Bathroom bill

In a landmark 2013 case, the Colorado Civil Rights Division ruled in favor of six-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.[13]

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.[15] 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.[16]

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.[17] 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.[18]

In February 2016, the city of Charlotte, North Carolina, adopted an ordinance which, it said, was intended to allow transgender persons a right to access bathrooms according to gender identity.[19] The preexisting ordinance, in § 12-58 prohibited discrimination race, religion or national origin. In addition, the preexisting ordinance in § 12-59 banned discrimination based on sex but specifically exempted bathrooms, changing rooms and other intimate spaces from sex discrimination prohibitions, thus allowing separation based on sex.[20] The ordinance did not ban discrimination based on gender identity or sexual orientation. By the February 2016 amendment, the City Council added gender, gender identity, sexual orientation and marital status to the protected categories. It also deleted this provision that allowed separation based on "sex". In so doing, it essentially eliminated the word "sex" from the city ordinance, leaving the term gender. The North Carolina legislature reacted by passing the Public Facilities Privacy & Security Act (HB2). In addition to making other changes, the bill defined the issue of bathroom access as one of statewide concern, defined sex as biological.[21] It required that all bathrooms be separated by biological sex. It did allow for business owners to apply for a waiver to make single-entry bathrooms all-gender/mixed-sex. Afterward, spurred by advocacy groups, celebrities, groups and businesses joined together in a boycott of the state. Later, in a "compromise", the legislature agreed to repeal HB2, but it also barred localities from making any changes regarding bathrooms until 2020.[22]

Shortly after HB2 was passed, in May 2016, in the last year of President Obama's presidency, the U.S. Justice Department sued North Carolina over its 'bathroom bill' in order to stop its implementation.[23] Moreover, advocates claim that businesses in North Carolina have enforced toilet restrictions on transgender customers at their discretion.[24] Mississippi also limited public toilet usage through the enactment of a law that protects religious beliefs, citing: "male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth," which does not consider transgender and intersex people.[24] Later, however, the Justice Department, under President Trump, withdrew its opposition to this and other such state laws and policies.

State legislatures in Arizona, Illinois, Kansas, Kentucky, Massachusetts, Minnesota, Mississippi, Missouri, South Carolina, Tennessee, and Texas have proposed bills that would restrict public toilet access to access on the basis of sex as biologically defined. Some of these laws allow the establishment of single stall separate toilets that can be used by all genders/both sexes. The National Center for Transgender Equality, an LGBTQ advocacy group, calls these bills discriminatory.[25]

In 2016, the U.S. Department of Justice and U.S. Department of Education, under President Barack Obama issued "guidance" to state and private educational institutions stating that these institutions had to allow transgender students to use toilets according to their gender identity. The Obama guidance suggested that schools and private institutions risked federal funding if they did not comply.[26]

How the guidance was issued was controversial. Guidance procedures are normally issued only to other federal agencies. These guidances are then sometimes shared with state entities and private institutions as advisory, but they are normally not compulsive. While agencies can issue regulations that are consistent with existing law, they cannot exceed or change the law. Moreover, those regulations must comply with the U.S. Administrative Procedure Act (APA). The APA requires notice to the public and a period for comments. Opponents argued that using the joint guidance was inappropriate and was designed to circumvent the APA. The Department of Justice, the Department of Education, advocacy groups and private litigants brought cases to enforce the joint guidance interpretation.

One of those cases, G.G. v. Gloucester School Board, reached the Supreme Court in 2016. However, the election of Donald Trump as president in November of that year derailed the case. On February 22, 2017, about a month after Trump's inauguration, the government withdrew the May 13 guidance.[27] In withdrawing the guidance, then Attorney General Jeff Sessions stated in a letter, "The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX. ... Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue."[28] On March 6, 2017, the Supreme Court determined that, in light of the changed position of the government, the case, should be vacated and the case remanded for further consideration in the lower courts.[29]

