Bills have been filed in three states to prevent transgender people from using bathrooms consistent with their gender identity. The one in Kentucky targets transgender students. The bills in Texas and Florida apply would everywhere. Between all three, there are various provisions for:
1. Civil and criminal penalties transgender people who use a bathroom
2. Fines, criminal and civil liability for school administrators and business owners who let a transgender person use a bathroom different than their birth sex
3. People who report a transgender people in the bathroom to claim civil damages (i.e. collect a bounty)
Understandably, this has caused fear and dismay among transgender people around the country. We all have to use the bathroom, but these laws would seemingly force transgender people to choose between fines and jail, risking horrific violence or leaving the state.
While this is theoretically possible, it's also extremely unlikely. Here's what you need to know, and what the probable outcomes are:
1. The bills probably won't pass
These bills are considered kind of kooky even for conservatives, who'd much rather be talking about tax cuts, "Religious Freedom," repealing "Obamacare," and "getting government out of people's lives." The Florida and Texas bills haven't even been assigned to committees yet, and may never be heard. Beyond this, the legislators who proposed them in Texas and Florida aren't exactly well regarded even within their own party. The Kentucky bill passed in the state senate, but both the house and governor's office are controlled by Democrats.
Americans have 99 problems, and transgender people in bathrooms ain't one of them. Republicans who focus on this will open themselves up to a lot of ridicule, while most of the mainstream ones would rather find issues that are better at pulling in both the base and independents.
2. Even if they do pass, it will be a nightmare... for conservatives
If by some weird quirk of fate one of these passes, the storm of lawsuits from everyone involved will be a debacle. Non-transgender people who are accidentally targeted by these laws will be suing. So will transgender people, whose lives are at risk. Business owners will be claiming that the government mandate is unenforceable; how are they supposed to spot check someone's DNA? Police departments will have an unfunded mandate for DNA testing, and it will be a huge test of evidence and privacy laws.
People trying to claim bounties will be reporting anyone who looks suspicious, or even turn each other in to file civil suits against business owners for quick cash.
Transgender men in women's bathrooms will also quickly make it obvious how ridiculous the bills are. The bearded guy who benches 300 lbs in the ladies room isn't exactly what these lawmakers wanted, but will get anyway. If or when a butch cisgender woman gets arrested and forced to undergo DNA testing, the result would be a media firestorm.
If they do pass and get put into effect, the chaos that follows will ensure no one repeats the mistake.
3. They probably won't hold up in court
The Department of Labor (DOL) recognizes discrimination against transgender people as sex discrimination under Title VII of the 1964 Civil Rights Act. Some of the most recent case law also finds that restricting bathroom access for transgender workers is a form of sex discrimination. Similarly, the Department of Education recognizes transgender people as being covered by the provisions for sex discrimination under Title IX.
These are just the challenges that transgender people would mount under Title VII and IX. There will also probably be the equal protection, privacy, disparate impact, sex stereotyping, animus and enforceability challenges these bills would face from transgender people, people who were falsely accused and business owners affected by the laws.
Given the number of vulnerabilities and potential challenges to these laws, many people believe they are unlikely to stand up in court.
4. These are last gasp attempts to hurt LGBT people
"No, I think we have to go all out. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody's part!" - Otter, Animal House
Most people, including conservatives, see the writing on the wall for marriage equality. As a result, they are desperately casting about for some ways to hurt LGBT people legislatively. Recent polls show that the window for singling out transgender people is closing, and the results are acts of desperation.
Most of these attempts have involved preempting local non-discrimination ordinances with state law, or expansions of the Religious Freedom Restoration Act (RFRA) to allow people, businesses, churches and religiously affiliated organizations to discriminate against LGBT people on the basis of "sincerely held religious beliefs."
Whatever those are.
These bathroom bills represent a futile and not particularly well-thought-out side show to where the real point of attack is. Their introduction may be simple grandstanding for the base, fear mongering or sincerely held paranoia, but as public accommodations access becomes settled law these bills will have less and less "pull."
People whose greatest fears in life include transgender people in bathrooms will increasingly be seen for what they are, and the rest of us will be able to just get on with our lives.
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