina.
“A transgender female who dresses as a female, lives life as a female and to all outward appearances is female is now supposed to use a men’s bathroom,” Schroeder mused. “How on earth is that supposed to work?”
Attempting an answer, Bowers responded, “Partially by single-occupancy bathrooms, which admittedly are not available in all instances. And this would be purely speculation on my part: Some transgender individuals will continue to use the bathrooms they always have.”
“They would be violating the law,” Schroeder shot back.
“There’s no enforcement,” Bowers replied.
“Then why have a law?” the judge asked, as barely suppressed laughter erupted from the gallery.
Representing the University of North Carolina, Noel Francisco didn’t defend the law as much as argue that his client should be dropped from the lawsuit.
“I get the impression that you don’t want to be here,” Schroeder needled. “I also get the impression your client doesn’t like this law.”
Taking aim at statements by Joaquín Carcaño, a 28-year-old employee of the Institute for Global Health and Infectious Diseases at UNC-Chapel Hill, along with UNCG student Payton Grey McGarry and Hunter Schafer, a rising junior at the UNC School of the Arts High School in Winston-Salem, that they would be harmed by having HB 2 on the books, Francisco said, “One thing these declarations don’t say is that any administrator has threatened to take any action against them based on using a bathroom consistent with their gender identity.”
Schroeder seemed puzzled by Francisco’s position.
“Why didn’t the university file a one-page response saying, ‘We don’t like the law and go ahead and enforce an injunction?’” he asked.
Paul Smith, a lawyer for the plaintiffs, challenged Francisco’s statement that employees and student have not been harmed.
“As to Mr. Francisco’s contention that there is no irreparable harm, Mr. Carcaño was directed by his supervisor to stop using the bathroom where he worked, and go down the service elevator to use the bathroom with the housekeeping staff. He is stigmatized by having to wait by the elevator in front of his coworkers to go to the bathroom and has stated that he avoids going to the bathroom as much as possible.”
A lawyer at the Washington, DC law firm Jenner & Block, Smith argued the historic Lawrence v. Texas case, resulting in a 2003 ruling by the Supreme Court striking down laws criminalizing sodomy.
Francisco countered that Carcaño’s statement indicated that the plaintiff was told by administrative staff about the location of a single-use bathroom and there’s no reference in the statement to a supervisor ordering him to not use the men’s restroom.
“If that did happen it would not be authorized by the university,” Francisco said.
Smith also cited an email blast from UNCG Chancellor Frank Gilliam acknowledging that HB 2 “has generated and will continue to generate concern and concrete consequences” as evidence of the law’s harm.
Schroeder seemed to question the point of the law if public agencies like the University of North Carolina and Charlotte-Mecklenburg Schools don’t feel obligated to comply with it.
“Presumably your law had some importance because the legislature passed it on an expedited basis,” he told Kyle Duncan, the lawyer for the General Assembly. “But you have important institutions saying, ‘We’re not going to follow it. I haven’t seen any threat letters coming from the state to these institutions.”
When it was the plaintiffs’ turn to make their case, Schroeder asked Smith to explain why separate bathrooms for males and females exist in the first place.
“It goes to a feeling that men and women should be separate except in marriage,” Smith said.
Schroeder asked Smith whether gender-designated bathrooms constitute sex discrimination.
“There’s a distinction,” Smith replied. “There’s not a stigma attached to it. Everyone’s comfortable with that. There’s not a need for heightened scrutiny.”
Schroeder asked Smith to consider whether there might be a case for HB 2 protecting the privacy rights of people who don’t want to be exposed to a transgender person stripping down in the middle of a bathroom.
“I think that would be illegal in any bathroom,” Smith responded. “There’s no purpose in stripping naked in a bathroom.” He added that such behavior would likely be covered by North Carolina’s law against indecent exposure.
“Transgender people are the last ones you need to worry about with that,” Smith continued, “but if they were loitering, harassing people or engaging in predatory behavior in a sensitive area like a locker room, they would be subject to the law just like anyone else. The idea that this law is going to help law enforcement address other problems is simply a fantasy.”
Nathaniel Smith, a lawyer with Pillsbury Winthrop Shaw Pittman law firm in San Diego, Calif. who represented 30 school administrators in a friend-of-the-court brief in support of the plaintiffs, told Schroeder: “There are concerns that are raised and fears that are raised by parents and not by students.
“The transgender students are very discreet about their bodies,” he added. “They’re trying to blend in rather than stand out. The perception of transgender students wanting to expose themselves is very far from the mark.”
Schroeder’s decision is likely to be guided by a ruling made by a divided panel of the Fourth Circuit Court of Appeals in April finding that Gavin Grimm, a transgender high school student in rural Virginia, has the right to use the bathroom of his gender preference. Any appeal of Schroeder’s decision would go to the Fourth Circuit. Duncan, the lawyer assigned to represent the General Assembly, represented defendant Gloucester County in the Fourth Circuit case.
Bowers, McCrory’s lawyer, seemed to hedge his bets, recognizing that the odds are stacked against the state. Bowers requested that any preliminary injunction be “narrowly tailored” to the named plaintiffs in the lawsuit, and to Title IX requirements that school systems receiving federal funds not engage in discrimination. He also asked that it only apply to bathrooms, consistent with the Grimm decision.
“I’m going to endeavor to get you a decision as soon as I can,” Schroeder promised. “I know that school is about to crank up for some unfortunate or fortunate students.”
Lily Carollo contributed reporting for this story.