Among the questions that John Swofford, the ACC commissioner, has addressed about North Carolina’s House Bill 2, this one might have been most difficult to answer: Was he concerned, he was asked recently, about how the law might affect access to sports locker rooms?
HB2, as it’s more well known, has created nationwide controversy. One part of the law requires people to use the bathroom of the gender specified on their birth certificates, and opponents of HB2 say it discriminates against people who are transgender. Supporters of the law, meanwhile, maintain that it protects standards of privacy in public bathrooms.
For high school, college and professional sports teams in North Carolina, HB2 has also raised questions about locker room access. The law clearly states that people use “a restroom, locker room, changing room, or shower room” of the gender designated on their birth certificate.
But the language of the law, and its broadness, has created uncertainty about how, or if, HB2 affects locker room situations that are common in sports.
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For instance, is it now illegal for Anson Dorrance, the North Carolina women’s soccer coach, to enter his team’s locker room?
And what does the law mean for journalists? Would a female reporter be prohibited from entering a male locker room to conduct interviews that are a routine part of covering college and professional sporting events?
Lawyers, professors, college sports officials and the architect of HB2 say the impact of the law on sports locker rooms is open to interpretation. Some might conclude that HB2 is clear enough – that a male coach is prohibited from entering in a female locker room. Others might question whether HB2 applies at all.
During the ACC’s recent annual spring meetings, league officials – including athletic directors and senior women administrators – talked about HB2’s potential impact on hosting ACC championships in North Carolina. And, Swofford said, they talked about the locker room question.
“It hasn’t been a problem to this point,” Swofford said at the conclusion of the meetings. “And if that were to become a problem, that would be an issue.”
Swofford didn’t appear exactly sure of what to say. Will the law keep male coaches out of female locker rooms? Would it apply to journalists?
Definitive answers are scarce.
Paul “Skip” Stam, a Republican legislator and a primary architect of the law, could not provide clear answers.
Stam during a brief phone interview expressed unfamiliarity with sports locker room settings. He questioned whether a male coach – like UNC’s Dorrance – would change clothes in front of female athletes, or whether they’d change clothes in front of him.
Stam expressed equal uncertainty about the implications of how the law applied to journalists who conduct interviews in locker rooms.
In Charlotte, both the NBA’s Hornets and the NFL’s Panthers have an open locker room policy after games, one that is in line with policies of their leagues. It’s the same for the Carolina Hurricanes of the NHL. All three leagues have expressed concern about the possible impact of HB2, but have not taken action or moved events, including the 2017 NBA All-Star game in Charlotte, from the state.
The NCAA mandates open locker room access for reporters who cover its men’s basketball tournament. The ACC basketball tournament also has an open-locker room policy for media members, and so do various colleges and universities, depending on the sport and the location of the competition.
And so HB2 has created its own set of questions for media members, ones that Stam couldn’t answer.
“I think you should ask, ‘Well when they have reporters in there, are the reporters in the part of the room where the girls were taking off their underwear and their bras?’” he asked. “Or were they in the part where they were taking off a sweatshirt?”
Cathryn Oakley, senior legislative counsel at the Human Rights Campaign, said there is no clear answer to the question of how HB2 affects locker room access. Indeed, she described those answers as “unknowable.”
Arguably, no, a male coach would not be allowed in a women’s locker room (under HB2). I also think, arguably, if he’s not himself changing there, maybe there wouldn’t be a problem.
Cathryn Oakley, senior legislative counsel at the Human Rights Campaign, which wants HB2 repealed
The Human Rights Campaign, an LGBT-rights group, is working to repeal HB2. Oakley said some of the “unintended consequences” of the bill exist because of how quickly it passed through the legislature – in a span of about 10 hours.
“They didn’t really spend the time thinking about” questions the bill would create, Oakley said.
“Arguably, no, a male coach would not be allowed in a women’s locker room (under HB2),” Oakley said. “I also think, arguably, if he’s not himself changing there, maybe there wouldn’t be a problem.
