The new year was barely a few days old before “bathroom bills” started popping up in state legislatures around the country.
Despite the political and economic smack-down that North Carolina experienced last year after passing its own effort to restrict public restroom rights for transgender people, more states might be following suit this year.
North Carolina Gov. Pat McCrory, a Republican, lost his re-election bid and his state lost millions in corporate and cultural investment after the Republican-led Legislature ignited a civil liberties debate over the right to use a public restroom.
The state became the target of widespread opprobrium. Multimillion-dollar brands from business, sports and entertainment, like PayPal, Bruce Springsteen and the NBA, backed out of events in North Carolina to avoid the bad publicity.
Public and corporate sentiment seemed pretty clear. But some state lawmakers around the country took away a different lesson.
“We don’t need government in our bathrooms,” said Missouri state Rep. Josiah Magnuson, sponsor of a bathroom bill in the Missouri House of Representatives.
The North Carolina law is tied up in the courts. But that hasn’t stopped lawmakers like Magnuson, as well as colleagues in Alabama, Kentucky, Minnesota, South Carolina, Texas, Virginia and Washington state, all of whom have anti-transgender bathroom bills in their legislative hoppers.
Generally, the measures require that transgender people either use public restrooms that match their biological genders – and not the genders that they identify with ‑ or single occupancy facilities.
And those states are just the beginning, say activists on both sides of the so-called “bathroom bill” controversy.
“I expect we will see more of this as legislators are responding to their constituents, so we don’t have municipalities up-ending years of tradition of restrooms based on biological sex,” said Richard Mast, litigation counsel for Liberty Counsel, a First Amendment and religious liberties advocacy group that has been involved in some of the “bathroom law” cases. “It’s almost weekly we get a call from some school district.”
The issue will get a high-profile airing this year when the U.S. Supreme Court hears a case brought by a transgender Virginia student who wants to be recognized as a boy and be able to use the boys’ bathroom at his high school.
Bathroom bill supporters cite a variety of concerns, from privacy rights and the general discomfort from having what may appear to be a member of the opposite sex in the wrong restroom to the argument that boys or men will claim to be transgender in order to gain access to girls’ or women’s bathrooms.
Whether you have privacy concerns or religious concerns, we’re going to be treated as being bigoted or being unkind if you object. We have to preserve privacy, and there are larger issues at stake.
Richard Mast, of Liberty Counsel, a First Amendment and religious liberties advocacy group
Critics says those fears are unfounded. Cathryn Oakley, senior legislative counsel for the Human Rights Campaign, a civil rights advocacy group for the lesbian, gay, bisexual and transgender community, said 19 states and more than 100 cities had nondiscriminatory ordinances that allowed transgender people to use public washrooms that matched their gender identities.
“Women’s restrooms have a stall,” Oakley said. “If I know the genitalia of people in the stall next to me, that’s because I’m hanging over the top of the stall, which is wildly inappropriate.”
Chase Strangio, a attorney for the American Civil Liberties Union, said last year saw the greatest number of anti-LGBT bills ever.
“If I were to speculate, the rise is a response to the success of the (same-sex) marriage movement and shifting the focus to stopping protections for transgender people,” he said.
It also could be that with the election of Donald Trump as president and Republicans remaining in control of both chambers of Congress that their brethren in statehouses feel a sense of empowerment and opportunity.
Several of the recent measures were pre-filed – before some state legislatures had even opened their 2017 sessions.
The Texas bill would require transgender students in public schools to use the public restrooms, showers and locker rooms that match their biological genders. It also affirms the right of private businesses to establish their own bathroom policies.
The Virginia bill has a similar intent, but also covers public lavatories at highway rest stops and government buildings. Its reach extends farther than the North Carolina law, known as HB2, in one aspect: A school principal must inform parents within 24 hours that a student in the school has indicated he or she wants to be viewed as a member of the opposite sex.
The South Carolina bill mirrors a key aspect of HB2: It prohibits local government from enacting laws that permit what a state bathroom law does not, such as allowing transgender people to use the public restrooms that conform to their senses of gender identity.
The North Carolina measure was a response to the city of Charlotte, which increased civil liberties protections for transgender people.
There is no problem to be solving here. There’s no evidence that to allow transgender people to use a restroom consistent with their identity is a problem.
Cathryn Oakley, of the Human Rights Campaign, a civil rights advocacy group for the LGBT community
In Missouri, Republican state Sen. Ed Emery’s bathroom bill stalled last year, but he pre-filed it again earlier this month.
“It basically says whenever there’s some gender confusion that a public school has to accommodate those students in a way that protects them from being forced to mixing with people with different preferences so they would be protected from exposure that would either violate their privacy or personal conviction,” he said.
Emery has said his legislation states that gender is determined by anatomy, chromosomes and a birth certificate.
But Oakley, the attorney with the Human Rights Campaign, said gender identity was much more complex and “deeply held within.”
“It’s not about being confused,” she said. “When you talk about refusing someone access based on a component of who they are, that’s discrimination.”
Oakley said bathroom bill advocates “should imagine if Caitlyn Jenner walked into the men’s room,” referring to the very public gender transformation of former gold medal Olympian and reality TV star Bruce Jenner. “That wouldn’t be appropriate. She does not belong there. She belongs in a place consistent with her identity. That place is a women’s room.”
Mast, the attorney with Liberty Counsel, said bathroom bill supporters were sympathetic toward transgender students caught up in the public restroom controversy.
“They are not happy with their biological sexuality and they feel they are of the opposite sex and want to be of the opposite sex,” he said. “We believe they should be helped to achieve gender congruence.”
But he added: “They can’t force the opposite sex to perform bodily functions in their presence.”