We Talked With an ACLU Lawyer Who's Fighting Transphobic Bathroom Bills

ACLU staff attorney Chase Strangio

It’s been one month since North Carolina passed its discriminatory “bathroom bill,” HB2. The Republican-backed bill makes it illegal for transgender people to use bathrooms matching their gender identities and is one of several bathroom bills being debated across the country this spring. In the past month, there has been strong pushback to the bill, both nationally and in North Carolina. As mayors of several major cities have spoken out about the law, thousands of people on the ground in North Carolina have rallied against the transphobic measure through protests and acts of civil disobedience.

One strategy for challenging the bill is going through the courts. Days after the bill passed, the American Civil Liberties Union (ACLU) of North Carolina filed a federal lawsuit challenging HB2 on constitutional grounds. ACLU staff attorney Chase Strangio has been working on the case. I talked with Strangio, who specializes in legal treatment of transgender individuals (before joining the ACLU, he was director of prisoner justice initiatives at the Sylvia Rivera Law Project), about the legal process for fighting the discriminatory law and what on-the-ground activism looks like right now in North Carolina.

SARAH MIRK: Can you tell us about what work you’re doing in North Carolina? What is the legal strategy to fight this bill?

CHASE STRANGIO: So we’ve been working across the country during this legislative session in places where we’ve been seeing this increase in anti-trans laws coming up. And we had been successful in defeating a measure in South Dakota, but we knew that there was the possibility that something would come up in North Carolina. The city of Charlotte had passed a law that extended protections to trans people—legal protections—and the governor of North Carolina made a really big deal out of that and really wanted to take away those protections. So we knew it was very likely that when the North Carolina legislature came into session that they would really focus on this issue. What we didn’t necessarily expect was that they were gonna convene this special session in March. Over a period of 24 hours, they introduced a very comprehensive bill that took away a lot of rights from a lot of people and had the requirements of sort of mandating discrimination against trans people in public government buildings and all educational settings. That bill passed in 24 hours through both chambers, signed by Governor McCrory the same day.

We knew that we really wanted to send a message, first and foremost, that we were standing in solidarity with the trans community in North Carolina, who would be severely impacted by this law. So we put together a lawsuit to file within a couple of days. We’re arguing that the law violated the numerous constitutional provisions and then Title IX, which prohibits sex discrimination in education. So we filed that lawsuit pretty quickly, but the lawsuit really is just one tool among many to try to get rid of this horrible piece of legislation.

A protest against HB2 marches through the streets of downtown Chapel Hill, NC.

What’s the timeline on this? Is this law going to take years to fight and repeal, or is it something that could potentially be gone by next fall? Do you think this is going to have to go all the way to the Supreme Court?

Yeah, I think the timeline is an important question. When the North Carolina General Assembly passed the law in March, we knew that they would come back into session in April, since actually, the North Carolina legislative session only started for real—the actual session—on Monday, the 25th of April. So there was a strategy to try to get this repealed through the legislature, although that is a very unlikely thing given the extent to which the Republican lawmakers in the North Carolina legislature are really digging in. I mean, of course, they could repeal this thing tomorrow, and the timeline would be short. I think we’re not seeing political investment in that, given the Republican Party’s supermajority in both chambers in North Carolina. And as a separate matter of the fact, North Carolina has some of the most restrictive voting laws that have been upheld in court. So the ability of people to vote in North Carolina is restricted, which, of course, completely affects the makeup of the legislature. So the timeline, had there been any ability to repeal this, could’ve been very quick.

In terms of the litigation, it really depends. We will seek preliminary relief in court. That means, relatively quickly, we’ll ask the court to issue a ruling about having the law struck down while [the] lawsuit is litigated in full, which could take many years. But it’s possible that that would be denied, and then we’d go up on appeal on various parts of the case. So, unfortunately, litigation is a really slow way to bring about change in some respects. Because this law was passed and is in effect, we know that people are being harmed every single day, and it’s frustrating to have to wait for the courts to resolve such a critical question in people’s lives.

A North Carolina protester speaking out against the state’s voter ID laws this February. Photo by Susan Melkisethian.

Where are you based in North Carolina? Are you working out of the Capitol building, or are you traveling around the state trying to build support for this issue?

I’m actually based in New York, but the ACLU of North Carolina is based in Raleigh. And then, there’s so many organizations that are based in North Carolina that are mobilizing on the ground. In terms of the strategy for building pressure on the General Assembly in North Carolina, I think, we’ve seen rallies across the capital this week, because this is the week where the General Assembly actually convened their session. People were really showing up from across the country, and particularly the leadership from queer and trans people of color in North Carolina. So we saw a ton of organizing happening there. I’ve gone down to North Carolina to meet with folks to sort of figure out what’s going on, on the ground, and to find people who are affected by the law so that we can tell a story to the court.

The personal impact of this bill is really important. What is the story that you’re telling to the courts about this to get them to understand why bathroom access is an important issue?

