Bathroom bill

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A bathroom bill is the common name for legislation or a statute that defines access to public toilets (restrooms)—by transgender individuals. Bathroom bills affect access to sex-segregated public facilities for an individual based on a determination of their sex as defined in some specific way—such as their sex as assigned at birth, their sex as listed on their birth certificate, or the sex that corresponds to their gender identity.[1] A bathroom bill can either be inclusive or exclusive of transgender individuals, depending on the aforementioned definition of their sex.

Critics of bills which exclude transgender individuals from restrooms which conform to their gender identity argue that they do not make public restrooms any safer for cisgender (non-transgender) people, and that they make public restrooms less safe for both transgender people and gender non-conforming cisgender people.[2][3][4] Additionally, critics claim there have been no cases of a transgender person attacking a cisgender person in a public restroom,[2][5] although there has been at least one isolated incident of voyeurism in a fitting room.[6] By comparison, a much larger percentage of transgender people have been verbally, physically, and sexually harassed or attacked by cisgender people in public facilities.[7] For these reasons the controversy over transgender bathroom access has been labeled a moral panic[8] and compared to the antisemitic blood libel.[9]

Proponents say such legislation is necessary to maintain privacy, protect what they claim to be an innate sense of modesty held by most cisgender people, prevent voyeurism, assault, molestation, and rape,[10] and retain psychological comfort.[11][12]

One bathroom bill, the Public Facilities Privacy & Security Act in North Carolina, was approved as a law in 2016, although portions of the measure were later repealed in 2017 as part of a compromise between the Democratic governor and Republican-controlled Legislature.

Also in 2016, guidance was issued by the U.S. Departments of Justice and Education stating that schools which receive federal money must treat a student’s gender identity as their sex (for example, in regard to bathrooms).[13] However, this policy was revoked in 2017.[13]

Public perception

Public opinion regarding "transgender bathroom rights" in the United States is mixed, see summary table below.

Date(s) conducted Support laws that require transgender individuals to use bathrooms that correspond to their birth sex Oppose laws that require transgender individuals to use bathrooms that correspond to their birth sex Don't know / NA Margin of error Sample Conducted by Polling type
May 3, 2017 – May 7, 2017 48% 45% 7% 4% 1,011 adults American adults Gallup Cellphone and landline phones
March 2017 40% 40% ? ? YouGov ?
February 10, 2017 – February, 19, 2017 39% 53% 2.6% 2,031 adults Public Religion Research Institute Live interviews via RDD telephones and cell phones
August 16, 2016 – September 12, 2016, 2016 46% 51% 3% 2.4% 4,538 respondents Pew Research Web and mail
May 4, 2016 – May 8, 2016 50% 40% 10% ? ? Gallup ?
June 3, 2015 – June 4, 2015 46% 41% 12% 4.1% 1,300 unweighted respondents CBS / NYT ?
April 28, 2016 – May 1, 2016 38% 57% 5% 3% 1,001 adults CNN / ORC International Live interviews via landline telephones and cell phones
March 26, 2016 – March 28, 2016 37% 37% 26% 4% 1,000 adult American citizens YouGov Online interviews
June 3, 2015 – June 4, 2015 38% 37% 25% 4.1% 994 American adults Huffington Post / YouGov ?

Opposition

Critics of bathroom bills have argued that they place transgender people in danger without making cisgender people any safer and that they even make things more dangerous for gender non-conforming cisgender people.[2][3] The UCLA's Williams Institute has tracked prevalence of crimes in bathrooms since the passage of various protections for the transgender population and has found that there has been no significant change in the number of crimes.[14] Marcie Bianco, writing for Mic, pointed out that there is not a single documented case of a transgender person attacking a cisgender person in a public restroom.[2] Writing for Patheos, Terry Firma argued that there have been more Republican politicians arrested for sex acts in bathrooms than transgender people.[4] The controversy has been labeled a moral panic,[8] and Dan Savage went so far as to call it an "anti-trans blood libel".[9]

According to the largest U.S. survey of transgender people ever undertaken, carried out by the National Center for Transgender Equality (NCTE) in 2015 with 27,715 respondents, one percent of respondents reported being sexually assaulted in a public restroom for being transgender. Twelve percent reported being verbally harassed in a public restroom, and another one percent reported being non-sexually physically assaulted for being transgender. Nine percent reported being denied the right to use a public restroom consistent with their gender.[7] The NCTE acknowledges that in its report that this survey was undertaken before any bathroom bills had been passed or were in the news.[7]

By country

Canada

In Canada, the New Democratic Party (NDP) has introduced several bills that tried to include gender identity and gender expression among the characteristics protected from discrimination and eligible to be considered in sentencing crimes motivated by hate.[15] These bills were frequently referred to as "bathroom bills" by their critics as they would have allowed transgender individuals to use the public facilities corresponding to their gender identity.

