Anti-transgender bills threaten people’s ability to fully participate in society

Over the last several years we’ve seen unprecedented progress in the cultural realm for transgender people. High profile transgender celebrities, such as Laverne Cox and Caitlyn Jenner, have garnered unprecedented media attention. Movies and TV series like The Danish Girl and Transparent, which feature stories about transgender people, have not only increased the visibility of transgender people, but have also brought political attention to the transgender equality movement. Although there is no federal law that explicitly bans discrimination on the basis of gender identity, 17 states and the District of Columbia have laws prohibiting discrimination based on gender identity in employment, housing, and public accommodations. In addition, more than 200 cities and municipalities have local ordinances that prohibit discrimination on the basis of gender identity.

All this progress has catalyzed a backlash that threatens to not just stall the momentum of the transgender equality movement, but to put transgender people at heightened risk of harm. 

{mosads}In 2015, the state legislatures of Texas, Kentucky, Florida, Minnesota, and Missouri debated legislation―so called “bathroom bills”―that would restrict access to gendered public facilities, such as restrooms and locker rooms, based on an individual’s sex at birth rather than their gender identity. Last fall, in a move that generated headlines around the country, Houston voters repealed the Houston Equal Rights Ordinance (HERO), which prohibited discrimination on the basis of gender identity along with several other characteristics.

Bathroom bill supporters claim that such legislation will enhance public safety by preventing men from dressing as women in order to sexually harass women and girls in public restrooms. Indeed, “No men in women’s bathrooms” was the successful rallying cry for organizations that campaigned for the repeal of HERO in Houston. Such arguments ignore the fact that men are already prohibited from assaulting women and children in public bathrooms and elsewhere. More important, they ignore the fact that equal rights laws for transgender people have not resulted in instances of harassment or abuse of other people using public restrooms or locker rooms. 

In 2014 Media Matters surveyed the heads of state police departments and civil and human rights organizations from 12 states with laws protecting transgender people from discrimination in public settings. It found no rise in sexual harassment or abuse as a result of passing nondiscrimination laws. In testimony before the Delaware State Senate Judiciary Committee regarding a gender identity nondiscrimination bill, Delaware Deputy Attorney General Patricia Dailey Lewis described the claim that such laws make children vulnerable as “offensive and exploitative to children and to the parents that seek to protect them.” 

Meanwhile, studies show that discrimination in public places such as restaurants, train stations, and, yes, public restrooms and locker rooms, can result in negative health outcomes for transgender people. A 2013 survey of nearly 500 Massachusetts transgender adults found that 65 percent had experienced discrimination based on their gender identity in public settings during the previous 12 months. Just over half (55 percent) of those reporting such discrimination also reported having experienced physical symptoms of stress during the past 30 days, while only 37 percent of respondents who had not reported experiences of discrimination had such symptoms. 

Making matters even worse, the wording of some of the anti-transgender bills may potentially sanction aggression or harassment toward transgender people who are trying to access public restrooms. Texas bill, HB 1748, for example, would define sex based solely on chromosomal genotype and specifically place the responsibility of enforcing the law on the people maintaining the public facility in question, citing non-compliance as a felony. If such legislation passed, it could encourage owners of public facilities to harass people who are transgender or appear to be transgender for physical or genetic proof of sex before entering a bathroom. 

In reality, transgender people often employ elaborate strategies to avoid using public restrooms in order to avoid harassment. A 2013 survey published in the Journal of Public Management & Social Policy article found that nearly half (49 percent) of Washington DC transgender residents would plot their routes when out in public so that they would be sure to be near a public restroom known to be safe, and 58 percent had changed their plans to go out in public or attend an event because they would not be near a public restroom with which they were familiar and knew to be safe to use.

While most people are able to take for granted the ability to go out in public for business or pleasure without having to worry about personal safety when using a public bathroom, that is simply not the case for many transgender people. Anti-transgender bathroom bills further limit the ability of transgender people to function in most public spaces, and prevent people who are transgender from being able to fully participate in society. Instead of passing bills that target and discriminate against transgender people, states should pass laws that protect the rights of all people, regardless of gender identity, to access public accommodations free of discrimination.

Wang is a health policy analyst for The Fenway Institute at Fenway Health. Cahill is the director of Health Policy Research for The Fenway Institute at Fenway Health. Both contributed to the recent policy brief “State Anti-Transgender Bathroom Bills Threaten Transgender People’s Health and Participation in Public Life,” co-published by Fenway and the Center for American Progress.