The Equal Employment Opportunity Commission (EEOC) is a key U.S. agency that enforces federal workplace rules. States also have their own rules but in a conflict, if constitutional, federal law is supreme. A key statute is Title VII. Title VII, passed as part of the Civil Rights Act of 1964, prohibits discrimination in the workplace "because of" of race, color, religion, sex, or national origin. Title VII does not mention sexual orientation or gender identity.[30]

Although few dispute that Congress was thinking about gender identity or sexual orientation in 1964, advocates have argued that sexual orientation and gender identity are included in the law's reference to "sex". In 2012, the EEOC adopted this view. It ruled in Macy v. Holder, a case involving federal employees, that Title VII required that "gender identity" be treated the same as "sex".[31] It also ruled soon thereafter that a transgender person had to be afforded access to a public toilet matching the person's gender identity without a requirement of surgery or status identification.[32] These decisions departed from then existing legal precedent as well as the EEOC's own long line of precedents. The EEOC began to bring and support lawsuits across the country to enforce its interpretation. Citing the EEOC's holding, several courts later followed the EEOC's interpretation, although some rejected it.

Currently, in the United States, the highest court, the Supreme Court, has the opportunity to consider several cases raising the issue of whether sex and gender should be considered the same in a federal employment statutes or under the Constitution. A case that directly involves the rights of transgender persons is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107) (Sup. Ct. 2018). The case involves a transgender woman who was employed with a funeral home. The funeral home required its employees to wear uniforms and assigned those uniforms based on biological sex. After transitioning, the employee stated her desire to wear the uniform designated for females. The funeral home's owner indicated that the arrangement was not acceptable given stated religious views and the religious concerns of customers using the funeral home's services. When the parties could not reach agreement, the employer fired her. After receiving a complaint, the EEOC sued the funeral home on behalf of the employee. If the Supreme Court agrees with the EEOC's position, that sexual orientation discrimination and gender identity discrimination are de facto discrimination on the basis of "sex" under the language of Title VII, that ruling would likely ensure access to toilets in the workplace by virtue of gender identity and self-identification. A finding against that position would likely leave the question of access to local authorities.

Although it had previously deferred consideration of the rights of LGBTQ persons under U.S. federal statutes (other than in the context of marriage), on April 22, 2019, the Supreme Court accepted (i.e., "granted certiorari" in) the RG & GR Funeral Homes v. EEOC case as well as two other Title VII cases: (1) Bostock v. Clayton County, and (2) Altitude Express, Inc. v Zarda.[33][34] This acceptance means that the Court will hear argument in these cases in its new term that starts in October 2019.

One has seen reversals of Obama-era policies at the federal level with respect to other statutes such as Title IX which prohibits denials of educational opportunity based on sex. In May 2016 the U.S. Department of Education and the Justice Department under the Obama Administration indicated that single-sex schools and schools receiving federal money must treat transgender students consistent with their gender identity under Title IX of the Education Amendments of 1972.[35] That guidance was later withdrawn by the Department of Justice under President Trump.[36]

Currently in the U.S., each state, county, and city government enacts its own legislation governing how it will or will not address the rights of LGBT individuals; this includes provision of public toilets.

Map of States and Counties in the United States which have enacted legislation on Restrooms, Locker Rooms, and other Sex-Segregated Public Accommodations, in regard to their access from those who are Transgender, or have Gender Dysphoria:

  State prohibits discrimination in Restrooms on the basis of Gender Identity

  State, City, or County, mandates single-user unisex restrooms in all public buildings

---

  State is currently considering a Bill that would make it a Misdemeanor for a person to use a bathroom or locker-room which does not correspond with the persons birth sex

  State has a targeted Religious Freedom law which allows discrimination in Public Accommodations, including Restrooms, on the basis of sexual orientation and gender identity

  State classifies Transgender people using the restroom of their gender identity as "indecent exposure" and technically makes it a Misdemeanor under state law