In 2009, NDP MP Bill Siksay introduced Bill C-389 to the 40th Parliament.[16] The bill was passed by the House of Commons in 2011 but was defeated by the Senate.[17]

Bill C-279, introduced to the 41st Parliament in 2011 by NDP MP Randall Garrison, was passed and sent to the Senate in March 2013.[18] In 2015, Senator Don Plett introduced three amendments to the bill, one of which exempted public washrooms and changerooms from the bill's protections.[19] The bill was also ultimately defeated in the Senate.

Garrison re-introduced the bill to the 42nd Parliament as Bill C-204.[20]

Bill C-16, a similar bill to the NDP bills, was intruded on May 17, 2016 by Federal Minister of Justice Jody Wilson-Raybould to the 42nd Parliament. The bill passed the legislative process in the House of Commons and the Senate, and became law upon receiving Royal Assent on June 19, 2017, coming into force immediately.[21][22][23]

United States

"Trans bathroooms never killed anyone!" sign at March for Our Lives (2018)

In a landmark 2013 case, the Colorado Civil Rights Division ruled in favor of 6-year-old transgender student Coy Mathis to use the girls' bathroom at her elementary school. It was the first ruling of its kind in the United States and one of the first high-profile transgender rights cases, garnering huge amounts of media attention.[14]

In May 2016, the United States Department of Justice and the United States Department of Education released a joint guidance on the application of Title IX protections to transgender students.[24] The guidance stated that for the purpose of Title IX, the Department of Justice and the Department of Education treat a student's gender identity as their sex. The guidance was followed by a formal "Dear Colleague" letter on May 13.[25]

In October 2016, the U.S. Supreme Court agreed to take up the case of Gavin Grimm, a transgender male student who was barred from using the boys' bathrooms at his high school in Gloucester County, Virginia.[26] The U.S. Court of Appeals for the 4th Circuit had previously ruled that Grimm could use these restrooms, but the Supreme Court stayed that decision in August.[27]

Alaska

Anchorage, Alaska prohibited discrimination based on gender identity in 2015.[28] In 2017, Alaska Family Action proposed a direct initiative bathroom bill that would overturn protections for transgender individuals, which will be voted upon as Proposition 1 in April 2018. The proposition would make it legal for "any employer, public accommodation, or other person to establish and enforce sex-specific standards or policies concerning access to intimate facilities such as locker rooms, showers, changing rooms, and restrooms." The measure defines the term sex as "An individual's immutable biological condition of being male or female, as objectively determined by anatomy and genetics at the time of birth."[29] The bill was voted down.[30]

Alabama

A bathroom bill was introduced in Alabama on February 7, 2017 by state Senator Phil Williams.[31] The bill, if passed, would require attendants to be present in mixed-gender public bathrooms to ensure that no crimes are committed there.[32]

Arizona

A 2013 proposed amendment to Arizona bill S.B.1432 would have allowed police to demand identification from anyone suspected of using the 'wrong' public bathrooms or showers, meaning the facilities assigned to the sex not matching the sex on their birth certificate. If found guilty, a person would have been subject to up to 6 months in jail and a $2500 fine under a disorderly conduct charge.[33][34] The proposal was withdrawn by its sponsor, John Kavanagh.[35][36]

California

AB 1266, also known as the “School Success and Opportunity Act,” was introduced by Assemblyman Tom Ammiano on February 22, 2013. It requires that pupils be permitted to participate in sex-segregated school programs, activities, and use facilities consistent with their gender identity, without respect to the gender listed in a pupil’s records. AB 1266 was approved by Governor Brown on August 12, 2013.

In September 2016, California Governor Jerry Brown signed a bathroom bill that mandates single-occupancy public bathrooms be gender-neutral in order to enable easier access for transgender people. The law went into effect on March 1, 2017.[37][38][39]

Colorado

In Colorado, in February 2015, a bill died in committee that proposed banning transgender people from using changing rooms of their gender identity.[40] This bill would have prevented discrimination lawsuits against facility managers who chose to deny entry into facilities to transgender people.

