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NC Lt. Gov. Dan Forest, right, talks with Republican legislative leaders Sen. Phil Berger, left, and Rep. Tim Moore, second from left. News & Observer photo. NC Lt. Gov. Dan Forest, right, talks with Republican legislative leaders Sen. Phil Berger, left, and Rep. Tim Moore, second from left. News & Observer photo.

NC Lt. Gov. Dan Forest, right, talks with Republican legislative leaders Sen. Phil Berger, left, and Rep. Tim Moore, second from left. News & Observer photo.

By Will Doran February 17, 2017

NC's Dan Forest wrongly claims Gov. Roy Cooper will create 'Look But Don't Touch' bathroom policy

After Gov. Roy Cooper introduced a proposal repealing House Bill 2, one of the law’s biggest supporters spoke up.

Republican Lt. Gov. Dan Forest – who has already announced he wants to run for governor in 2020 – said Cooper’s strategy to repeal HB2 "will risk the safety of our people to achieve a radical social policy agenda."

HB2 said people can only use the bathrooms of their birth gender (not their gender identity), and it banned cities and counties around North Carolina from creating rules related to bathroom access or discrimination protections for LGBT people, or raising the minimum wage.

We previously found that there’s no real history of safety problems associated with transgender-friendly bathroom rules. However, Forest’s claim doubled down on such concerns.

"If Governor Cooper's proposed bill for repealing HB2 becomes law, it will create a state-sanctioned 'Look But Don't Touch' policy in our bathrooms," Forest said in a written statement. "Heterosexual men will be able to access women's showers and bathrooms by simply posing as a transgender individual. They will be able to watch women and children shower, or shower next to them. As long as the man doesn't touch them, assault them or film them, no legal protection would be afforded the offended woman or child. Nothing."

That’s a shocking claim. We found it’s also not based in reality.

What happens if HB2 gets repealed

We should note one thing right off the bat: Forest issued his statement on Cooper’s bill before the bill was filed, basing his claim simply off what Cooper said in a press conference.

That means we won’t use the bill itself to examine Forest’s claim. Instead, we’ll use the facts that existed at the time – including that Cooper had proposed repealing HB2 and strengthening criminal penalties for certain crimes committed in bathrooms.

His statement implies Cooper proposed letting transgender people use the bathroom of the gender with which they identify. That’s not true. In reality, Cooper suggested a return to the status quo that North Carolina used for centuries, in which there were no laws about bathroom access.

We asked Forest spokesman Jamey Falkenbury if Forest thought that North Carolina had a "state-sanctioned ‘Look But Don’t Touch’ policy" for all that time. Falkenbury said Forest was instead making the assumption that, once HB2 is repealed, cities and counties will rush to pass transgender-friendly bathroom rules.

We can’t see the future, and neither can Forest, although Falkenbury did correctly point out that "with HB2 repealed there would be no legal mechanism to block those ordinances."

Yet even if that did happen the decision is up to local governments, and the rules would only apply locally. That’s hardly a "state-sanctioned" policy, contrary to Forest’s claim.

Law enforcement doesn’t lack power

We looked into legal protections for two different possibilities: What powers law enforcement will have under the situation Cooper actually proposed, as well as under the situation Forest believes might happen.

That first one is easy.

There are a number of laws the state can use to protect people from the kinds of acts Forest described. There might be more, but at least six could apply: Trespassing, stalking, breaking and entering, indecent exposure, secret peeping and sex offender restrictions.

And since HB2 contains no civil or criminal penalties for violations, repealing it wouldn’t take away any legal protections.

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If the sexual predators in Forest’s scenarios are also convicted sex offenders, the state has laws to give them additional punishments for re-offending, or even for simply being near places kids go – including pools, schools and other places with the kind of shared facilities Forest is worried about.

And in 2015, before HB2 passed, UNC-Chapel Hill law professor Jeff Welty wrote about what could happen to people go into the wrong bathroom. Welty said there’s "a strong argument" for trespassing and "a reasonable argument" for breaking and entering.

He also cited a 2008 trial in which a 15-year-old boy in Greenville was convicted of trespassing for barging into his school’s girls’ locker room. The boy was also charged with secret peeping but wasn’t convicted, as he was anything but secretive in causing a scene.

So all that debunks one of Forest's concerns, of a man watching women undress with no legal consequences if HB2 is repealed. There absolutely would be legal protections. And Forest’s more extreme scenario, of men being able to undress or shower with women, is even more ludicrous. North Carolina’s indecent exposure law would apply, and would lead to felony charges if children were present.

Trying to see the future

But what about if a city took advantage of the HB2 repeal and allowed transgender people to use the bathroom of the gender with which they identify? Let’s examine the possibilities.

