× Expand Photo by Alex Boerner Joaquín Carcaño

Attempting to explain why North Carolina has a compelling interest in requiring transgender people to use the bathrooms that align with their biological sex, Governor McCrory's lawyer lost control of his argument before he'd even begun.

U.S. District Court Judge Thomas Schroeder, a George W. Bush appointee, was trying to understand how HB 2 makes bathrooms, changing rooms, and locker rooms safer during a hearing in Winston-Salem on Monday.

"If a transgender female goes into a women's public restroom, there's a risk of public exposure," Butch Bowers, the governor's lawyer, posited.

"How can there be public exposure?" an incredulous Schroeder responded. "There are no urinals in a women's bathroom."

It went downhill from there, as Bowers and two other attorneys for the defendants, representing the General Assembly and the University of North Carolina, argued against a preliminary injunction that would block the bathroom provision of HB 2. The state ACLU has filed suit against the state, along with a transgender man employed by UNC-Chapel Hill, two transgender students at UNC-Greensboro and UNC School of the Arts, respectively, and three lesbian women. The federal government has filed a separate lawsuit, alleging that HB 2 violates the sex discrimination provisions of Title IX. The two lawsuits are expected to be consolidated for a trial scheduled for November 14.

After Bowers's bathroom scenario fell flat, he tried again with a hypothetical involving military facilities where soldiers are separated by sex. But he had to acknowledge that he couldn't think of a situation where that would apply under the provisions of HB 2, which covers state public agencies.

"A transgender female who dresses as a female, lives life as a female, and, to all outward appearances, is female is now supposed to use a men's bathroom," Schroeder mused. "How on earth is that supposed to work?"

"Partially by single-occupancy bathrooms, which admittedly are not available in all instances," Bowers replied. "And this would be purely speculation on my part: some transgender individuals will continue to use the bathrooms they always have."

"They would be violating the law," Schroeder shot back.

"There's no enforcement," Bowers admitted.

"Then why have a law?" the judge asked. Barely suppressed laughter could be heard in the gallery.

Representing UNC, Noel Francisco didn't defend the law so much as argue that his client should be dropped from the lawsuit. He took issue with statements by Joaquín Carcaño, a twenty-seven-year-old employee of the Institute for Global Health & Infectious Diseases at UNC-Chapel Hill, that he would be harmed by having HB 2 on the books. "One thing these declarations don't say is that any administrator has threatened to take any action against them based on using a bathroom consistent with their gender identity," Francisco said.

Schroeder seemed puzzled. "Why didn't the university file a one-page response saying, 'We don't like the law and go ahead and enforce an injunction?'"

Paul Smith, a lawyer for the plaintiffs, who argued the landmark Lawrence v. Texas case before the U.S. Supreme Court in 2003, challenged Francisco's claim that employees and students have not been harmed.

"Mr. Carcaño was directed by his supervisor to stop using the bathroom where he worked and go down the service elevator to use the bathroom with the housekeeping staff," he said. "He is stigmatized by having to wait by the elevator in front of his coworkers to go to the bathroom and has stated that he avoids going to the bathroom as much as possible."

Schroeder also questioned the point of the law, if public agencies like UNC and Charlotte-Mecklenburg Schools don't feel obligated to comply with it.

"Presumably your law had some importance because the legislature passed it on an expedited basis," he told Kyle Duncan, the lawyer for the General Assembly. "But you have important institutions saying, 'We're not going to follow it.' I haven't seen any threat letters coming from the state to these institutions."

When it was the plaintiffs' turn to make their case, Schroeder asked Smith to consider whether there might be a case for HB 2 protecting the privacy rights of people who don't want to be exposed to a transgender person stripping down in the middle of a bathroom.

"I think that would be illegal in any bathroom," Smith responded. "There's no purpose in stripping naked in a bathroom." Such behavior, he added, would likely be covered by the statute governing indecent exposure. "Transgender people are the last ones you need to worry about with that, but if they were loitering, harassing people, or engaging in predatory behavior in a sensitive area like a locker room, they would be subject to the law just like anyone else. The idea that this law is going to help law enforcement address other problems is simply a fantasy."

Schroeder's decision will likely be guided by a ruling from the Fourth Circuit Court of Appeals in April, which found that Gavin Grimm, a transgender high school student in Virginia, has the right to use the bathroom he prefers. Bowers, McCrory's lawyer, seemed to hedge his bets. He requested that any injunction be "narrowly tailored" to the named plaintiffs and to Title IX requirements that school systems not engage in discrimination. He also asked that it only apply to bathrooms.

"I'm going to endeavor to get you a decision as soon as I can," Schroeder promised. "I know that school is about to crank up for some unfortunate or fortunate students."

This article appeared in print with the headline "Try Harder, Guys"