US District Court Judge Thomas D. Schroeder pressed the state at a hearing on Monday to show how the law made anyone safer and whether it was necessary. He said he would rule soon on whether to suspend the law.

Chuck Burton / AP North Carolina Gov. Pat McCrory

WINSTON-SALEM, North Carolina — A federal judge expressed skepticism on Monday that North Carolina lawmakers were solving a legitimate safety problem when they passed a law that bans many transgender people from restrooms in government facilities that match their gender identity. US District Court Judge Thomas D. Schroeder also seemed flummoxed at one point by how the law could function in practical terms — it requires people to use single-sex restrooms associated with the sex on their birth certificate, thereby making transgender people enter facilities that conflict with their identity and appearance. "We would have people dressed like males, who consider themselves male, walking into the ladies room," he told a lawyer representing Gov. Pat McCrory. "How on earth is that supposed to work?" he asked. Schroeder was considering a request to suspend the law while its underlying legal merits are considered at a trial. “I endeavor to make a decision as soon as I can,” he told the courtroom. "I know school is about to ramp up.”

"Is there any legislative record here of a problem that needed to be addressed?" the judge asked.

In a hearing that stretched more than three hours, Schroeder asked lawyers from both sides how pre-existing state laws against indecent exposure, peeping, and trespassing could apply. “Why aren’t those sufficient protection, or are they?” he said. "How does this law make us safer?" And he asked whether the University of North Carolina should be named as a defendant at all. Yet he expressed concern for the privacy rights of young students, particularly girls, who could be exposed to seeing a transgender girl's genitals — which may appear male — in locker rooms, showers, or changing facilities. He said there could be a heightened interest in protecting privacy "if minors are involved," pointing out they are living through "impressionable years."



On March 23, Republican state lawmakers convened a one-day legislative session to pass House Bill 2 with the explicit goal of overriding an ordinance in Charlotte that would have protected LGBT people from discrimination in housing and public accommodations.

McCrory and GOP lawmakers claimed the public accommodations portion of the city’s ordinance posed a safety threat by allowing transgender women — whom they called “men” — to prey on women and girls, particularly in bathrooms. In addition to superseding Charlotte's policy, the law stated that single-sex restrooms and locker rooms in public schools and government buildings may only be used by people with the corresponding sex listed on their birth certificate. Within days, a challenge was filed by a transgender student and a transgender employee at the University of North Carolina. Represented by lawyers from the ACLU and Lambda Legal, they argued that the law violated their constitutional and civil rights — leaning on a growing body of court cases and legal interpretations that find transgender discrimination is a form of illegal sex discrimination. On Monday they went to court to ask that the law be suspended — the furthest along of at least five lawsuits relating to the state law. Judge Schroeder has scheduled a full trial for November. Meanwhile, there is a parallel case before his court brought by the Department of Justice, which sued North Carolina to strike down the statute.

Before the governor's lawyer, Karl Bowers, could finish the first sentence of his oral argument on Monday, Judge Schroeder cut him off.

"What is the problem?" Judge Schroeder began. Bowers said the Charlotte ordinance created an issue; by extending new rights for transgender people in restrooms, it compromised public safety and privacy.



“HB2 confirms the privacy rights of not being exposed to the genitals of someone of the opposite sex," said a lawyer for the governor.

"Is there any legislative record here of a problem that needed to be addressed?" the judge pressed, asking if hearings or floor debates cited issues associated with transgender people using restrooms. "Not that I am aware of," Bowers replied. Bowers said he would submit records from the day of proceedings on HB2. Judge Schroeder then inquired what ramifications would arise from suspending the law and returning to the status quo. Rather than answer, however, Bowers replied that he would turn the judge's question "on its head," saying that HB2 was "reaffirming privacy." But the judge continued. Were other laws that ban nefarious activities — such as indecent exposure — not enough? he asked. “Why aren’t those sufficient protection, or are they?” he said. "How does this law make us safer?" Bowers answered, “HB2 confirms the privacy rights of not being exposed to the genitals of someone of the opposite sex.” But Schroeder pointed out that restrooms have partitions that prevent exposure to other people's genitals. "Not always," Bowers noted. "Are there urinals in the ladies room?" Schroeder rejoined. "I am at a loss, unless someone strips down naked, which is a violation of the law [that already exists to ban such behaviors], as I understand it." When pressed on how HB2 would work, requiring transgender men use women's rooms, Bowers pointed out that some transgender people "would continue" to use the restroom that reflects their gender identity regardless of the law.



"Then why have it?" said Schroeder. "I don't understand."

The legal challenge was filed in US District Court for the Middle District of North Carolina on behalf of Joaquín Carcaño, a transgender man who works at the University of North Carolina, Chapel Hill; Payton Grey McGarry, a transgender man who is a student at the University of North Carolina, Greensboro; and Angela Gilmore, a lesbian who is the associate dean for academic affairs at North Carolina Central University.

The ACLU of North Carolina and Equality North Carolina are also named as plaintiffs. Their underlying complaint argues that the law violates their rights to equal protection, privacy, and liberty under the 14th Amendment to the US Constitution and their civil rights under Title IX of the Education Amendments of of 1972.

Dominic Holden