Transgender rights plaintiff Payton McGarry on progress, perseverance

When a federal court released a settlement agreement in the lawsuit over transgender access to North Carolina restrooms earlier this week, Payton McGarry felt it was another step forward on a path of hard-won victories. But it also made him think deeply about how far the state and the nation has come on transgender issues — and how far they still have to go.

“Obviously it’s a marked step forward from where we were under HB2 and especially HB142, where we obviously had a lot of questions about what it meant for trans people,” said McGarry, a transgender graduate student from Greensboro who was one of the plaintiffs in the original HB2 lawsuit. “It’s good that I can go out and exist in more public spaces and not worry about what happens if I have to go to the bathroom.”

But McGarry hopes people won’t miss what he thinks is the larger and more sinister lesson of the HB2 saga — the state’s government moving to prevent local governments from passing non-discrimination ordinances more inclusive than those crafted by the Republican held General Assembly.

Payton McGarry

“Because HB2 was never about bathrooms,” McGarry said in an interview with Policy Watch this week. “It was really about dismantling systems of security for people of color, for poor people and for LGBTQ people.”

The real goal was to prevent wider protections in things like housing and employment discrimination, McGarry said — as seen in the creation of a state non-discrimination policy that didn’t include LGBTQ people even as the legislature passed laws to prevent local ordinances which did.

The settlement, part of the ongoing legal fight following 2016’s passage of House Bill 2, applies to public administrative agency buildings controlled by the executive branch. That includes state parks, historic sites and rest stops as well as most administrative offices in the state capital.

The settlement language prohibits the use of HB142 — the successor to HB2 — to “bar, prohibit, block, deter, or impede any transgender individuals from using public facilities under any Executive Branch Defendant’s control or supervision, in accordance with the transgender individual’s gender identity.”

Political pressure — including large scale business boycotts of the state — led to the repeal of HB2. But its successor, HB142, still gave the government the right to decide which restroom transgender people used and barred local non-discrimination ordinances dealing with the issue until the end of 2020.

Last year a federal judge ruled HB142 does not bar transgender people from using public restrooms and other facilities in accordance with their gender identity. Tuesday’s settlement doesn’t settle the question of HB2’s lawfulness during the period when it was made law in North Carolina. That question has been stayed pending several LGBTQ-related employment discrimination cases to be resolved by the U.S. Supreme Court.

The fact that bans on more inclusive local non-discrimination ordinances will hang on until at least 2020 shouldn’t be forgotten, McGarry said — and there’s always the danger the General Assembly will again move to prevent them after that provision in the law sunsets.

“As long as that’s still on those local governments, that they can’t pass their own non-discrimination policies, it’s a qualified victory for me,” McGarry said.

McGarry said the fight for local governments to be able to pass their own non-discrimination ordinances is another example of the current Republican majority wanting to prevent any ordinance anywhere in the state more progressive than they would want to see in the smallest and most conservative parts of North Carolina.

“Charlotte can’t pass an ordinance increasing its minimum wage,” McGarry said. “We all know the cost of living is not the same in Charlotte as it is in Wilson, North Carolina. How does that make sense?”

But crucially, McGarry said, the state and the nation have begun a cultural shift wherein LGBTQ issues and specifically trans rights and visibility are now at the forefront of conversations from individual kitchen tables to Washington D.C.

“If you look at where we were even five years ago in terms of visibility, we’ve obviously come a very long way,” said McGarry. “At the same time we still have a record number of trans women of color being killed because of who they are and we have a trans military ban we didn’t have…so in some ways it does sometimes feel like one step forward and one step back.”

McGarry aspired to join the military from a young age — a desire that has become more complicated with a ban on transgender people openly serving in the military under the administration of President Donald Trump. But it hasn’t disappeared, he said.

“One of the big reasons I joined the lawsuit over HB2, I didn’t hesistate to say I would join — the main reasoning behind that was, I wasn’t going to let the government tell me who I could and couldn’t be because I’m trans, what I could and couldn’t do because I’m trans,” McGarry said. “I feel the same way about the trans military ban. I’m not going to let the government tell me I can’t serve my country because I’m trans. And not just me — there are a lot of trans people out there who want to serve, who are willing to make that sacrifice. So hopefully we’ll get past this and be able to do that.”

In the meantime McGarry is studying conflict management with a focus on legislation and continuing to speak about his own experiences as a young trans person and the ongoing battle for LGBTQ rights.

“I can see and I can feel things changing,” McGarry said. “We’re going through a demographic change that is changing views on trans people, how trans people are allowed to represent themselves. What we’re going through now, I think, is going to seem to the next generation like that AIDS crisis did to LGBTQ people my age — an important part of our history we have to learn about and remember, but hopefully not something we have to go through again.”

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