In March of 2016, North Carolina enacted HB 2, or the “Public Facilities Privacy and Securities Act,” the only piece of “bathroom bill” legislation to go into effect to date. LGBTQIA advocates and activists strongly opposed the bill, which denies rights to transgender individuals by limiting multi-occupancy public restroom use to the corresponding sex listed on their birth certificates. The bill received judicial backlash from both private entities, such as the American Civil Liberties Union (ACLU) and Equality North Carolina (ENC), and the Obama Department of Justice, labeling the legislation unconstitutional and in specific violation of the Civil Rights Act and Title IX. Despite multiple challenges in court, a newly elected democratic governor, and slight modifications, HB 2 remains largely intact.
HB 2 is an example of state-based legislation that interprets Title IX sex discrimination guidelines to exclude trans individuals. However, in May of 2016 the Obama Administration released a Dear Colleague Letter to schools clarifying that protections under Title IX extend to trans individuals, validating individuals’ right to use the bathroom corresponding to their gender identity. Therefore, until the release of the February 2017 Departments of Education and Justice Dear Colleague Letter rescinding previous guidance, HB 2 was in clear violation of federal Title IX guidelines. According to the National Council of State Legislatures, 14 states have filed 20 “bathroom bills” so far during their respective 2017-2018 legislative sessions. As of now, none of this legislation has passed out of the first chamber. South Dakota SB 115 has been withdrawn and Wyoming HB 244 failed prior to introduction.
Language stipulated in this legislation differs across the states in definitions of “sex” and “gender,” targeted institutions, alternative options and exceptions, and handling of noncompliance. These differences are further outlined in an analysis below:
Definition of “Sex” and “Gender”: Illinois, Kansas (HB 2171), Kentucky (HB 141), Minnesota, and Missouri (SB 98) all define sex specifically as “the physical condition of being male or female determined by chromosomes and assigned at birth.” Wyoming (failed) defines sex as that “defined at birth by the person’s anatomy.” Kansas (HB 206), Kentucky (HB 106), Missouri (HB 745), South Carolina, South Dakota (withdrawn), Tennessee (HB 888, SB 771), Texas (SB 6), New York and Virginia define sex as male or female as determined by what is listed on an individual’s birth certificate. Washington defines gender by current genitalia, in that an individual is prohibited from using a gender-segregated facility if that person is “preoperative, or otherwise has genitalia of a different gender from that which the facility is segregated.” Texas (HB 1362) fails to define sex or gender, but limits the use of multi-occupancy facilities to one “sex or gender.” Alabama and Missouri (HB 202) use the term gender without defining it.
The confusion in defining “sex” and “gender” is problematic and may indicate a misunderstanding by legislators of nonbinary gender. While “sex” is generally accepted as referring to biology, “gender” refers to culturally constructed identities of “man”, “woman”, or a number of other identities including gender fluid and gender queer. Alabama and Missouri (HB 202) have both introduced legislation which limit the use of a multi-occupancy facility to a non-defined gender-specific designation. If the Missouri (HB 202) language truly refers to gender and not sex, then a trans individual should be allowed to use the facility designated with their identified gender, regardless of sex at birth, though that does not appear to be the intent of the legislation. Further, most of the bills presented incorrectly define sex by tying it to assignment at birth. To learn more about differences between sex and gender, and issues experienced by trans individuals please visit the National Center for Transgender Equality and also check out these useful talking points on “Transgender People and Restrooms.”
Targeted Institutions: Overall, bathroom bills are targeted towards educational institutions, either K12, higher education, or a combination of both, but some pieces of legislation have a broader focus, limiting action on local policymaking regarding multiuse facilities across the state. Illinois, Kansas (HB 2171, SB 206), Kentucky (HB 141), Minnesota, Missouri (SB 98, HB 745), and South Dakota (withdrawn) have all introduced legislation directed at K12 institutions. Tennessee (HB 888, SB 771) focuses on both K12 and institutions of higher learning. Alabama,, South Carolina, Wyoming (failed), and Washington address public offices across the state. Kentucky (HB 106), Missouri (HB 202), Texas (SB 6, HB 1362), Virginia, and New York not only address schools, but also public agencies as well.
Alternative Options and Exceptions: A number of pieces of legislation offer alternative options for trans individuals. Illinois, Kansas (HB 2171, SB 206), Kentucky (HB 141), Minnesota, Missouri (SB 98, HB 745), and New York offer single-user or faculty restrooms as an option for trans students in some instances, especially where the legislation is directed towards K12 institutions. Use of single-user or faculty restrooms would, however, require parental permission. Alabama outlines a multi-occupancy option, open to all individuals irrespective of gender that would require continuous facility monitoring by a hired attendant. Kentucky (HB 106), Missouri (HB 202), South Carolina, South Dakota (withdrawn), Tennessee (HB 888, SB 771), Texas (SB 6, HB 1362), Virginia, Washington and Wyoming (failed) offer no alternative options for trans students, with the only exceptions to the legislation applying to medical professionals, parents, and facilities management.
Like confusion regarding the definitions of “sex” and “gender”, the alternative options for transgender individuals posited in these bills are also problematic. Singling out individuals through the required use of a single-user or faculty-designative facilities may draw unwanted attention to the individual, potentially further endangering transgender students who may already feel unsafe at school. The additional requirement of parental permission may further marginalize trans individuals, especially those whose parents may not be supportive of their gender identity, and prevent them from getting the support they need. Finally, Alabama’s option regarding bathroom attendants is costly, unrealistic, and unwarranted.
Noncompliance: Only 8 states address noncompliance. Alabama, Kentucky (HB 141, HB 106), Virginia, Illinois and Texas (SB 6) stipulate that any person who finds themselves in a multi-occupancy facility with a person in noncompliance is eligible for receipt of civil relief for emotional damages either by the individual or the school. Alabama, Kansas (HB 2171), Texas (SB 6), and Wyoming offer investigation upon receipt of complaint with possible outcomes of criminal penalties against the accused. Missouri (HB 202), South Carolina, and Texas (HB 1362) include provisions preventing local government from passing nondiscriminatory restroom policies that would allow an individual to use a multi-occupancy facility regardless of “biological sex.”
The future of these bathroom bills are drawn into question under the precedent set by the new administration. HB2 is unlikely to see any federal pushback with Attorney General Jeff Sessions at the helm of the Department of Justice. In addition, sex discrimination protections under Title IX are up for interpretation by the states, which may contribute to the probability of more states introducing bathroom bills. Conversely, now that President Trump has given the power back to the states, they may find the passage of such legislation unnecessary, and let local governments set their own policies.
As for the future of Title IX interpretations, advocates look to the upcoming Supreme Court case “Gloucester County School Board v. G.G.” where outcomes will iron out the ambiguity of the sex discrimination provisions. If the court decides in favor of Gavin Grimm, the trans student filing suit, the outcome would find bathroom bill legislation in violation of Title IX, regardless of federal guidance.
The 2017 NASPA Annual Conference in San Antonio is around the corner, and, as detailed above, the Texas bathroom bill legislation (SB 6 & HB 1362) includes some of the most stringent policies around multi-occupancy bathroom use, while offering no alternatives for trans individuals. Currently SB 6 is scheduled for a public hearing on March 7, just days before the Annual Conference. NASPActs has been tracking bathroom bill legislation and will have additional materials available at the conference. Please make sure to check out the events in the Exhibit Hall, and the Call to Action Vigil on Tuesday, March 14!