“I also think arguably that it would be up to the school to enforce the rules, and if the school chooses not to enforce it, as for the coach, because they don’t deem his time there to be underneath the auspices of HB2, then he would likely not be punished and then nothing would change.”
A punishable violation?
It’s unclear how HB2 would be enforced if it does, in fact, apply to routine locker room settings involving journalists or a coach and players of the opposite gender.
Would Dorrance, for instance, be committing an illegal act if he’s in his own team’s locker room before a game? And if so, would he be subject to some sort of disciplinary action?
Stam, who said “President Obama has now made this a nationwide issue,” added that there are general legal ramifications associated with being in violation of HB2.
“I have heard numerous times, ‘Well there’s just no enforcement provision in the bill so what does it matter?’” Stam said. “Any law fits into the rest of the law, which is 20 volumes. And the enforcement mechanism is the same as it was, has been, forever.
“That is, if you intentionally go into a bathroom marked for the opposite sex, you’re guilty of a minor misdemeanor, called trespass.”
Jane Wettach, a law professor at Duke University, sees both sides. In one way, the law doesn’t seem applicable to locker rooms in traditional sports settings. Yet in another, the language of the law could allow it to be applied to those settings.
Despite my opinion (that HB2 does not impact locker room access), it is not inconceivable to me that a public agency or school could choose to rely on the law to prevent access to such facilities by coaches or journalists who are of the opposite sex from the bathroom’s designation.
Duke law professor Jane Wettach
“I do not think the intention,” Wettach wrote in an email, “was to alter long-standing practices that allow entry for purposes other than using the facilities – i.e., for coaches or journalists who do not enter to use the facilities, but to interact with the players in their professional roles.
“Despite my opinion, it is not inconceivable to me that a public agency or school could choose to rely on the law to prevent access to such facilities by coaches or journalists who are of the opposite sex from the bathroom’s designation.”
Wait and see
It remains unclear, though, whether any university or public agency would do such a thing. Margaret Spellings, the president of UNC system, has said that the state’s public colleges and universities are caught in the middle of a federal fight over the legality of HB2.
Spellings has also acknowledged the reality that UNC system institutions are beholden to state laws, including HB2. And so would schools like UNC and N.C. State, have to force coaches and others to change how they do their jobs?
Officials at UNC, Duke and N.C. State don’t have many answers about how HB2 might affect locker room access. Duke is a private school and not subject to the law, but its teams could be affected when they travel within the state.
“We cannot predict how HB2 is going to affect sports facilities at public universities in North Carolina,” Art Chase, an athletic department spokesman, wrote in an email. “We will continue to monitor developments over the next several months in preparation for the Fall sports season.
“We wouldn’t want to speculate on what the impact of the bill might be months from now.”
N.C. State is also watching the situation.
“We have yet to fully advance that conversation, but will continue to monitor,” said associate athletic director Fred Demarest.
UNC, it appears, is taking a similar wait-and-see approach. Steve Keadey, one of the university’s lawyers who is working to understand how HB2 affects the campus community, didn’t return several calls and emails with inquiries about how UNC would handle any unintended consequences of HB2.
An athletic department spokesman, Steve Kirschner, said questions of locker room access for coaches and journalists are “on a long list of things that people are trying to determine to what the ramifications of this law are.
“Questions about female reporters going into (locker rooms) to do their jobs, coaches meeting with the team, student managers, trainers, things like that – those are things that are somewhere on a long list about what are the unintended consequences of this law,” Kirschner said.
It’s unclear when those questions will have answers or what, exactly, the answers will be.
Que Tucker, the commissioner of the North Carolina High School Athletic Association, said that HB2 hadn’t been among her concerns. Then she said she received word that some coaches were asking, as Tucker put it, “Where do we go at halftime? Where do I go if I’m a female and coach a male’s team?”
“There is an idea that that’s an unintended consequence of the bill,” Tucker said.
But does that mean that some coaches will be forced to go about their jobs differently? It’s a question that’s not unique to the high school level. On college campuses and beyond HB2 has created simple questions, as it relates to sports locker room access, that don’t have simple answers.