More than a year has passed since North Carolina repealed controversial House Bill 2 and replaced it with a new law that does not dictate which bathrooms transgender people must use in state buildings.
Then in October, Gov. Roy Cooper announced that transgender people could use public bathrooms that correspond with their gender identity if the facilities are under control of the executive branch. The announcement was part of a proposed settlement of a lawsuit borne out of a challenge to HB2.
That settlement proposal and new arguments over the law that replaced HB2 — House Bill 142 — will be taken up in a federal courtroom on Monday, including new questions about a New Hanover County second-grader and prohibitions against her restroom use in school.
U.S. District Judge Thomas Schroeder will preside over the new legal battles simmering over the 7-month-old settlement proposal.
North Carolina lawmakers have argued that the original plaintiffs don’t have standing in the case after the repeal of HB2, and they question whether the court has the authority to enter the consent decree negotiated by Cooper.
HB2 had required people in government facilities to use bathrooms matching the gender on their birth certificates, and it blocked a Charlotte ordinance that added anti-discrimination protections for LGBT people.
House Bill 142 created a moratorium on local nondiscrimination ordinances through Dec. 1, 2020. And it left regulation of bathrooms, showers and changing facilities to state lawmakers, not the universities, community colleges, local school systems and other state agencies that had been setting their own policies.
Lawmakers contend HB 142 no longer regulates the original challengers of HB2 — a transgender man who works at UNC-Chapel Hill, a lesbian law professor at N.C. Central University, a transgender man who was a student at UNC-Greensboro, a transgender teenage girl who was a student at the UNC School of the Arts and a lesbian couple in Charlotte.
The replacement law is directed at state agencies and local governments, lawmakers contend, and any contentions by the LGBT community of harm and discrimination are speculative.
“Even if they come to pass, the time, place, factual circumstances, applicable trespass or other legal rules, and private and government actors involved — all are unknown,” said Kyle Duncan, a Washington-based attorney representing Senate leader Phil Berger, a Rockingham County Republican, and House Speaker Tim Moore, a Cleveland County Republican.
But when the replacement law was adopted, LGBT advocates argued that it left transgender people in North Carolina without discrimination protections after HB2 put them in the middle of a contentious and high-profile political debate that was monitored across the United States and abroad.
As that debate roared, companies that had been looking at bringing jobs to North Carolina abandoned those plans, and the NBA, NCAA and Atlantic Coast Conference threatened to move their major sporting events to other states.
Though the replacement law stemmed some of those impacts, it fell short of satisfactory for Quinton Harper, a 32-year-old community organizer in Carrboro and advocate for people living with HIV.
Harper decided last year to join the lawsuit that will be discussed in court on Monday because he thinks HB 142 keeps a distressing environment in place.
“North Carolina is sending a message to LGBT people like me that we are not welcome here, that we are not deserving of protection from discrimination, and that we are not equally valued members of our communities,” Harper said in a statement last year when the ACLU amended the lawsuit to reflect the repeal of HB2 and the change in the executive branch from Republican Gov. Pat McCrory to Cooper, a Democrat.
Supporters of HB2 and rules surrounding bathroom use in state and government buildings characterize them as necessary to protect privacy in restrooms, locker rooms and showers, particularly at public schools.
They argue that children should be protected from confronting a person of the opposite sex in such situations.
Issues in a New Hanover County school
In court documents filed with the lawsuit this month, the ACLU, one of the groups representing the challengers, brought a new voice into the debate.
A New Hanover County mother and member of the ACLU of North Carolina contacted the organization in January 2018 with concerns about what her second-grader was experiencing in the New Hanover County school district.
The woman's daughter is transgender, has been diagnosed with gender dysphoria and, as part of her treatment, has been advised to live as a female in all aspects of her life, according to the ACLU request to amend the lawsuit to include the second-grader.
“Despite having a letter from her daughter’s treating clinician indicating that her daughter should be allowed to live in accordance with her gender identity, the school bars (the woman's) daughter from using the girls’ restroom because she is transgender,” Chris Brook, legal director of the ACLU of North Carolina, and attorneys from Lambda Legal stated in that court document.
The school told the child she could use the nurse’s restroom or the restroom in the teachers' lounge, according to the court filing.
“She uses neither, because she feels humiliated and singled out as different for being the only student forced to use those restrooms,” the filing states. “When she has used the boys’ restroom, she has been confronted by other students who told her she was not supposed to be there.”
The second-grader asked to be allowed to use the girls’ restroom after the experience but was told that officials’ interpretation of HB 142 meant it was illegal for them to let her use those facilities.
“She continues to use the boys’ restroom while at school, exposing her to hostility, anxiety and humiliation,” Brooks and the other attorneys said.
The woman has noticed that her daughter avoids using any restroom during the day, which can lead to a rush to get home and occasionally accidents in the car.