The bathroom police are coming.
In February Alabama is set to debate Senate Bill 1, also known as the Alabama Privacy Act. The legislation, which was prefiled by state Sen. Phil Williams in May, stipulates that restroom attendants must be present to monitor all mixed-gender facilities, including gender-neutral bathrooms. According to the bill, such staffers would be on hand to ensure the “appropriate use of the rest room,” as well as to “answer any questions or concerns posed by users.”
SB1 is yet another one of numerous bathroom bills targeting the transgender community that have been pushed by Republican legislators over the past year, most of which have failed. The Human Rights Campaign reported that more than 200 pieces of anti-LGBT legislation were debated at the state and local levels in 2016.
But in many ways, this bill goes further than previous efforts. House Bill 2, extremely unpopular legislation forced through North Carolina’s General Assembly in April, lacks any kind of enforcement provision. Although the legislation bars trans people from using public facilities that correspond with their gender identity, HB 2 does not outline who is responsible for upholding it. Many conservatives who pushed the bill believed that a violation of the statute would result in a criminal penalty for trespassing, while others have claimed that it wouldn’t be enforced at all.
Williams claimed in a statement that SB1 is designed as a response to Target, which announced last year that it would allow trans people to use bathrooms that match their gender identity in its stores. After backlash from conservative groups, including a boycott from the American Family Association, Target announced it would roll out gender-neutral facilities in all of its 1,800 locations.
The state senator wrote that the retailer’s policy violates other customers’ “right to privacy and right to feel secure.”
“As I write this a big-box retailer with multiple outlets in this state has made the self-determined decision to make all of their multi-stall restrooms unisex with a complete disregard for long standing law and tradition,” Williams wrote. “More egregiously, this decision was made with a complete disregard for the privacy and security concerns of the vast number of their customers. In essence, Target has thrown out the rule in favor of the exception.”
Williams added that businesses that persist in offering gender-neutral facilities will “provide [attendants] at their own expense.” He wrote, “In short, if you are going to play that game you need to ante up and face the issue.”
While the state senator is confident the bill will pass, Chase Strangio, the staff attorney for the LGBT and HIV Project at the American Civil Liberties Union, isn’t so sure.
“This Alabama bill is incredibly odd because it could never be enforced in anyway,” Strangio said. “The idea of staffing an attendant who literally polices people’s gender at the door of every bathroom is the privacy and big government nightmare I would expect conservatives to be concerned about. It’s hard to imagine how something like this would be enforced without violating almost every single Constitutional right the people value.”
Adding to the confusion is the fact that SB1 doesn’t define gender in its text, unlike HB2. The North Carolina law defines “biological sex” as “the physical condition of being male or female, which is stated on a person's birth certificate.”
The lack of specificity could be extremely harmful for people in Alabama, because it could allow attendants to determine what constitutes gender. While research from UCLA’s Williams Institute has showed that 70 percent of trans people surveyed said they had been verbally or physically assaulted in a public bathroom, reports from many states have indicated that cisgender women have been kicked out of restrooms for looking “too masculine.” After 22-year-old Aimee Toms donated her hair to cancer, she was harassed in a public facility in Connecticut by a stranger who shouted, “You’re disgusting!” and “You don’t belong here!”
While Williams claimed that his bill is not intended to police the gender of bathroom users and could actually help trans people, it’s likely to make these issues even worse.
“The ambiguity around gender makes it difficult to understand what this proposed bill is even trying to do,” said Randall Marshall, legal director for the ACLU of Alabama. While the bill was introduced in response to Target’s trans-inclusive policy, he added that anyone could be “subject to harassment under this bill because of someone’s ill-informed perception.”
But in addition to essentially tapping hall monitors to regulate how trans people do their business, SB1 has another alarming aspect: If businesses don’t follow the regulation by monitoring mixed-gender facilities, individuals who are forced to share a restroom with a transgender person could sue them for $2,000 in civil penalties ($3,500 for repeat offenses). The provision is similar to a bill introduced last year in Kansas that would have effectively placed a bounty on the heads of the state’s trans population: For every transgender student that cisgender people encounter in the restroom, they would be awarded $2,500 in damages.
Strangio argued that this provision sends a particularly harmful message to the LGBT community — that the experience of sharing public space with a transgender person is so awful that others should be compensated for the emotional and physical trauma caused. “It’s really insidious,” he said.
The fate of North Carolina may serve as a warning to Alabama should it pursue this dangerous, discriminatory law. The Tar Heel State has lost an estimated $5 billion year in annual revenue as a result of HB2. Over 200 companies called for a boycott of North Carolina following the passage of its anti-LGBT law, while businesses like PayPal and Deutsche Bank cancelled planned expansions to the state that would have added hundreds of jobs to its struggling economy. The NBA, which pulled an All-Star Game from Charlotte, recently said the league will continue to do so every year the law is in place.
Rachel Tiven, the CEO of Lambda Legal, said that voters have shown just how much damage the legislation had done to the state by voting out Pat McCrory, the governor who signed the bill into law and continued to defend it.
“Bathroom access was on the ballot in one state and one state alone: North Carolina,” Tiven said. “That’s where the governor lost his seat. It was the first time that an incumbent governor has been voted out of office in North Carolina history. So in the one place voters were asked to speak about how they felt about their state losing business over a non-issue — an invented issue — they said, ‘We don’t think highly of this kind of legislation at all.’”
Unfortunately, a number of states already prefiled bathroom bills for the 2017 legislative session, despite the potential economic backlash. Kentucky, Minnesota, Missouri, Texas and Virginia are pursuing bills, and Tiven believes that Donald Trump's presence in the White House will embolden other states to follow suit.
“It is first and foremost an attack on transgender people, but it’s really an attack on queer people and all sorts, as well as anyone who is different,” Tiven explained. “The message of the people pushing these bills is that we don’t want to see anybody that we don’t understand and we’re not comfortable with. This is a form of bullying. This is a way to say to people who are different: We don’t want you around. When the president-elect is a bully — and bullies people that he doesn’t respect — it sets an example for people elsewhere.”
According to Strangio, passage of these bills wouldn’t just keep trans people from using restrooms with cisgender folks. It would also effectively restrict them from participation in public life by making it impossible to be functioning members of society.
“If you’re going to face arrest or civil penalties or your employer is told they are going to be held liable if they don’t discriminate against you, the direct and unintended consequence of that is that you cannot go to school,” he said. “You cannot have a job. You cannot go to a hospital. You cannot go to the movies. It would send a message to trans people in Alabama that they are officially not welcome in the state.”