House Bill 2 doesn’t include a criminal penalty for people who enter the wrong bathroom, so law enforcement officials said violators would likely face only trespassing charges.
The controversial LGBT law requires people visiting government buildings and facilities to use the bathroom that corresponds with the gender on their birth certificate. That means transgender people who haven’t changed their birth certificates could be forced to use a bathroom that doesn’t match their gender identity.
Private businesses are allowed to set their own bathroom policies. The law overturns a Charlotte nondiscrimination ordinance that would have allowed transgender people to use the bathroom of the gender with which they identify in restaurants, hotels and other “places of public accommodation.”
Law enforcement agencies say they’ve rarely received complaints about bathroom users. Several said that if someone called to report a person using the wrong bathroom, they’d file trespassing charges – but only if the person in charge of the public building wanted to press charges.
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“House Bill 2 does not create any criminal offenses,” said Johnston County Sheriff Steve Bizzell, who’s a Republican. “Therefore, from a law enforcement perspective, no changes in law enforcement responses are necessary by the enactment of House Bill 2.”
Under the state’s trespassing law, the person in charge of a government facility would have to ask the bathroom user to leave. Upon a refusal to leave, officers could issue a citation if they witnessed the incident, or the person in charge could go to a magistrate to press charges.
“I expect that this situation will seldom, if ever, occur unless some group stages a situation trying to provoke a building owner, and then it will occur only if the building owner ‘takes the bait’ and tells the violator to leave and then the building owner pursues the trespass charge,” Bizzell said.
Durham police spokesman Wil Glenn also said his department would only file trespassing charges “if that is how the person in charge of the building wants the situation handled.”
Second-degree trespassing is a Class 3 misdemeanor in North Carolina, meaning offenders can receive a maximum fine of $200.
Supporters of HB2 say they don’t think the law needs to include tougher penalties for violators.
“The goal here is not to make transgender people into criminals,” said Tami Fitzgerald of the N.C. Values Coalition, which pushed for the law. “The goal is to keep men out of women’s bathrooms.”
Rep. Julia Howard, a Mocksville Republican and a primary sponsor of HB2, said lawmakers’ main goal was overturning the Charlotte ordinance. If the legislature hadn’t acted, she said, a man entering a YMCA women’s locker room couldn’t have been charged with trespassing – and anyone who sought to eject the man might be arrested instead.
“We were hoping it would just bring people back to a degree of common sense,” Howard said. “Nobody wants a 200-pound male going into some changing room full of girls.”
Even though they’re unlikely to face serious criminal charges, transgender people worry about how HB2 will affect them in public restrooms, said Rep. Chris Sgro, a Greensboro Democrat and executive director of Equality North Carolina.
“I’m very concerned that people in the general public will think that they should be assessing what someone’s gender is,” Sgro said, adding that the rhetoric around HB2 could provoke threats, harassment or even violence. “I’ve heard from people who are very scared and feel that they’re no longer safe in restrooms.”
Sgro said the law’s wording makes it difficult for police to enforce. “The notion that anybody would carry their birth certificate is preposterous,” he said. “There’s nobody designated to be monitoring this situation.”
The leader of the LGBT advocacy group argues that the lack of an enforcement provision undercuts HB2 supporters’ argument that the law protects the safety of bathroom users.
“They would have come up with an enforcement mechanism if the people who wrote this law actually thought that allowing trans people access to the correct restroom was a public safety issue,” he said.
Asked about the enforcement issue this week, Gov. Pat McCrory said that trespassing laws have always been adequate for handling bathroom problems.
“We’re using trespassing laws that we were using before House Bill 2,” he said. “It’s basic privacy rights and that’s trespassing. Nothing’s really changed in that regard.”
Beyond the trespassing law, Raleigh has a city ordinance on the books that makes it “unlawful for a member of one sex to enter or use a facility provided for members of the opposite sex.” The ordinance dates to 1959, but police don’t enforce it and city leaders say they plan to change it.
Because HB2 doesn’t list a specific crime, Raleigh spokesman Damien Graham said, “we can’t arrest someone for being in the wrong bathroom.”
“If we receive a complaint, we will respond to that complaint, but we would not make an arrest solely on the issue of being in the wrong bathroom,” Graham added. “Likely, we would try to find other accommodations to resolve the issue.”