WINSTON-SALEM, N.C.—Aug. 1 found North Carolina in limbo over the controversial “bathroom bill,” House Bill 2 (HB2). The date was the start of the first court hearing concerning the legislation, which has inspired five federal lawsuits since its invention at a one-day special session in March. This particular hearing is preliminary, considering a request for an injunction to halt the parts of the bill that are most harmful to transgender residents of North Carolina — the commandment that all people use the public restrooms and changing rooms that coincide with their birth gender.
The federal judge assigned to the case, Thomas Schroeder, has a history that would give most LGBT advocates pause. Schroeder was once a young lawyer who represented the R.J. Reynolds Tobacco Company, before being appointed to his current position by President George W. Bush. Schroeder’s most controversial recent decision was to uphold North Carolina’s strict voter ID law, which has since been overturned in federal appeals court.
Although Schroeder’s history is conservative, his conduct on the HB2 case has yet to seem biased. In fact, Schroeder requested written briefs from both sides of the argument, signaling that the decision would not be impulsive but rather well-considered, and may take some time. Further, Schroeder’s questions to both defendant and plaintiff showed objectivity.
Schroeder asked Paul Smith, an attorney representing opponents of HB2, about the concerns over safety and privacy raised by supporters of the law. In response, Smith pointed out that the issue of which bathroom a transgender person should use was practically invisible before the bill was signed into law.
“The status quo was working for transgender people in that they could make these decisions, that they could use common sense,” Smith said in court.
Schroeder turned to Butch Bowers, a lawyer representing the McCrory administration’s defense of the bill.
“How does this law make bathrooms and changing facilities safer?” Schroeder asked. Soon the issue of pre-existing bathroom laws arose. “Why aren’t those sufficient? Or are they?”
There were already laws on the books in North Carolina against molestation, indecent exposure and peeping in bathrooms. The fact that HB2 redoubles these existing laws is one point used by opponents of the legislation to prove its irrelevance. Bowers, on the other hand, argues that HB2 is a necessary extension of these laws.
Schroeder seemed critical, asking, “So are we now going to have people dressed as women using the men’s room?”
Bowers’ response was a verbal shrug. “My guess is that some transgender people will use the restroom they always have, and no one will notice.”
As the court hearing is ongoing, no decision is definite yet. It remains for both sides to present evidence of their arguments to the judge in the form of written briefs. If Schroeder were to grant the plaintiff’s request for an injunction, the bathroom portion of the bill would remain inactive until all court cases concerning HB2 are decided. Most of these cases are assigned to Schroeder himself, so this hearing may set the tone for the future of this controversial legislation.