Enforcement of the Public Facilities Privacy and Security Act (HB2) S.L.2016-3
I have received inquiries about enforcement of Part I of this law. These inquiries echo media and pundits who completely misunderstand and claim that the law is unenforceable.
Most new laws do not contain within themselves their own enforcement provisions. If they did, the General Statutes would require twice as many volumes on the shelf. Confusion would reign. New laws typically integrate change into existing enforcement provisions.
Federal District Judge Thomas Schroeder rejected the argument of the President of the UNC system, Margaret Spellings, that UNC would not enforce HB2 because it had no enforcement provisions. Judge Schroeder cited four different enforcement mechanisms. (1) second-degree trespass, GS 14 – 159.13. In the case of SMS 196 N.C. App 170 (2009) the Court of Appeals held that a 15 year old boy in the girls locker room was properly adjudicated of second-degree trespass. The label on the door was sufficient notice to him that he should not be there. This is undercut in some school systems by principals (and chancellors) who give permission to students to violate the law. It is probably a good defense to trespass if the person in charge of a facility authorizes a trespass. Judge Schroeder referred to this as “openly defying the law.” (2) the indecent exposure statute, GS 14-190.9(a); (3) the peeping statute GS 14 – 202(a)(d) and (4) university discipline of students who violate federal, state or local law.
In addition to these four enforcement mechanisms which Judge Schroeder mentioned, there are two others: (5) The state building code requires separate restroom facilities for each sex 2012 NC Building Code 101.2 (Intl Code Council, Inc 3d prtg 2014.) (6) I contend that under Title VII it would create a “hostile work environment” for an employer to maintain restroom or locker room facilities that are not differentiated by biological sex. That would be enforced by a claim for damages in civil court.
Representative Paul Stam
Speaker Pro Tempore