Reality Check: Does HB2 keep bathrooms safer?

ASHEVILLE, N.C. (WLOS) - Republicans have argued North Carolina's House Bill 2, officially titled the Public Facilities Privacy and Security Act, keeps bathrooms safer.

It's been law for almost a year. Legislators who voted for it made two main arguments: They said Charlotte's City Council passed an unconstitutional ordinance, which needed to be overturned. Charlotte has since repealed its ordinance. The other argument legislators made was about safety.

"We need to have segregated men's and women's restrooms," former Gov. Pat McCrory said after Charlotte passed its original ordinance.

"Protecting women and children in bathrooms and locker rooms and changing facilities, there's no price tag you can put on that," Lt. Gov. Dan Forest said.

HB2 supporters echoed this belief.

"It's a safety issue," several people told us.

House Bill 2 mandates public agencies assign bathrooms to be used based on the sex listed on people's birth certificates.

"There are several documented instances where men have dressed up like women, or used policies similar to Charlotte's bathroom ordinance, to gain access to women's bathrooms and changing rooms and locker rooms and spy on little girls," Sen. Phil Berger said in April 2016.

Two defense attorneys we spoke with said pre-existing criminal laws already address the situations Berger described. They said the law is not keeping people safer.

"You have to scratch your head and go, 'I'm not sure that it really addresses the harm that we're trying to get rid of,'" attorney Stephen Lindsay said.

"It's absurd to think it's about safety," attorney Michael Casterline said. "It seems like there would be a way without HB2 to protect the same interest that HB2 claims to be protecting."

During a preliminary injunction hearing in August, federal judge Thomas Schroeder questioned the law's purpose. Nobody can be charged with violating HB2, but people can be prosecuted for crimes in bathrooms using preexisting laws like trespassing, indecent exposure, peeping and assault. In the hearing, the attorney for the legislature's leaders defending HB2 argued enforcing indecent exposure law based on gender identity "becomes extraordinarily difficult."

"It certainly does complicate things," Casterline said.

"Sounds a bit ridiculous to me, absolutely ridiculous. That's certainly not an argument I'd want to make with a straight face," Lindsay said.

Lindsay points out the state's indecent exposure law doesn't mention a gender. It says "any person," and it's the same with the peeping law.

"In an effort to make these laws more current, we've made them gender neutral. So, we have a secretly peeping statute. It's not a peeping tom statute anymore," Lindsay said.

In the federal hearing, McCrory's attorney guessed some transgender people will probably still use the bathrooms they always have, because the law doesn't include a way to enforce it. The judge responded, "Then why have it? I don't understand."

In the last year, Asheville police said they haven't gotten a complaint about a person being in the wrong bathroom.

The next step in the legal battle is scheduled to come in May. The judge temporarily stopped the University of North Carolina from enforcing HB2 only against three transgender plaintiffs. In the spring, the ACLU will argue to get the injunction expanded to more than just the three plaintiffs.

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