Gender-Neutral Bathrooms Legislation

By Kim Arriola

On January 20, 2016, The City of Philadelphia’s gender-neutral bathroom law went into effect.[1]  The Philadelphia legislation requires all public, single-stall restrooms in city-owned building and privately owned businesses to be gender-neutral.[2]  Therefore, single-stall bathrooms will no longer be distinguished as “men’s” or “women’s.”[3]  This legislation comes with a recent string of LGBT non-discrimination bills aimed at protecting LGBT people from gender-based discrimination in housing, employment, and service.[4]  This legislation replaces Philadelphia’s previous law by allowing people to choose which gendered, single-stall bathroom they identified with when both were available.[5]

Gender-neutral bathrooms have taken over the country by storm with legislation being introduced in Washington DC, Austin, and Seattle.[6]  More than 150 US colleges and universities have also adopted gender-neutral measures in an effort to be more attractive to minority applicants.[7]  Even the White House now has a gender-neutral bathroom for visitors.[8]  San Francisco recently joined the ranks as well, with proposed legislation that would require city-owned buildings that house more than five multi-stall bathrooms to assign at least one bathroom as gender-neutral.[9]  The San Francisco legislation also applies to privately owned businesses with single stall restrooms.[10]  However, the legislation will not hold businesses that have restrooms with multiple stalls to the same standard.[11]

Support for gender-neutral bathrooms can be based in both gender arguments and non-gender arguments. One such gender-based argument is that gender-neutral bathroom legislation helps create a more accepting public environment for transgender people, who often receive harassment when going to either men’s or women’s bathrooms.[12]  However, San Francisco Supervisor David Campos also cites a number of non-gendered arguments in support of the legislation.[13]  Gender-neutral bathrooms aid mothers and fathers who want to accompany their children of the opposite sex.  Such bathrooms also aid disabled or senior citizens who have caretakers of the opposite sex. Gender-neutral restrooms also benefit women who are stuck in a long line for a single-person women’s room, while the men’s bathroom is available.[14]   Furthermore, restricting bathroom access may run counter to federal regulation.  For example, the Department of Education, citing the Civil Rights Act of 1964 in a 2014 memo entitled “Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities,” stated that a school “must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”[15]  Furthermore, rulings from the Department of Justice have found that preventing a transgender person from using the gendered bathroom they identify with is a form of sex discrimination.[16]

However, there has been some public backlash to the bathroom laws passed so far.  For example, there has been at least one federal lawsuit brought by the ACLU on behalf of a high school student alleging that forcing him to use a gender-neutral bathroom is discriminatory.[17]  Many parents have raised concern over how gender-neutral bathroom legislation will apply to local schools, fearing it will lead to sexual assault and may put their child in danger of physical abuse.[18]  There are also legal challenges under Title IX because Title IX does not protect against gender-based discrimination, only sex-based discrimination.[19]  Therefore, legal challenges to gender segregated bathrooms must be brought under state law rather than federal law.[20]

Furthermore, there may be claims for religious exemptions by privately owned businesses, which is similar to the recent conservative backlash against gay marriage by privately held enterprises.  Religious exemption excuses religious objectors from a generally applicable law due to religious beliefs.[21]  In order to have a viable religious exemption claim, objectors must show that the law is “necessary to serve a compelling governmental interest” and that the law “substantially burdens” their religious beliefs.[22]  It is unlikely that gender-neutral bathroom objectors will be able to establish that their beliefs are substantially burdened by requiring single-stall bathrooms to be gender-neutral, as unisex single-stall bathrooms are already common throughout the United States.[23]  Nevertheless, some legislation already includes religious exemptions for churches and other religious organizations.[24]

Finally with respect to the Philadelphia legislation, there is also the high cost of fines and penalties for a violation of the gender-neutral bathroom law.  Under the Philadelphia legislation, each day the business continues to violate the law is considered a separate offense, and therefore businesses can be fined up to $2,000 per day.[25]  Requiring single-stall bathrooms only places a low cost burden on business owners since gendered signs can be removed and replaced with gender-neutral signs.  However, a fine of $2,000 per day is a considerably high penalty, but it demonstrates that the city is taking gender-neutrality seriously.  By placing a high penalty for noncompliance, the city ensures that privately owned public businesses heed the legislation, which may help usher in a more open and tolerant society.

This legislation shows a movement to a more open-minded society and is a positive example of how the law is responding to the concerns and issues of a minority population.  However, this legislation does not address how gender-neutrality will apply in establishments that only have multi-stall gendered bathrooms, which is often where most of the danger for transgender persons arises.  Furthermore, the steep fine may arouse greater public backlash against the legislation where a lower, more moderate fine would be enough to ensure the enforcement of the legislation, especially as private businesses begin to incur multiple fines from failure to abide the law.[26]  While there are many issues that often come with enacting new legislation, gender-neutral bathroom laws can be seen as an encouraging step towards societal acceptance of the transgender community.

[1] Vimbai Chikomo, Philadelphia’s gender-neutral bathroom law effective Jan. 20; Attorney says lawsuits will soon be on the way, PennRecord (Jan. 6, 2016), http://pennrecord.com/stories/510656420-philadelphia-s-gender-neutral-bathroom-law-effective-jan-20-attorney-says-lawsuits-will-soon-be-on-the-way.

[2] Id.

[3] Id.

[4] Katy Steinmetz, States Battle Over Bathroom Access for Transgender People, Time (Mar. 6, 2015), http://time.com/3734714/transgender-bathroom-bills-lgbt-discrimination/.

[5] Chikomo, supra note 1.

[6] Id.

[7] Steinmetz, supra note 4.

[8] Id.

[9] NBC Bay Area Staff, San Francisco Supervisor Proposes Single-Stall Unisex Bathrooms, NBC Bay Area (Jan. 11, 2016), http://www.nbcbayarea.com/news/local/San-Francisco-Supervisor-Proposes-Single-Stall-Unisex-Bathrooms-364871131.html.

[10] SF Supervisor Pushing for Gender Neutral Bathrooms, CBS SF Bay Area (Oct. 21, 2015), http://sanfrancisco.cbslocal.com/2016/01/11/sf-supervisor-pushing-for-gender-neutral-bathrooms/.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Steinmetz, supra note 4.

[16] Id.

[17] Chikomo, supra note 1.

[18] Chris Luther, State Gender Identity Law Causes Controversy Over Bathroom, Locker Room and Dressing Room Use, NBC Right Now (Jan. 4, 2016), http://www.nbcrightnow.com/story/30883404/state-gender-identity-law-causes-controversy-over-bathroom-locker-room-and-dressing-room-use; Rallies voice concerns over gender-neutral bathrooms, WDTN (Sept. 1, 2015), http://wdtn.com/2015/09/01/protestors-gather-at-troy-hs-over-gender/.

[19] Phanthavong et al. , Push for gender neutral bathrooms gaining traction at U.Va, Cavalier Daily (Oct. 21, 2015), http://www.cavalierdaily.com/article/2015/10/university-plans-gender-neutral-bathroom-installation.

[20] Id.

[21] Eugene Volokh, Religious exemptions – a guide for the confused, The Washington Post (Mar. 24, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/religious-exemptions-a-guide-for-the-confused/.

[22] Id.

[23] Id.

[24] Steinmetz, supra note 4.

[25] Chikomo, supra note 1.

[26] Id.