Hunter Schafer

Schafer

A federal judge signed a legal agreement that could end a long-simmering legal fight over which restrooms and other public facilities can be used by transgender people.

U.S. District Judge Thomas D. Schroeder signed the agreement, known as a consent decree. That agreement makes clear that state law does not prohibit transgender people from using whichever bathroom or other public facility they want. In other words, transgender women can use the women’s restroom and transgender men can use the men’s restroom.

The agreement would settle all of the remaining claims in a federal lawsuit that started three years ago over the controversial state law known as House Bill 2. Republican state legislators pushed that law through immediately after the Charlotte City Council passed an ordinance expanding legal protections for gays, lesbians and transgender people.

The passage of House Bill 2, which, among other things, required transgender men to use the women’s restroom and transgender women to use the men’s restroom, sparked an economic boycott of North Carolina in which businesses pulled expansion plans, musical artists cancelled concerts and sports tournaments such as the ACC moved their events. State legislators reached a compromise in 2017 that resulted in House Bill 142, but plaintiffs filed a lawsuit claiming that the new law was too vague and transgender people remained uncertain if they would be prosecuted for using the wrong restroom.

Among the plaintiffs of the original lawsuit was a former UNC School of the Arts high school student, Hunter Schafer, a transgender woman who is now a star on the HBO critically acclaimed series, “Euphoria.”

The lead plaintiff, Joaquin Carcano, a transgender man who works for UNC Chapel Hill, said in a statement Tuesday that he’s happy about the settlement.

“This is a tremendous victory but not a complete one,” he said.

“While I am glad that Governor (Roy) Cooper agreed to the settlement, it remains devastating to know that local protections for LGBTQ people are still banned under state law while so many of our community continue to face violence, harassment and discrimination simply because of who we are. The fight for full justice will continue.”

Long in the works

The consent decree has been in the works for a while, but attorneys for Senate Leader Phil Berger and House Leader Tim Moore have argued against the proposed agreement, saying it raises troubling questions.

Gene Schaerr, an attorney representing state legislative leaders, said at a May 17 hearing in federal court in Winston-Salem that state legislative leaders worry about a federal court having jurisdiction over state actions.

At that same hearing, Schroeder ordered an updated consent decree that might satisfy legislative leaders. Berger and Moore remain opposed to the consent decree, according to court documents.

But Schroeder wrote in a memorandum and opinion that he believes the decree is a fair resolution to litigation that has been pending for the past three years.

Tami Fitzgerald, executive director of NC Values Coalition, bashed the agreement in a statement on Tuesday.

“Governor Cooper’s fake settlement is actually like the fox watching the hen house,” she said. “He and Attorney General (Josh) Stein have never stood in defense of our bathroom privacy and protections and now they are forcing women and girls to lose their right to privacy and safety in public facilities they control.”

Republican legislative leaders had argued that House Bill 2 was necessary to promote public safety of women and girls and to protect their privacy.

They argued that allowing transgender people to use restrooms aligned with their gender identity could make it possible for a man, dressed as a woman, to sneak into a women’s bathroom and sexually or physically assault a woman.

But there’s no evidence of a connection between assaults on women in restrooms and laws allowing transgender people to use the restroom aligned with their gender identities.

Fitzgerald said she thanks God that public schools are not under Cooper’s control.

“Women and children have an equal right to safely access public restrooms, showers and changing facilities without risking their safety or seeing men’s genitals on full display,” she said in her statement.

In a previous hearing, Schroeder noted that House Bill 2 had no enforcement mechanism and that transgender people had been using whatever restroom they wanted for years before House Bill 2.

Irena Como, acting legal director for the ACLU of North Carolina, said that while the consent decree provides some clarity and relief for transgender people, there is work that remains to be done.

“The shameful stain of House Bill 2 and the pain and harm it caused to so many people will always be part of North Carolina’s history,” she said. “LGBTQ North Carolinians still lack comprehensive, statewide nondiscrimination protections while on the job, patronizing a business open to the public, or simply going about their daily lives.”

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mhewlett@wsjournal.com 336-727-7326 @mhewlettWSJ

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