Judge Questions Whether 'Bathroom Bill' Fight Should Proceed

Jun 25, 2018

Plaintiff Joaquin Carcano, center, addresses reporters after a hearing Monday, June 25, 2018, in Winston-Salem, N.C., on their lawsuit challenging the law that replaced North Carolina’s “bathroom bill.” Carcano and other transgender plaintiffs argue the new law continues to discourage transgender people from using restrooms that match their gender identity.
Credit Jonathan Drew / AP

Updated 4:20 p.m.

A federal judge said Monday he was "at a loss" to understand how transgender North Carolinians are being harmed by a compromise law that undid the state's "bathroom bill" but also prevented local governments from enacting new LGBT protections.

U.S. District Judge Thomas Schroeder heard arguments from lawyers for Republican legislative leaders who say the lawsuit should be dismissed because plaintiffs can't prove they're still being harmed by the current law. The plaintiffs, however, argue the replacement law continues its predecessor's damage by creating uncertainty that leaves transgender people afraid to use restrooms matching their identity.

The 2017 replacement law did away with the "bathroom bill" requirement that transgender people use restrooms that correspond to their sex at birth in many public buildings.

But the current law, known as H.B. 142, made clear that only state lawmakers — not local governments or public school officials — are in charge of restroom access rules. The new law also bars local governments from enacting new nondiscrimination ordinances for workplaces, hotels and restaurants until December 2020.

Judge Schroeder asked lawyers for the plaintiffs several times to explain how the current law is creating legal harm when it removes an old restroom restriction and doesn't impose new ones.

"How does HB142 restrict plaintiffs' access to the restroom of their choice?" he asked.

He also questioned how the plaintiffs' ability to use restrooms matching their identity differs from what it was before the original "bathroom bill" was enacted in 2016.

"I'm a little bit at a loss as to how returning plaintiffs to the state they were in before constitutes an injury," he said.

American Civil Liberties Union lawyer Chase Strangio argued his clients are at a disadvantage because even when they seek clarity from local governments or school officials, they're often refused any guidance under a law that makes clear only state lawmakers can regulate bathroom access. Yet, non-transgender people don't face the same problem because the state effectively continues to regulate restrooms for everyone else through men's and women's signs, Strangio said.

As a result, many transgender people continue to avoid public restrooms, Strangio said, adding: "This is a law that was designed to bar transgender people."

Strangio also argued that the new law discriminates against LGBT people because it prevents them from seeking new local ordinances to protect them, even as other classes of people — such as minorities or religious groups — are already protected under existing federal and local laws.

Schroeder didn't give a timetable for when he would rule on the lawmakers' request to dismiss the case. He also said he needed resolve the dismissal request before he considers a proposed legal settlement between the plaintiffs and Democratic Gov. Roy Cooper to affirm transgender people's right to use restrooms matching their identities in many government buildings.

After the original "bathroom bill" was enacted in 2016, company leaders halted or delayed plans to bring thousands of jobs to North Carolina in response to a boycott campaign. Major sporting events pulled out of the state.

But since the compromise last year, the state has again become an attractive location for out-of-state corporations. And several sports leagues have decided to bring back championship events.

The group represented by Strangio had sued over the original "bathroom bill," but revised their lawsuit last year to target the replacement law.

Stephen Schwartz, a lawyer for the Republican leaders of the North Carolina House and Senate, argued the case should be dismissed because plaintiffs haven't demonstrated a tangible harm from the new law.

"This has been a lawsuit looking for a reason to exist," he told the judge.

He said that for the plaintiffs to cite uncertainty over restroom access isn't enough to sustain a federal lawsuit.
"Uncertainty, by itself, has never been grounds for jurisdiction," he said.

Lawyers for the University of North Carolina, which is also a defendant, shared some concerns about the plaintiffs' standing to sue. But, no matter what, they say the university should be dropped from the lawsuit because university officials didn't enact the law and can't change it.

"The injury, if it exists at all, is traceable to the state and not the university," attorney Vivek Suri said. 

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