Bathroom bills have been proposed and debated in a number of state legislatures. Several state bills are based on and closely resemble model legislation provided by the conservative lobbying organization Alliance Defending Freedom (ADF), which has been classified by the Southern Poverty Law Center as an anti-LGBT "hate group".[37][38][39] The ADF's model legislation proposes giving any public school or university student the right to sue for $2,500 for each time they encountered a transgender classmate in a locker room or bathroom.[37][40]

Anchorage, Alaska, prohibited discrimination based on gender identity in 2015.[41] In 2017, Alaska Family Action proposed a direct initiative bathroom bill that would have overturned protections for transgender individuals. Proposition 1 would have made 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."[42] Voters rejected the bill in April 2018.[43]

A bathroom bill was introduced in Alabama on February 7, 2017, by state Senator Phil Williams.[44] The bill, if passed, would require attendants to be present in mixed-gender public bathrooms to ensure that no crimes are committed there.[45]

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 six months in jail and a $2500 fine under a disorderly conduct charge.[46][47] The proposal was withdrawn by its sponsor, John Kavanagh.[48][49]

Gender neutral restroom sign in 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.

On September 29, 2016, Governor Jerry Brown signed legislation (Assembly Bill 1732) after being approved by the Assembly and Senate which made California the first state in the US to require all single-occupancy public toilets to be unisex beginning March 1, 2017.[50][51][52][53] This includes California schools, government buildings, businesses and public toilets.[54] Legislation has also been proposed in California that "requires...private buildings open to the public, as specified, to maintain at least one safe, sanitary, and convenient baby diaper changing station that is accessible to women and men".[55][56][57][58] Since California, New York, the District of Columbia and several other jurisdictions have followed suit.[59][60]

In Colorado, in February 2015, a bill died in committee that proposed banning transgender people from using changing rooms of their gender identity.[61] This bill would have prevented discrimination lawsuits against facility managers who chose to deny entry into facilities to transgender people.

A bathroom bill was introduced in Florida in the spring of 2015 as H.B. 583 by Representative Frank Artiles.[62][63] 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.[64][65][66] Proponents claimed that the bill was designed to prevent "assault, battery, molestation, rape, voyeurism, and exhibitionism".[9] Opponents claimed that the only purpose was to be "discriminatory" and to "criminalize [transgender people] for simply going about their daily lives".[67] The bill went through two House committees, but did not pass.[68] 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.[63]

In January 2021, Indiana State Senator Bruce Borders introduced a Bill to the Senate that would make it a Class-B Misdemeanor for any person to use a bathroom or locker-room that did not correlate with their birth sex.[69]

In 2016, the Kansas legislature introduced a "bathroom bill" that was nearly identical to the ADF's model "bathroom bill" legislation. The bill died after public protests over the legislation's provision allowing students to sue their school if they encountered a transgender person in a bathroom or locker room.[37][39]

A 2015 proposal in Kentucky, also based on the ADF model legislation,[37] 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.[70][71] On February 27, 2015, the bill S.B. 76 passed in the Kentucky Senate,[72] but it did not pass the Kentucky House.[62]

Massachusetts prohibited discrimination in sex-segregated facilities based on gender identity in 2016. It includes a provision prohibiting assertion of a gender identity for an "improper purpose", which was meant to address the criticism that a man could insincerely claim to be a transgender woman in order to gain access to a bathroom for the purpose of looking at women inside (though assault, harassment, and "peeping Tom" offenses are also crimes which can be charged separately from merely being present). Voters were asked whether to repeal this law when Question 3 appeared on the ballot on November 6, 2018. This was the first time such a question was put to voters at the state level. The law was upheld by approximately 1.76 million votes for and 834,000 votes against.[73] A study of Massachusetts cities that enacted a similar ban in the two years before the statewide ban took effect found no impact on the rate bathroom crimes, which were rare to begin with.[74]

A bathroom bill was introduced in Minnesota in 2016. It was a word-for-word copy of the ADF's model legislation.[62][75][37]

Two bathroom bills were introduced in Missouri in 2017.[76]

On March 19, 2015, Victoria Dooling, a Nevada state representative, proposed a bathroom bill that would apply to public schoolchildren in the state.[77] It later died in committee.[78]

