U.S. District Court Judge Thomas D. Schroeder may well have had a heightened sense of skepticism when he heard attorneys for North Carolina defend House Bill 2 at a hearing Monday.
The judge, after all, had sat through lengthy proceedings in which state lawyers defended every provision of a 2013 law that required a valid photo ID to vote and imposed other changes that disproportionately affected black voters. Schroeder, a Republican appointed by President George W. Bush, issued a 400-plus-page ruling in which he upheld every part of the voting law. But the U.S. Fourth Circuit Court of Appeals reversed him entirely and noted that he overlooked blatant discrimination by missing “the forest in carefully surveying the many trees.”
On Monday, Schroeder was back on the bench listening to state attorneys argue that HB2 was not what it looked like. It may look like discrimination, they said, but it’s really about safety and privacy. Yes, it requires government agencies to ban transgender people from using the bathroom consistent with their gender identity. And, yes, it eliminated local anti-discrimination ordinances that protect gay people. But, they said, it was about protecting women and girls who don’t want to encounter a transgender woman in the women’s room of public schools, state universities, rest stops and other public facilities.
Plaintiffs are asking the judge to suspend HB2 until completion of a trial set for November. This time, Schroeder appeared more determined to see past the state’s nonsense in defense of discrimination. He noted, for instance, that the state’s stress on privacy cuts both ways. HB2, he said, would appear to invade the privacy of transgender people when, for instance, a transgender woman is required to use a men’s bathroom.
The judge asked Butch Bowers, an attorney for one of the defendants, Gov. Pat McCrory, “How on earth is that supposed to work? So we are now going to have people dressed as women using the men’s room?”
Schroeder asked how this ban is to be enforced.
“There is no enforcement mechanism of the law,” Bowers told him.
“Then why have it?” Schroeder asked.
His question sounded like an answer. And it should be his answer. Always unenforceable and already widely flouted, HB2 is pointless beyond being a statement of discrimination.
While the state must wait on Schroeder’s ruling, the public’s verdict is clear. A May 24 PPP poll found 50 percent of North Carolina voters think HB2 should be repealed while only 38 percent think it should remain law.
HB2 should be suspended until it is fully reviewed by the federal court system.