Florida

A bathroom bill was introduced in Florida in the spring of 2015 as H.B. 583 by Representative Frank Artiles.[41][42] Artiles complained that, under laws protecting transgender use of restrooms, "A man such as myself can walk into the bathroom at LA Fitness while women are taking showers, changing, and simply walk in there." His bill would have made it illegal for transgender people to use bathrooms corresponding to their gender identity in restaurants, workplaces, or schools. The consequences would be up to a year in jail and a $1,000 fine.[43][44][45] Proponents claimed that the bill was designed to prevent "assault, battery, molestation, rape, voyeurism, and exhibitionism".[10] Opponents claimed that the only purpose was to be "discriminatory" and to "criminalize [transgender people] for simply going about their daily lives".[46] The bill went through two House committees, but did not pass.[47] There were no further bathroom bills filed in the Florida state legislature in 2015 or 2016, but organizations like Equality Florida said in 2017 that they were preparing for the possibility of future bills.[42]

Kentucky

A 2015 proposal in Kentucky would have allowed students to sue their school if they encountered transgender students using the bathroom corresponding to the gender with which they identify. It would have allowed transgender students instead to request special accommodations, including access to single-stall or faculty restrooms.[48][49] On February 27, 2015, the bill S.B. 76 passed in the Kentucky Senate,[50] but it did not pass the Kentucky House.[41]

Minnesota

A bathroom bill was introduced in Minnesota in 2016.[41][51]

Missouri

Two bathroom bills were introduced in Missouri in 2017.[52]

Nevada

On March 19, 2015, Victoria Dooling, a Nevada state representative, proposed a bathroom bill that would apply to public schoolchildren in the state.[53] It later died in committee.[54]

North Carolina

Waterborne protest opposing HB-2

On March 23, 2016, North Carolina Governor Pat McCrory (R) signed into law the Public Facilities Privacy & Security Act (commonly known as House Bill 2). The law states that in government buildings, individuals (such as students at state-operated schools) may only use restrooms and changing facilities that correspond to the sex identified on their birth certificates. Transgender persons born in North Carolina can obtain modified birth certificates on which their sex is different than what was originally identified at the time of their birth, but only if they have undergone sex reassignment surgery.[55] For those born in other places, the ability to change the sex listed on a birth certificate is governed by their place of birth (which may have substantially different requirements, and in some cases may not allow such changes).[55]

The bill also overturns an LGBT anti-discrimination ordinance that had been passed by Charlotte, North Carolina, prevents local governments in the state from enacting similar ordinances, and prevents cities from raising their minimum wages higher than that of the state.[56]

On August 26, 2016, a U.S. District Court judge granted a preliminary injunction, preventing the University of North Carolina from enforcing the restroom provisions of the bill.[57]

On March 30, 2017, the legislature partially repealed House Bill 2, removing the restrictions on restroom use by transgender individuals. The compromise agreement was criticized by both LGBT rights groups and conservatives.[58]

South Carolina

In April 2016, Sen. Lee Bright brought a bill (S. 1203) to the South Carolina Senate, that was essentially the same as North Carolina's HB2.[59] The bill would block local governments from passing anti-discriminatory ordinances such as: the use of public bathrooms by gay, lesbian, bisexual, and transgender individuals.[59] Senator Bright's bill would maintain that public bathrooms be used in accordance to "biological sex." [59] An online poll taken from a news site stated that 75% of voters did not think the bill was necessary.[59] The legislation failed to meet the crossover deadline for bills to pass from one legislative chamber to the other.[60]

In December 2016, a similar bill was introduced by Rep. Steven Wayne Long in the South Carolina house. (H. 3012)[61]

South Dakota

On February 16, 2016, the South Dakota Senate voted 20-15 to approve a bathroom bill that, had it passed, would have been the first in the country to require public schoolchildren to use facilities that match the sex they were assigned at birth.[62] On March 1, 2016, the governor of South Dakota, Dennis Daugaard, vetoed the bill.[63] Early in the 2017 legislative session Republican Sen. Lance Russell refiled the bathroom bill but on January 30 he withdrew the bill because of GOP Gov. Dennis Daugaard again promised a veto.[64]

Tennessee

On April 6, 2016, the Tennessee House Education Administration and Planning Committee, which is part of the Tennessee House of Representatives, approved a bathroom bill that would apply to public schools and colleges in the state and would require students to use a restroom that corresponds with their sex as identified at birth.[1][65] Before the bill could proceed further, the house sponsor of the bill decided to delay its consideration for a year to allow for further investigation, citing concerns that it could interfere with Title IX funding.[65] In 2017, the bill was re-introduced, but died in the Senate Education Committee.[66]