In March 2019, a bill passed both houses of the New Mexico Legislature (House vote 54-12 and Senate vote 23-15) to explicitly allow gender-neutral bathrooms. The bill was signed into law by the Governor within the same month and went into effect on July 1, 2019.[79]

On March 7, 2016, Mayor Bill de Blasio signed an Executive Order requiring that all New York City municipalities make available to the public and their employees a single-sex facility consistent with their gender identities. Individuals using these facilities would not need to show any identification or medical documentation to verify their gender.[80]

Gender neutral bathroom sign

The New York State Legislature, in July 2020, passed a bill to implement gender-neutral bathrooms within all single occupancy public toilets across the state.[81]

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.[82] 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).[82]

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.[83]

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.[84]

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.[85]

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.[86] 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.[86] Senator Bright's bill would maintain that public bathrooms be used in accordance to "biological sex".[86] An online poll taken from a news site stated that 75% of voters did not think the bill was necessary.[86] The legislation failed to meet the crossover deadline for bills to pass from one legislative chamber to the other.[87]

In December 2016, a similar bill was introduced by Representative Steven Wayne Long in the South Carolina house (H. 3012).[88]

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.[89] South Dakota's bill was, according to ADF's legal counsel, based on the ADF's model bathroom bill legislation.[38] On March 1, 2016, the governor of South Dakota, Dennis Daugaard, vetoed the bill.[90] Early in the 2017 legislative session Republican Senator Lance Russell refiled the bathroom bill, but on January 30 he withdrew the bill because Daugaard again promised a veto.[91]

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][92] 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.[92] In 2017, the bill was re-introduced, but died in the Senate Education Committee.[93]

On May 2, 2019, Tennessee governor Bill Lee signed into law legislation defining a trans person using the bathroom corresponding with their gender identity as indecent exposure. While the language of said bill had been significantly watered down to be less blatant, advocacy groups still pointed to it as accomplishing its original goal.[94] This now technically makes a trans person using the bathroom of their gender identity a Class B Misdemeanor under Tennessee law.

Public opposition to SB6 in the State Capitol

A bill introduced to the Texas House of Representatives in March 2015 proposed that any student who encountered another student who does not identify with their "biological sex" in a shared restroom could be awarded $2,000 in damage reparations for "mental anguish". The school itself would also be liable for failing to take action against known transgender students using their gender identified restroom.[95][96] An analysis by NBC News determined that the Texas bill was influenced by ADF's model legislation,[37] which also proposes $2,500 in damages per encounter with a transgender person in a shared restroom.[40]

Another bill, introduced to the Texas House in February 2015, suggested 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.[97] 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.[98]

Several bills were filed in both the regular legislative session and first special session of the Texas Legislature in 2017. Sponsored by State Senator Lois Kolkhorst and championed by Lieutenant 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). Neither bill went to the House floor for a vote (although SB6 received a hearing by the House's State Affairs committee). SB6 would have limited bathroom access based on the sex listed on one's birth certificate while SB3 would have allowed an individual to use the restroom listed on several state IDs as well (e.g. driver's license or concealed carry license).[99][100]

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."[101]

In September 2018, Kolkhorst indicated that she would try again to pass similar legislation.[102]

On May 11, 2018, Vermont Governor Phil Scott signed a bill requiring all single-user public restrooms to be gender-neutral.[103]

In 2016, Delegate 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.[104] 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,[105] 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."[104] 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.[106]

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.[107] HB1612 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.[108]

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.[109] 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.[110] 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.[111] 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.[112]

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.[113][114]

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.[115] 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.[116] The bill was passed by the House of Commons in 2011 but was defeated by the Senate.[117]

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.[118] In 2015, Senator Don Plett introduced three amendments to the bill, one of which exempted public washrooms and changerooms from the bill's protections.[119] The bill was also ultimately defeated in the Senate.

Garrison re-introduced the bill to the 42nd Parliament as Bill C-204.[120]

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.[121][122][123]