One of the most telling moments of the federal court hearing on the legality of HB 2 in Winston-Salem on Monday actually came after Judge Thomas Schroeder dismissed court.
The plaintiffs and their lawyers were holding a press conference on the plaza when WRAL Capitol Bureau Chief Laura Leslie broke away from the group to interview Tami Fitzgerald, executive director of the NC Values Coalition. Fitzgerald was a key player in the 2012 campaign to pass the marriage amendment, which was eventually struck down by the Fourth Circuit Court of Appeals — a court that is potentially also the graveyard of HB 2.
Several reporters drifted over to get Fitzgerald’s take on the legal debate, including Lily Carollo, a journalism student at UNC-Chapel Hill who is an intern at Indy Week (our fellow alt-weekly in the Triangle).
Carollo asked Fitzgerald how she thought transgender people who have physically transitioned yet have not updated their birth certificates should handle the bathroom dilemma created by HB 2.
“I think the law offers them the opportunity to update their birth certificate once they have sex-reassignment surgery,” Fitzgerald said.
Carollo quickly personalized the question in a way Fitzgerald might not have anticipated.
“I haven’t had my birth certificate updated, but I don’t have a penis anymore,” she said. “Should I be allowed to use the women’s bathroom?”
“I think you are allowed to apply for a new birth certificate so that you can,” Fitzgerald replied.
“What do I do in the meantime though?” Carollo pressed.
“Well, I think you should go right now today to apply for that,” Fitzgerald said.
“But it takes three months for the birth certificate to come through,” she said. “So what do I do in the meantime if I’m on campus or if I’m in a state building?”
“I don’t know,” Fitzgerald said before recovering her talking point.
“Under HB 2 you should continue and use the bathroom on your birth certificate,” she said.
Paul Garber, a reporter with the Winston-Salem public radio station 88.5 WFDD, picked up the question and took it in a different direction.
“Look, I’m a guy and if a transgender woman wants to use the same bathroom as me, it’s not a big deal to me,” he said. “But what if a very masculine looking person with facial hair who is biologically female comes in the women’s bathroom. How would you feel about it?”
Fitzgerald hesitated, as if wary of a trap.
“You’re asking me a very hypothetical question,” she said.
Reactions from the handful of reporters hovering nearby were immediate and visceral.
“It’s a hypothetical, but entirely predictable situation, given HB 2,” Winston-Salem Journal reporter Michael Hewlett protested.
“And it’s a situation you created,” an unidentified camerawoman seethed. (Fitzgerald is not a lawmaker, but her son-in-law, Chad Barefoot, serves in the Senate.)
After getting Garber to repeat the question, Fitzgerald acknowledged, “Probably there would be some discomfort before there’s a change in the birth certificate.”
Then, back to another talking point.
“I’m more comfortable defending the right of privacy.”