We began by asking why Forest ignored Cooper’s proposal for stronger penalties for bathroom crimes. That was intended as an olive branch to Republicans; it also caused the liberal, pro-LGBT groups Human Rights Campaign and Equality NC to oppose Cooper’s proposal.

Falkenbury said it’s because Forest believes those laws would become meaningless. If a man claimed he was feeling like a woman at that particular moment in time, Falkenbury said, the law would be powerless to stop him.

Again, we should point out Cooper never proposed allowing transgender people into restrooms based on their gender identity – and he has refused to publicly support other Democrats’ proposals to do so – but we’ll look into it anyway.

Forest can’t possibly have any North Carolina-specific proof, since nowhere in the state has ever had transgender-friendly bathroom rules (Charlotte tried to, but HB2 became law first).

But Falkenbury did point to an incident in Seattle, which does have transgender-friendly bathroom rules, in which a man walked into a women’s locker room at a pool. People complained, and he was kicked out of the locker room by pool staff despite claiming he had the right to be there.

But that example actually goes against Forest’s point, since the man was removed. And the Washington Human Rights Commission, a part of the state government, reaffirmed the decision to kick him out.

"If a business has a reasonable belief that a person is in the wrong place, there is no rule that states that the person cannot be questioned and required to leave," the commission said.

The man in that situation was never charged with any crimes, but neither we nor Forest can say what might happen in a similar case in North Carolina. There’s simply no precedent here.

But Forest’s more worrisome scenario, in which a man undresses or showers with women consequence-free, is clearly implausible. Even in a hypothetical North Carolina city with a transgender-friendly bathroom rule, that would absolutely be illegal.

The state law against indecent exposure gives only one exception: If the nudity occurs someplace where it's incidental (like a locker room) and it happens in front of only people of the same sex. Since local ordinances can’t override state law, no city’s bathroom rules could change that fact. The law only cares about anatomy, not gender identity.

Our ruling

Lt. Gov. Dan Forest said that Cooper’s HB2 repeal bill, if it passes, "will create a state-sanctioned 'Look But Don't Touch' policy in our bathrooms" with no laws in place to protect women from predatory men.

In reality, there are at least half a dozen laws protecting people from the type of scenarios Forest wrongly said would become consequence-free. Cooper even suggested creating stronger penalties for some of them.

Forest defended his claim by saying cities would start letting transgender people in bathrooms of the gender with which they identify. That's not what Cooper proposed, however. And even if it does happen, it’s a local government decision, not a "state-sanctioned" policy. And even in that case, one of Forest’s hypothetical concerns is clearly baseless, and the other is unclear at best.

We rate this claim Pants On Fire!

Our Sources

The News & Observer, Feb. 14, 2017, video, "Cooper offers compromise HB2 repeal proposal"

PolitiFact North Carolina, April 1, 2016, "Equality NC director: No public safety risks in cities with transgender anti-discrimination rules"

UNC-Chapel Hill law professor Jeff Welty, School of Government article, May 6, 2015, "Is it illegal for a man to use the ladies’ room?"

Case of Greenville teen who trespassed in girls’ locker room, conviction upheld by the N.C. Court of Appeals

The News & Observer, Feb. 14, 2017, "Gov. Roy Cooper’s proposed HB2 compromise doesn’t seem to please either side"

The News & Observer, Feb. 13, 2017, "In HB2 repeal effort, Gov. Cooper is silent on proposed nondiscrimination law"

PolitiFact North Carolina, April 28, 2016, "N.C. NAACP president says 80 percent think the minimum wage should be $10 or more"

Bill containing Roy Cooper’s HB2 repeal proposal, as filed by House Democratic Leader Darren Jackson, "Common Sense Compromise to Repeal HB 2"

USA Today, Feb. 17, 2016, "Seattle man tests transgender rule by undressing in women's locker room"

KOMO-TV News, Feb. 17, 2016, "Man found in women's locker room cites new transgender bathroom rule"

Bellingham Herald, Feb. 26, 2016, "No, men can’t enter women’s locker rooms, state agency behind transgender rule says"

N.C. General Statute 14-190.9, "Indecent exposure"

N.C. General Statute 14-208.5, "Sex Offender and Public Protection Registration Programs"

N.C. General Statute 14-202, "Secretly peeping into room occupied by another person"

N.C. General Statute 14-54, "Breaking or entering buildings generally"

N.C. General Statute 14-277.3A, "Stalking"

N.C. General Statute 14-159.11, "First and Second Degree Trespass"

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NC's Dan Forest wrongly claims Gov. Roy Cooper will create 'Look But Don't Touch' bathroom policy

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