Several states in the United States and some parts of Canada have recently attempted to create legislation restricting how trans people can use public restrooms in schools and other public places.
Lambda Legal: FAQ About Restrooms & What to Do If You’re Hassled
Mother Jones has an excellent summary of some of the laws and where they originate: Get Ready for the Conservative Assault on Where Transgender Americans Pee:
The debate over which bathrooms transgender individuals can use isn’t particularly new: Lawmakers in 17 states and more than 200 cities have passed laws prohibiting discrimination based on gender identity, while a handful of states and localities, like Colorado and Arizona, have attempted and failed to pass bills that restrict bathroom usage.
But the latest attempts have the benefit of support from the Alliance Defending Freedom, a conservative legal advocacy group based in Arizona that has poured legal and lobbying resources into the issue over the past year. ADF, which has a $30 million annual budget and a network of some 2,000 attorneys, takes on many causes dear to the religious right, including opposition to LGBT rights like marriage, military service, and adoption. ADF’s defense of “religious freedom” has included a determined, years-long fight to make homosexuality illegal in Belize.
In December, after school districts in Minnesota, Wisconsin, and Rhode Island established nondiscrimination policies, ADF sent emails to school districts across the country. “Your school district may be facing an issue,” the email reads, “that an increasing number of school districts across the country are wrestling with: requests by students struggling with gender identity issues to use the bathrooms, locker rooms, or shower rooms of the opposite sex.” Schools are encouraged to adopt ADF’s model policy, which prohibits transgender students from using the restroom corresponding to their gender identity. If the school district encounters legal backlash, the letter says, ADF lawyers would take on the case, free of charge.
The “Alliance Defending Freedom” organization is also responsible for aiding the drafting and providing legal support for Indiana SB 101 – the RFRA “religious freedom” bill that will allow discrimination based on “religious belief” in Indiana.
More on the “Alliance Defending Freedom” from Think Progress: The 800-Pound Gorilla Of The Christian Right
Here are the bills in various states attempting to restrict bathroom access to trans people. Many of them had help in drafting, legal advice or financial aid from “Alliance Defending Freedom”.
According to The Advocate: Nevada Becomes 6th State to Introduce Transphobic Legislation This Year
Republican Assemblywoman Vicki Dooling proposed Assembly Bill 375 earlier this month, targeting transgender students in public schools using the restrooms and locker rooms that match their gender identity, reports Zack Ford at ThinkProgress.
The Nevada bill follows on the heels of similar laws targeting trans students proposed in Texas, Minnesota, and Kentucky (the latter of which recently failed), as well as laws proposed in Florida, Texas, and Missouri that would bar trans citizens from using bathrooms that accord with their gender identities in public spaces.
Responding to similar legislation introduced around the country this year, trans advocates nationwide have pointed out that separate facilities stigmatize trans youth, while defining a bathroom user’s gender solely on anatomy — including the impractical approach of checking chromosomes — fails to achieve the bills’ commonly stated purpose of protecting student safety and privacy. In such scenarios, trans students could easily find their own privacy violated, while research has shown that it is trans people who are far more likely to face physical or verbal violence in a restroom, as compared to their cisgender (nontrans) peers.
Current status of the law: Died in the legislature
The bill: Under Florida HB 583, transgender people would be criminalized and given a misdemeanor of the first degree if they use a restroom inconsistent with their “biological” sex. It compels employers to discriminate against their own employees, invalidates the internal human resource policies of public and private companies, and places undue burden on business by laying the groundwork for costly litigation. It would also give non-transgender people a right to sue if they used a bathroom with a transgender person.
Current status of the law: On Thursday, March 19, the bill was placed in the Florida House Judiciary Committee. It awaits further reading. UPDATE: Bill died in the legislature
Texas HB 2801, introduced by state Rep. Gilbert Pena, R-Pasadena, requires “only persons of the same biological sex may be present at the same time in any bathroom, locker room, or shower facility in a building owned by the district.”
The Texas bill — one of 11 introduced this session, according to the TowleRoad — would also allow students to sue for $2,000 plus associated legal costs if transgender students are found in the “wrong” facilities.
TowleRoad rightly called this the equivalent of “the bill…placing a bounty on the heads of transgender students.”
Current status of the law: 3/18/2015 House Referred the bill to State Affairs Committee.
The “Kentucky Student Privacy Act,” introduced by State Senator C.B. Embry Jr., R-Morgantown requires students to use bathrooms designated for the “biological sex” of their birth. Additionally, students who “encounter a person of the opposite biological sex in a bathroom or locker room” can sue schools for $2,500 “if staff have allowed it or failed to prohibit it,” reports The Courier-Journal. It incentivizes students to monitor where transgender classmates use the restroom by offering what amounts to a $2,500 bounty.
Current status of the law: Pass through senate and is stuck in House committee; not expected to pass out of committee. For more info: Fairness.org. UPDATE: legislators tried to attach the bill as amendments at the end of the session but were defeated.
Like Texas, Minnesota has seen several bills introduced related to schools and lockerooms and bathroom facilities. One bill was introduced once in the Senate (SF 1543) and twice in the House (HF 1546) as a response to the Minnesota State High School League’s decision on transgender students in December to allow trans women to use the same hotel, locker room, and shower facilities as cis women.
