LGBT Advocates Argue HB2 Replacement Law Still Discriminates

A federal judge in Winston-Salem will consider whether a lawsuit over a measure that replaced the state's so-called “bathroom bill” should be dismissed.

The original law, known as HB2, required people at public facilities to use the bathrooms that corresponded to their sex at birth. That measure sparked a national controversy. The bipartisan compromise passed last year removed the bathroom access language.

Attorneys for Joachin Carcano and other plaintiffs say the new law leads to confusion over whether a transgender person could be punished for using the bathroom of their choice.

Attorneys for the state counter that the plaintiffs haven't proven that they are harmed by the new law. The University of North Carolina is also a defendant in the case. Attorney Vivek Suri argued that they should not be part of the lawsuit because they didn't pass the measure and have no means for fixing it.

Judge Thomas Schroeder did not make an immediate decision on the case but said he would do so as quickly as possible. Schroeder had multiple questions for both sides, but his most pointed questions went to the plaintiffs in the case, as he tried to determine how transgender people have been injured by the new law, known as HB142.

One of the changes is that policy-making over bathroom access is reserved for the legislature, so entities like UNC and local municipalities no longer have that ability.

Chase Strangio, an attorney who works for the ACLU's LGBT and AIDS Project, said that change has sowed confusion for transgender people, because they don't know how various facilities will react if a transgender person uses the bathroom of their choice.

He says for example that Carcano can't go to the bathroom at UNC - where he works - without fear of being charged with trespassing, because UNC hasn't provided any authority for allowing him the choice.

“There are very concrete injuries directly traceable to HB142,” he said.

Suri, the attorney for UNC, said a person doesn't need authorization to affirm things people are allowed to do.

Stephen Schwartz, an attorney representing the legislature, said the plaintiffs were looking to get a permission slip even though the change in the law no longer bars them from bathroom access.

He called the plaintiff's legal action “a lawsuit looking for a reason to exist.”

At the closing of the arguments, Carcano - sitting in the front row of the courtroom - leaned forward and took a deep breath as friends comforted him.

In an interview outside the courtroom, he said he's been fighting the new law for a year and is exhausted.

“We deserve to live, study and work free from discrimination,” he said.

HB142 was a bipartisan effort to quell the swirling controversy caused by the passing of HB2 - which had led to a corporate backlash and the loss of NCAA tournaments. Few legislators were happy with it, but the law passed with both sides making some concessions.

The compromise came during a political change in North Carolina after Democrat Roy Cooper defeated former Gov. Pat McCrory in the 2016 election. McCrory had been a supporter of HB2, while Cooper had campaigned against it.