Two weeks ago, North Carolina passed a law that requires schools and public agencies to have gender-segregated bathrooms and to prevent people from using a bathroom that doesn’t correspond to their biological sex. Since then, PayPal has canceled plans to build a new operations center in Charlotte, New York Gov. Andrew Cuomo has banned state employees from making nonessential work trips to North Carolina, and composer Stephen Schwartz has announced that he will not allow his musicals to be performed in the state.
Regulating which bathrooms transgender people can use is the latest frontier in the fight over how the country should accommodate transgender people. In November 2015, Houston voters overturned a nondiscrimination ordinance to prevent it from allowing transgender people to use the bathrooms that matched their gender identity. (The ordinance didn’t mention bathrooms directly.) South Dakota passed a narrower bill that would have required students to use bathrooms that matched their biological sex, but Republican Gov. Dennis Daugaard vetoed it in early March.
I wanted to know if this kind of legislation was limited to these few, high-profile cases, or if other states were considering making similar bathroom laws. I found that North Carolina isn’t alone. Lawmakers in seven states are looking to do something similar: Illinois, Kansas, Massachusetts, Missouri, Mississippi, Tennessee and Wisconsin. Looking at the list shows the contours of the fight — and how different states are struggling to define a person’s “sex.”
I got my numbers from the National Center for Transgender Equality, an advocacy organization that has tracked all state-level bills that were introduced in the 2016 legislative session and contain provisions that the center believes target transgender people. (I confirmed the details of the bills myself.) As of Tuesday, the center was tracking 49 bills, 32 of which dealt with bathroom access. More than a third (12) of those bathroom bills are still actively being considered (the rest died in committee or were otherwise put on hold).
Mara Keisling, executive director of the National Center for Transgender Equality, sees bathroom access as essential to participating in the world. “If you can’t use the bathroom at work, you can’t work,” she told me. “If you can’t use the bathroom at school, you can’t go to school.”
The majority of both active and inactive1 bills (69 percent) stipulated that multiple-occupancy bathrooms be separated according to users’ biological sex, not by their gender identity. However, about a fifth (22 percent) of the measures did not require separation. The bills that fell into the latter category looked to allow businesses, schools and other establishments to have the option to divide bathrooms without facing a nondiscrimination claim.
Most of the bills would require that public school bathrooms, in particular, be separated by sex. Illinois state Rep. Thomas Morrison was the sponsor of one of those school-related bills. He said he wrote his bill in response to a high-profile fight in Illinois in which a transgender student won access to the women’s restrooms and changing rooms in her school. He framed his bill as reactive, saying he wanted to return to what was once the status quo. “I think it’s appropriate to slow down a little bit,” he said. That North Carolina and other states were working on their own legislation, he said, didn’t factor into his decision.
For measures requiring that bathrooms be sex-segregated, the lawmakers needed to decide how, precisely, they would define biological sex. They used a range of definitions, and in two the definition was tautological (“as biologically defined”).2
Other bills got a lot more specific. Thirteen specified that chromosomes should be taken into account to define sex, but only Indiana’s House Bill 1079 was detailed enough to say that a female was defined as someone with “at least one X chromosome and no Y chromosome” and that males included everyone with “at least one X chromosome and at least one Y chromosome.” Washington’s Senate Bill 6548 and House Bill 2589 both allowed some transgender people to use the bathroom that matched their gender identity, provided that they’d had genital surgery and did not have “genitalia of a different gender from that for which the facility is segregated.” All three of those bills are now inactive.
North Carolina’s law has drawn particularly heavy criticism for its pre-emption of local laws. No local government is now permitted to pass a bathroom access or other nondiscrimination law that would conflict with the state law, which has frustrated activists in more liberal enclaves. Only three other bills tracked by the National Center for Transgender Equality — one in Missouri and two others in Washington — also featured pre-emption clauses. Of that threesome, only Missouri’s remains active.
Since the start of this year’s legislative session, bills in seven states have already faded away. But legislation is still under active consideration in seven others, so if those bills move forward, activists may have trouble boycotting all eight.