On Friday, U.S. District Court Judge Thomas D. Schroeder granted the ACLU's request for a preliminary injunction against a part of House Bill 2, heading off any potential enforcement of the law's bathroom provision until we get a ruling following the November trial. Here are five excerpts from the decision that demonstrate Schroeder's intense skepticism of the state's defense.
• "While there are no reported cases [of peeping, indecent exposure, and trespass violations] involving transgender users, at the preliminary injunction hearing Governor McCrory, Senator [Phil] Berger, and Representative [Tim] Moore indicated their assumption that this was so because transgender users have traditionally been excluded (or excluded themselves) from facilities that correspond with their gender identity. The evidence in the current record, however, suggests the opposite."
• [On the state's lack of preparation for the trial, compared with an affidavit the ACLU submitted from an expert who helped develop a protocol for transgender students in California.] "Defendants have not offered any evidence whatsoever on these points, despite having four months between the filing of this lawsuit and the hearing on this motion to do so. Indeed, the court does not even have a legislative record supporting the law to consider."
• "The individual transgender Plaintiffs have clearly shown that they will suffer irreparable harm in the absence of preliminary relief. ... In their response to Plaintiffs' motion, Defendants suggest that the individual transgender Plaintiffs' claims of irreparable harm are speculative and exaggerated, but Defendants have not presented any evidence to contradict Plaintiffs' evidence."
• "The current record indicates that many public agencies have become increasingly open to accommodating the interests of transgender individuals as society has evolved over time. This practice of case-by-case accommodation, while developing, appears to have gained acceptance in many places across North Carolina over the last few years. And the preliminary record contains uncontested evidence that these practices allowed the individual transgender Plaintiffs to use bathrooms and other facilities consistent with their gender identity for an extended period of time without causing any known infringement on the privacy rights of others."
• "In fact, rather than protect privacy, it appears at least equally likely that denying an injunction will create privacy problems, as it would require the individual transgender Plaintiffs, who outwardly appear as the sex with which they identify, to enter facilities designated for the opposite sex (e.g., requiring stereotypically-masculine appearing transgender individuals to use women's bathrooms), thus prompting unnecessary alarm and suspicion."
Worth noting: even if this part of HB 2 is struck down once and for all, and even though HB 2's ban on workplace discrimination lawsuits has been repealed (with caveats, of course), the rest—including the provision preempting local governments' living-wage and antidiscrimination laws—will remain intact.