WINSTON-SALEM, N.C. ― A federal judge lobbed tough questions at GOP lawyers Monday as he considered whether to block a North Carolina legal measure governing transgender bathroom access, asking pointedly how the law was making people safer.
The Republican lawyers urged U.S. District Judge Thomas Schroeder to deny the preliminary injunction sought by transgender plaintiffs, but the judge said he’d issue a ruling later.
His request for more written briefs indicated a decision was at least days away.
“How does this law make bathrooms and changing rooms safer in North Carolina?” the judge asked Butch Bowers, an attorney for Republican Gov. Pat McCrory, a defendant in legal challenges to the law.
The state’s Republican leaders argue the law is needed to protect privacy and safety by keeping men out of women’s restrooms. Transgender residents challenging the law known as HB2 argue that restroom safety is protected by existing laws, and they say the North Carolina measure is harmful and discriminatory.
The law passed in March requires transgender people to use the restrooms in schools and many public buildings that correspond to the sex on their birth certificates, rather than their gender identity. It also excludes gender identity and sexual orientation from statewide antidiscrimination protections. Trial is scheduled for November.
Schroeder, known for his thoroughness, grilled both sides about the premises underpinning their arguments, but his most pointed questions came when Bowers stood to address the court.
Schroeder asked Bowers why existing trespassing, voyeurism and indecent exposure laws aren’t sufficient to protect restroom privacy.
Bowers said some traffic laws are redundant, but that doesn’t mean they aren’t needed. He said society has long favored separate restrooms for men and women, adding: “HB2 simply amplifies that.”
The judge asked how a transgender woman who had been born as a male could offend others in a women’s restroom that had separate stalls and no urinals.
“I’m at a loss as to the circumstances unless someone strips down naked,” he said.
He then asked if it would be better for such a transgender woman to walk into a men’s room dressed in female attire.
“How on earth is that supposed to work? So we are now going to have people dressed as women using the men’s room?” he said.
Bowers responded: “My guess is that some transgender people will use the restrooms they always have, and no one will notice.”
The U.S. Justice Department and the American Civil Liberties Union, which represents the transgender plaintiffs, argued for a preliminary injunction to block the restroom provision of the law. Defending the law are McCrory, Republican legislative leaders and a citizens’ group.
Several cases seeking to challenge or defend the law were assigned to Schroeder, while another case is pending in a separate federal court.
Schroeder also questioned lawyers representing the transgender plaintiffs, asking whether the injunction they’re seeking could create a situation in which 12-year-old students would wind up showering next a 17-year-old transgender teen with different anatomy.
Plaintiffs’ lawyer Paul Smith said that would be an “extraordinarily unusual event,” but that transgender North Carolina residents must choose each day between breaking the law and using restrooms that don’t match their identity or appearance.
“They’re essentially left with no option,” he said.
The plaintiffs’ arguments that HB2 violates the federal education law known as Title IX were bolstered by a recent decision by the 4th Circuit Court of Appeals in Virginia. The appeals court ruled in favor of a transgender teen seeking to use the boys’ restrooms at his high school.
But Kyle Duncan, a lawyer working on that case as well as representing North Carolina legislative leaders, told Schroeder that the Obama administration is espousing a “novel understanding of what Title IX requires.”
Schroeder also heard arguments from lawyers for the University of North Carolina, who said the higher education system should be dropped as a defendant because it hasn’t sought to enforce HB2. Lawyers for the plaintiffs counter that memos sent to students and staff contradict that claim.