Current status of the laws: SF 1543 – the motion did not prevail: the bill is dead. HF 1546 was referred to committed on march 9th and hasn’t proceeded further.
UPDATE: The bill died in the Senate.
Via The Advocate: Missouri Has A New Way to Keep Trans Folks from Using the Bathroom
Missouri’s HB 1338, would require all public restrooms that were not single-occupancy to be gender-divided, while HB 1339 would disallow state revenue to be used towards creating “a gender-neutral environment” unless required by a federal or state court order. The idea here is to get ahead of a current movement to provide some gender-neutral bathroom facilities that would make trans people more comfortable, as they have on several college campuses like the University of California and University of Texas-Tyler.
Current status of these laws: Hearing not scheduled, bill currently not on a House calendar
13-year-old trans teen in Boise, Idaho is speaking out after parents at her middle school withdrew their daughter from classes over the trans girl’s decision to use the girls’ restroom. KBOI Channel 2 reported that D.W. Trantham said she never intended to disrupt anyone’s lives with her decision.
When the Canadian senate introduced a bill (Bill C-279) to add gender identity to those protected from from discrimination, conservatives attempted to amend that bill by limiting what public restrooms trans and gender diverse people could use. Sen. Donald Plett, a Conservative member of the standing committee, proposed during the meeting on Wednesday that the legislation be amended to exclude federal “sex-specific” facilities like crisis facilities, washrooms, changing rooms and correctional facilities.
Current status of the law: Delayed in the Canadian Senate, due to the amendment, as of March 10, 2015
What’s the likelihood of Indiana adopting similar laws?
The fact that many of these bills are stuck in committee in the various states and as of now don’t seem to be moving to a place where they will pass into law seems like a good sign. However, the fact that Indiana SB 101 will pass, allowing discrimination on the basis of religion, is a very bad sign. RFRA bills have been introduced in several other states and have been turned back and died in committee. Given that RFRA and the ‘war on transgender places to pee’ come from the same organization there is cause for alarm in Indiana, since they may now see Indiana as fertile ground to pass a bill that has been turned back elsewhere.
Combatting these laws
Several trans people have stepped up to speak out against these laws through social media campaigns intended to highlight the absurdity of trying to gender-police public restrooms.
To protest the Canadian amendment that would affect her, trans woman Brae Carnes began posting a series photos of herself in men’s restrooms (some holding a sign that says “Plett put me here”) to illustrate the absurdity of what the end affect of the amendment would be.
Michael Hughes, a trans man in Minnesota who would be affected by the laws in his state, helped boost the #wejustneedtopee campaign with photos of himself in women’s restrooms.
Though the #wejustneedtopee movement is bringing some much needed visibility to trans people (especially trans men) there are some difficult details to consider. Trans writer and activist Marcy Cook wrote a long and thoughtful post on passing the pitfalls of the #Occupotty movement:
Within transgender culture, there are the haves and have nots; I’m on the edge of transgender culture, as I don’t pass, and it matters to me. I’d need to make a confession regarding my response to the trans restroom trend #occupotty: I’m jealous, ridiculous, depressive, whiny, angry and selfish. I think the transgender restroom selfie idea is great; it will actually influence lawmakers who are ignorant of transgender topics and only see the world as binary male/female. Those that declare genitals and chromosomes as the only sex markers that matter (even though in nature neither genitals or chromosomes are binary) are ignorant. “Let’s not let pesky science get in the way, hoist those pitchforks! Seriously Nigel, hoist the pitchfork higher or you’ll stab Steven. Oh, Nigel.”
But I see these perfectly passing men and women taking selfies in restrooms and I want to yell about how unfair it is. They won’t be hassled in restrooms anyway, because they pass. I don’t think it is likely that a cis man in a restroom is going to approach a guy with a beard and say “Hey, I like your bushy beard and all, but I suspect you are actually female and thus I am compelled to beat you up now for the sake of the patriarchy.” The same goes for perfectly passing trans women. It’s not the small percentage of trans people that pass that have the majority of issues in public spaces.
After all, passing is called “going stealth” for a reason. The US didn’t invent the Stealth Bomber and say “You know what this needs? More cow-bell.” People who can be “stealth” are in a lot less danger as they navigate cis spaces. It’s still dangerous, of course, and getting outed can have life-threatening consequences; but it’s not the same experience as those whom Gandalf stopped from passing. Some people don’t want to pass; others are unable to take HRT and cannot pass; yet more of us take HRT and still won’t pass. At some point we need to address the societal pressure to appear cisgender.
Brooks has an important point, and all of these laws turn upon it – the severe division between genders in our society leaves many trans and gender-diverse people vulnerable in highly gendered spaces that are publicly-accessible but contain an element of private behavior. Providing safe spaces for everyone: adults, children, cis, trans and gender-diverse, requires society to be compassionate about people’s immediate and not-negotiable needs, and realistic about the true dangers — Predatory men are extremely unlikely to try to access women’s private spaces to carry out abuse when they can do so more easily in many other areas, while trans people are vulnerable to bigotry and violence in private spaces.
Optional gender-neutral private spaces are one way of making the vulnerable more comfortable. But ultimately, society must come to recognize that not all people fit a strict gender binary and not all people appear “male” or “female” – and that should be okay.