Judge questions both sides of HB2; needs more time for decision

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WINSTON-SALEM, N.C. -- For the first time in a court setting, North Carolina’s House Bill 2 was discussed.

The law requires people to use restrooms in government owned buildings that correspond with their biological sex.

Monday morning, members of the American Civil Liberties Union, the United State’s Department of Justice, the State of North Carolina and representatives from University of North Carolina schools presented their arguments before the Honorable Judge Timothy Schroeder.

The hearing was to determine if a preliminary injunction is necessary before the full trial begins Nov. 14.

Lawyers arguing for three plaintiffs, along with the American Civil Liberties Union are trying to make the case that if the law creates irreparable harm to the transgender community. The three plaintiffs are transgender North Carolinians, all with ties to North Carolina’s public school system. They argue the law discriminates against transgenders and therefor is unconstitutional under the 14th Amendment.

“Everyday that House Bill 2 remains on the books, transgender people in North Carolina remain in the perilous position of being forced to avoid public restrooms, or risk violation of state law,” said Chris Brooks with North Carolina’s ACLU.

Paul Smith, with the Jenner & Block law firm, started the hearing by laying out the plaintiffs’ case and was immediately met with questions from Judge Schroeder. The judge tried to established how the system worked before HB2 and which laws were in place to protect the state’s interest of privacy.

“Everyone has the same privacy inters in not being exposed to others,” Judge Schroeder said.

Reviewing state statute, peeping, indecent exposure and trespass laws were brought up, as the judge expressed the need to protect children at “an impressionable age”.

“HB2 keeps men out of women's bathrooms and locker rooms, those other laws don't. They prosecute bad behavior in bathrooms,” said Executive Director of the NC Values Coalition Tamy Fitzgerald. “That's why we need House Bill 2.”

Still, members of the opposition argued HB2 created a problem that didn’t exist. That’s why they believe an injunction is suitable.

“There was no reported problem, no reported invasion of privacy or safety or injury to anyone and that's the way the world works in much of this country, and we're simply asking the judge today to let that happen again,” Smith said.

But members of the state said the purpose of this law was to clarify the bathroom status-quo for the sake of privacy protection.

Judge Schroeder questioned the position of UNC in this equation. Representatives from the universities openly object to enforcing the law. Judge Schroeder asked “If there’s no enforcement, why have it?”

There are no expressed punishments or sanctions in HB2 for those who violate the law, but Fitzgerald says that’s no excuse for not obeying.

“I think it's a ridiculous position to argue that because a law does not specifically lay out the enforcement provisions that it is not a valid law,” Fitzgerald said.

As for the universities, opponents of the law believe they need to do more to stand against the state. They argue that the policy of acknowledging HB2 in itself creates harm.

“They make that pronouncement and as the lawyer for the United States said, what that means is, when you see a sign on the campus of UNC that says men's room, that means men's room, except not transgender men,” Smith said.

In the end, Judge Schroeder will take all this into consideration, hoping to find a way to eliminate redundancies in any potential ruling. Smith speculates the decision should be made in the next couple days, if not week. The trial for HB2 begins Nov. 14.