News Law and Policy

Arizona Bathroom Bill Reworked, But Still Discriminatory Against Transgender Individuals

Martha Kempner

The new version of the bill would no longer make going to the "wrong" bathroom a criminal act, but it would allow business owners to tell transgender individuals "You can't go in there," in the words of the bill's sponsor.

On Monday, Arizona state Rep. John Kavanagh (R-Fountain Hills) revised a controversial bill that originally would have imposed criminal penalties on individuals who use a public bathroom, locker room, or dressing room that does not match the sex on their birth certificate. That’s right, the “show me your papers” state was going to require that you show a birth certificate before you pee. The new version of the bill would no longer make going to the “wrong” bathroom a criminal act, but it is still discriminatory against transgender individuals.

The bill stemmed from a recent Phoenix City Council vote to extend anti-discrimination laws to LGBTQ individuals. Opponents argued that that the measure would put business owners at risk of prosecution for “refusing to let transgendered individuals who are anatomically male use the women’s restroom,” Capitol Media Services reports.

Ensuring that transgender individuals bear that risk instead, Kavanagh proposed a bill that would criminalize using the “wrong” bathroom. Specifically, the law would have required people to use public restrooms, dressing rooms, or locker rooms associated with the sex listed on their birth certificates or be subject to criminal prosecution, a possible fine of $2,500, and punishment of up to six months in jail.

Public restrooms can be problematic and even unsafe for transgender men and women. Forcing a transgender woman to use a male bathroom, for example, could put her in a dangerous situation. And yet, that is exactly what Kavanagh’s bill would have done.

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The outrage over the bill was immediate. Last week, when the committee was set to vote on the bill, protestors crowded the committee room. Kavanagh quickly said he would delay the debate on the bill because of an error in his paperwork.

On Monday, Kavanagh submitted a revised bill that did not include any criminal penalties for individuals using the “wrong” bathroom. The new version puts the focus back on business owners; it would give them immunity if they “turn away someone from a restroom based on the belief of the owner or manager that a person should not be using that facility,” according to Capitol Media Services. As Kavanagh put it, “We’re simply saying that the store owner has the right to decide what type of restroom, unisexual or one sex only, and has the right to say to somebody ‘You can’t go in there’ without being locked up by the city of Phoenix and sued by the person denied service.”

Though less extreme, the bill still discriminates against transgender individuals. The people of Arizona might be better served if lawmakers worked to encourage safe restrooms from everyone, rather than ensuring immunity for business owners who discriminate against transgender men and women.

The bill is set to be voted on by committee this week.

News LGBTQ

States Launch Legal Attack Against White House Guidance on Transgender Bathroom Equity

Christine Grimaldi & Jessica Mason Pieklo

The guidance comes at a time when transgender rights are under attack by Republican legislators at the state level. Texas Lt. Gov. Dan Patrick (R) has threatened to defy the administration and encouraged superintendents to do the same.

Eleven states and state officials sued the Obama administration Wednesday over recent federal guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity.

Texas, Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, and Georgia filed the lawsuit in the U.S. District Court for the Northern District of Texas, which could be a friendly environment for the plaintiffs. District Judge Reed O’Connor, a 2007 President George W. Bush appointee, is expected to hear the case.

School districts in Texas and Arizona, the Arizona Department of Education, as well as Maine Gov. Paul LePage (R) also joined the case against the Obama administration.

Nine of the 11 states involved in the legal challenge have Republican governors. West Virginia and Louisiana have Democratic governors.

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“This suit concerns the ultra vires revision of the term ‘sex’ under multiple provisions of the United States Code,” the complaint said. In layman’s terms, that means the plaintiffs are challenging the Obama administration’s power to write a letter that says Title VII and related statutes cover transgender people under the federal definition of “sex,” arguing it is beyond the scope of the administration’s authority.

The public school recommendations outlined in the joint U.S. Department of Education (DOE) and U.S. Department of Justice (DOJ) May 13 letter on transgender students amount to “significant guidance,” lacking the force of law or an executive order. The complaint charges that the guidance failed to go through notice-and-comment rulemaking, but for that very reason, the administration doesn’t need the public to weigh in on transgender bathroom equality.

Typically, the contents of a guidance document do not amount to an “injury in fact,” the basis for successful lawsuits.

A U.S. Department of Justice spokesperson expressed confidence in the administration’s legal standing. “While the Department will review the complaint, the federal government has strong legal foundations to uphold the civil rights of transgender Americans,” the spokesperson told Rewire in an email.

The guidance comes at a time when transgender rights are under attack by Republican legislators at the state level. Texas Lt. Gov. Dan Patrick (R) has threatened to defy the administration and encouraged superintendents to do the same, even if that means forgoing an estimated $10 billion in federal education funds under Title IX.