Texas

Public opposition to SB6 in the State Capitol

A bill introduced to the Texas House of Representatives in March 2015 proposes to award any student in a school who can prove that another student who does not identify with their "biological sex" was using a public facility at the same time damage reparations in the form of $2000 for any "mental anguish" that may have been caused them. The school itself would also be liable for any knowledge of a transgender student using their gender identified restroom and for failing to take action against said use.[67][68] Another bill, introduced to the Texas House in February 2015, suggests that anyone over the age of 13 years found to be in a public restroom of a gender not their own should be charged with a Class A misdemeanor, spend up to a year in jail, and face a $4000 fine.[69] Under this proposed bill, building managers who repeatedly and knowingly allow transgender individuals to use the facility of their gender identity would also face a fine of up to $10,000.[70]

Several bills were filed in both the regular legislative session and first special session of the Texas Legislature in 2017. Championed by Lt. Governor Dan Patrick, the Texas Senate passed SB6 in the regular session and SB3 in the Special Session by a vote of 21-10 largely along party lines (Senator Eddie Lucio Jr. was the only Democrat to vote in favor of each bill). SB6 limited bathroom access based on the sex listed on one's birth certificate while SB3 would allow an individual to use the restroom listed on several state IDs as well (ex. driver's license, concealed carry license).[71][72]

Although SB6 received a hearing in the State Affairs committee in the Texas House, neither SB6 or SB3 made it to the House floor, so a vote never took place in either bill's case. The Speaker of the Texas House Joe Straus voiced his opposition to the bills, citing the economic impact that North Carolina saw while HB2 was law. He was also quoted by a New Yorker article as saying, "I'm disgusted by all this. Tell the lieutenant governor I don't want the suicide of a single Texan on my hands."[73]

Vermont

On May 11, 2018, Vermont Gov. Phil Scott signed a bill requiring all single-user public restrooms to be gender-neutral.[74]

Virginia

In 2016, Del. Mark Cole sponsored House Bill 663, a bathroom bill restricting public restroom use according to a person's "anatomical sex", defined as "the physical condition of being male or female, which is determined by a person's anatomy", with violators liable for a civil penalty not to exceed $50. HB663 was introduced on January 11, 2016 and died in committee in February 2016.[75] It was widely reported that HB663 would require adults to inspect the genitals of children before they were allowed to enter the appropriate facilities, but this was dismissed by Snopes as a misleading interpretation of the bill's text,[76] which states that administrators "shall develop and implement policies that require every restroom ... that is designated for use by a specific gender to solely be used by individuals whose anatomical sex matches such gender designation."[75] Cole sponsored House Bill 781 one day later on January 12, 2016, which used the same wording but substituted "biological sex" for "anatomical sex". The use of "biological sex" allowed for an update via amended birth certificate. HB781 also died in committee in February.[77]

In early 2017, HB1612, proposed by Republican Bob Marshall would use the "born sex" to define which restroom, changing facility, or private area in government buildings was permitted for a given individual.[78] In HB1612, it also stated that individuals that did not use the bathroom of their born sex would be subject to civil action. Additionally, HB1612 required school principals to inform the parents of a child if the child did not wish to identify as their born sex. The bill was killed in subcommittee on January 19, 2017.[79]

Washington

In early 2015, SB 6548, which would prevent transgender individuals from using the bathroom associated with the gender with which they identify was introduced in the senate but failed to pass.[80] In December 2015, Washington State's Human Rights Commission enacted a rule that allowed transgender individuals to use bathrooms conforming with their gender identities. Early in 2016, a bill to overturn the ruling (SB 6443) was voted on in the state Senate, and defeated by a margin of 25-24.[81] An attempt to put a state voter initiative on the November 2016 ballot, I-1515, failed to reach the number of signatures necessary to appear on the ballot.[82] On December 5, 2016, a new bill, HB 1011 was pre-filed in the Washington State House. This bill would prevent transgender individuals from using a bathroom of their gender identity unless they have had sex-reassignment surgery, and would prevent local municipalities from enacting ordinances contradicting the directive.[83]

Wisconsin

In November 2015, Wisconsin held a hearing on a bathroom bill to require public schoolchildren to use facilities that match the sex they were assigned at birth. According to critics, the bill would also violate the federal government's Office for Civil Rights's 2014 statement that federal nondiscrimination law covered gender identity. The following month, the bill was revised to allow public schools to offer gender-neutral bathrooms.[84][85]

See also

References

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  3. ^ a b King-Miller, Linday (April 12, 2016). "Stop Using Women's Safety to Justify Transphobia". 
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