We’re figuring out how to really center trans people in our conversations both to the public and to the court. I think for a long time, when we knew that there were laws that were impacting trans people or there was this anti-trans rhetoric, we didn’t really—in the LGBT movement—know how to really foreground trans people and trans storytellers in these conversations. So when we’re litigating a case that really is about a challenge to just the basic dignity of trans people’s lives, first and foremost, we have to talk to the court about who trans people are. So just explaining that a person who is trans deserves the same rights as anyone else. I mean, we’re talking from a very basic level so that the judge can feel some basic humanity and feel some shared sense of humanity with the trans community. And then, we’re talking a lot about the harms of laws that target trans people when accessing the bathroom, both with respect to being excluded from the bathroom itself as a site of discrimination and violence, but then also how, by pushing people out of the bathroom and having lawmakers talk about trans people in such a negative way, really pushes people out of public life all together.

So we’re really telling a story of harm that is about bathrooms at the center but also really talks about the inability of trans people to engage in public life because of these types of measures. Then, from the legal perspective, we’re making a number of constitutional claims basically arguing that it violates the equality protections under the federal Constitution, it infringes on people’s privacy in violation of the Constitution, and then it also is sex discrimination in violation of federal law.

       Read This Next: Debunking Five Right-Wing Myths That Fuel Bathroom Bills
       Read This Next: Douchebag Decree — The American Family Association

What surprises me is that states have passed protections for trans people’s access to public accommodations since 1993. There’s been pushback to those, and those laws have been very hard to pass, but over the past 20 years, we haven’t seen the kind of national right-wing fervor around these laws that we’re seeing now. Why do you think this is happening now? Or are we just paying more attention to discrimination that’s been going on for decades?

It’s a really good question: Why are we seeing this escalation of anti-trans rhetoric and proposed anti-trans laws? I think there’s clearly at least two things that are happening that are contributing to this, though as you know, we’ve been seeing pushback and discrimination against trans people for a very long time. But I do think, in the wake of the marriage equality decision from the Supreme Court in June, there’s an escalation in opposition from the forces that opposed marriage and other aspects of LGBT equality and justice. They’re doubling down on the bathroom rhetoric with respect to trans people because, in part, it was sort of like another tactic to undermine the same set of equality and justice goals that they saw in the marriage movement. And then, they had a big success in Houston defeating at the ballot, or repealing at the ballot, the Houston Equal Rights Ordinance in November. So I think that really propelled opponents of trans people and LGB people to really push forward with the strategy during these state legislative sessions. So that’s one aspect of what’s driving this. I think the other main one is just the increase in visibility of trans people. The more that we talk about trans people and situate trans people in the public discourse, the more we’re seeing this extreme backlash that’s very much grounded in maintaining traditional gender roles and investment in regulating and surveilling bodies that are seen as different or deviant.

I think we see a general strategy of trying to push people out of public life who are seen as different or as deviant. So certainly the tactics are very similar, and we see them over and over again. With marriage equality and the increase in trans visibility, we’re really seeing the confluence of so many factors this state legislative session, and it’s unfortunate because it’s really gonna be most harshly felt by the trans community, and then within the trans community, by trans women and trans women of color especially. So it’s really gonna be the most vulnerable people who are not experiencing any of the progress really receiving the brunt of the backlash.

It’s hard to tell what the mood is like in North Carolina from the outside. What does it feel like on the ground? What’s the feeling among LGBT activists and their allies on this measure? What kind of activism have you been seeing, and what has it felt like?

There’s the clear exhaustion and fear within the trans community of being targeted and feeling like there is a target on their back, particularly for trans feminine people, trans people of color. There’s this idea that there’s just an escalation of policing and that that’s a very scary, ongoing sense that really contributes to the things we know that the trans community experiences, which [are] incredibly high rates of violence, high rates of suicide attempts, and then for particularly black trans women, very high rates of incarceration. So this type of legislation really just heightens and escalates all the forms of policing and violence that trans people experience. And there is definitely that feeling. Not to mention that people are just like straight up not going to the bathroom, particularly people who are in school. That’s just a bad thing all around. And then, at the same time, there is just so much vibrance and so much resistance. And so many aspects of so many communities that are under attack, you see just absolutely incredible organizing: people showing up for each other, people staying out all night to protest what’s going on. So it is very mobilizing for the community at the same time that it’s very terrifying.

       Read This Next: Debunking Five Right-Wing Myths That Fuel Bathroom Bills
       Read This Next: Douchebag Decree — The American Family Association

by Sarah Mirk
View profile »

Sarah Mirk is the former host of Bitch Media’s podcast Popaganda. She’s interested in gender, history, comics, and talking to strangers. You can follow her on Twitter

Get Bitch Media's top 9 reads of the week delivered to your inbox every Saturday morning! Sign up for the Weekly Reader:

0 Comments Have Been Posted

Add new comment