The plaintiffs in the complaint charge that the Obama administration’s guidance is too burdensome to enact.

“Adapting to the new circumstances put forth by DOE and DOJ requires seismic changes in the operations of the nation’s school districts,” the complaint said. “Schools subject to Title IX must allow students to choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day. Single-sex classes, schools, and dormitories must also be open to students based on their chosen ‘gender identity.’”

However, many school administrators, including the National Association of Secondary School Principals (NASSP), welcomed the administration’s guidance as a much-needed move toward federal recognition of transgender rights. The NASSP is in the process of developing a position statement on transgender student rights in the K-12 education system.

News Law and Policy

South Carolina GOP Launches Discriminatory ‘Bathroom Bill’ Attack

Teddy Wilson

“We have this more conservative legislature that really understands the power of using fear as a tactic to drive political wedges to further divide communities and further divide votes,” said Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective. “This gives them an open door to move their agenda forward.”

The South Carolina legislature failed to pass a North Carolina-style anti-transgender bathroom discrimination law, but GOP legislators in the state introduced a bill this week targeting a school district that implemented a transgender-inclusive policy.

Republican lawmakers throughout the South have introduced legislation that targets the transgender community and attempts to limit transgender people’s access to bathrooms and other facilities.

Several of the proposals have used similar language to a North Carolina GOP-backed law passed in March. When a South Carolina lawmaker introduced a similar bill in April, it was met with fierce opposition.

State Sen. Lee Bright (R-Spartanburg) introduced S 1203, which would have prohibited local municipalities from creating “local laws, ordinances, orders, or other regulations” that would “allow a person to use a multiple occupancy bathroom or changing facility regardless of the person’s biological sex.”

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The measure would have prohibited government buildings and public schools from implementing a transgender-inclusive bathroom policy.

Bright said that he’s against “men who claim to be women” using the same restrooms as children, reported the Associated Press. “I don’t believe transgender people are pedophiles,” Bright said. “I think grown adult men would use this as protection to violate women in the restroom.”

Many of those who testified opposed the bill during a committee hearing.

Columbia Mayor Steve Benjamin said the bill was an attack on transgender people that could come with negative economic consequences, reported Reuters. “This bill is an undisguised attack on some of our most talented and most vulnerable citizens,” Benjamin said.

The anti-transgender bill died in committee.

Lawmakers on the committee said they didn’t “need to make the mistakes” made by North Carolina Republicans, and Gov. Nikki Haley (R) said the law wasn’t necessary

“When I look at South Carolina, we look at our situations, we’re not hearing of anybody’s religious liberties that are being violated, and we’re again not hearing any citizens that feel like they’re being violated in terms of freedoms,” Haley said, reported the Washington Post.

Despite the failure of Bright’s bill, lawmakers still seem intent on creating discriminatory bathroom policy.

S 1306, sponsored by Sen. Lawrence Grooms (R-Charleston) and Sen. Paul Campbell (R-Goose Creek), would prohibit “a person of one sex” from using the restrooms, locker rooms, showers or any other facility “designated for use by the opposite sex.”

The law would apply to Berkeley County school facilities, located in the Charleston metropolitan area. Berkeley County this spring became South Carolina’s first public school district to implement a case-by-case transgender-inclusive bathroom policy.

Grooms told the Associated Press that his bill is intended to require the Berkeley County School District (BCSD) to follow the same policies as other school districts in the state. “What I’ve done for the children of Berkeley County and their parents is to give them some degree of stability about what the policies will be,” Grooms said.

BCSD spokesperson Katie Orvin told the Post and Courier that the school district does not have a written policy addressing bathroom usage.

“BCSD implements current anti-discrimination policies under the guidance of the U.S. Department of Education and in accordance with Title IX,” Orvin said.

The Berkeley County School Board held the BCSD decision after a public hearing and a closed-door meeting with the district’s legal counsel.

Board Chair Jim Hayes read a statement after the hearing, saying the school district would “maintain and respect the privacy rights of all its students” while permitting transgender students to use the bathroom that corresponds to their gender identity.

“School administrators will continue to manage requests made by, or on behalf of, transgender students in reference to the use of restroom facilities for the remainder of the 2015-2016 school year in hopes of receiving a clearly defined direction from the Courts prior to the start of the upcoming school year,” the statement said.

Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, a national grassroots organization, told Rewire that the legislative movement targeting transgender people is “rooted in fear.”

“We have this more conservative legislature that really understands the power of using fear as a tactic to drive political wedges to further divide communities and further divide votes,” Simpson said. “This gives them an open door to move their agenda forward.”

Simpson said that attempts to target the transgender community is part of a larger strategy of targeting marginalized people.

“How can we believe our legislators have our best interests at heart, if you are going to publicly and intentionally do something that is attacking the vulnerable of our society?” Simpson said.