Judge hears first argument in HB2 court battle

North Carolina’s “bathroom bill” had its first day in court this morning, with a district judge considering whether to block its enforcement while courts determine its constitutionality.

The law requires restroom and locker room facilities in schools and government buildings be accessed based on biology, rather than gender identity, and bars local governments from circumventing the rule. On Nov. 14, U.S. District Judge Thomas Schroeder will preside over a full trial for House Bill 2 (HB2) to establish its long-term viability. Today, Schroeder heard oral arguments for a preliminary injunction to halt the law’s enforcement. Transgender rights groups claim it poses an immediate threat and cannot wait until November.

Schroeder expressed skepticism of arguments on both sides and questioned how the law will work practically. After hearing evidence for more than three hours, he decided to delay his ruling. The judge said he wanted more time to collect facts but doesn’t expect to take long.

“I will endeavor to make a decision as soon as I can,” he said. “I know school is about to ramp up.”

During his questioning, Schroeder said he was not clear on the punishment for violating HB2 or how to enforce it in the state.

HB2 opponents argue the law violates both Title IX and the 14th Amendment. Administrators with the University of North Carolina, the only Title IX defendant in the case, already said they will not enforce HB2 on their campuses.

“It’s not clear to me how this law is supposed to work,” Schroeder said. “Don’t existing laws provide remedies for privacy concerns?”

The judge clarified he wants to simplify the language to make punishments and enforcement clear—while ensuring not to tread on state peeping, indecent exposure, and trespass laws.

Attorneys representing the state and Gov. Pat McCrory, a Republican, argued HB2 offers common-sense privacy protections and blocking it puts women and children at risk.

“Any harm to plaintiffs due to lack of access to restrooms designated for the opposite sex certainly cannot outweigh the privacy and safety risks presented to the public,” McCrory’s lawyers said in a court filing opposing the injunction.

The plaintiffs have a high burden of proof to force Schroeder to approve their injunction.

The American Civil Liberties Union (ACLU), Lambda Legal, and other LGBT advocates presented the court with six different persons they said the law adversely affects.

A UNC-Chapel Hill employee named Joaquín Carcaño is the lead plaintiff. Born a woman, Carcaño, 28, now identifies as a man and claims HB2 is humiliating.

“All I want is to use the appropriate restroom, in peace, just like everyone else,” Carcaño said. “It’s humiliating that this law separates me from my peers and treats me like a second-class citizen.”

Chris Brook, ACLU of North Carolina legal director, said persons like Carcaño suffer irreparable harm each day HB2 stays on the books: “It must be put on hold while it is reviewed by the court.”

HB2 has had fierce opposition since McCrory signed it into law in March. Republican lawmakers drafted the legislation in an emergency session to stop the city of Charlotte from rewriting its nondiscrimination ordinance to include gender identity.

McCrory said the version of the bill North Carolina’s General Assembly sent him was not ideal, but he decided to support it anyway. Amid public pressure, McCrory issued an executive order in April to soften the language of HB2 and ensure state gay and transgender employees will not face unfair treatment.

At least five lawsuits are pending over HB2, including dueling court actions between the U.S. Department of Justice and the state of North Carolina. Several businesses have boycotted the state and most recently, the NBA announced it would move the 2017 All-Star Game from Charlotte because of the “climate created by HB2.”

Throughout the public outcry and HB2’s revisions, McCrory has stuck by the law. He claims in areas of heightened vulnerability, such as restrooms and changing facilities, the government has a compelling interest to protect individual privacy and safety.