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Florida’s Bathroom Problem

Need to use a public restroom? If you live in Florida, that might soon be a criminal act, depending on who you are. On February 4th, Florida Representative Frank Artiles introduced HB583 in the state legislature, a bill that, if passed, would attempt to police the usage of single-sex public bathrooms.

The bill, titled “Single Sex Public Facilities,” specifically targets transgender individuals, as well as gender nonconforming and non-binary folks. The text of the bill explicitly states that its purpose is to require “that the use of single-sex public facilities be restricted to persons of the sex for which the facility is designated,” and to “prohibit knowingly and willingly entering a single-sex public facility designated for or restricted to persons of the other biological sex.” It thus identifies “biological sex,” which it defines as “either male or female, at birth,” as single-sex bathrooms’ primary and uncompromising gatekeeper. Implicit in the bill’s text, of course, is the assumption that each individual’s sex falls onto either side of this binary and that this “fact” has remained constant since birth. This assumption erases altogether the experiences of intersex persons, who account for about 1 in 2,000 births, a conservative estimate, and it criminalizes transgender, non-binary, agender, genderfluid, or otherwise gender nonconforming folks – just for using the bathroom.

The bill goes on to outline stiff penalties for violating the act – that is, entering a public facility intended for the “other” or “opposite” sex. For the purposes of this bill, “public facility” includes bathrooms, dressing rooms, fitting rooms, locker rooms and showers in schools, businesses and all other public accommodations, a broad category that includes movie theaters, restaurants, hotels, museums and libraries. If you are other than cisgender and you have left your private home on an outing, to work, or for school, you are essentially out of luck unless you happen to have access to an all-gender or one-stall bathroom – options that are unfortunately usually unavailable.

Even more harshly, HB583 declares that an individual found in a bathroom meant for the “opposite” sex faces up to a year in prison or as much as a $1,000 fine. What’s more, anyone who happens to be using the facility when a trans person is discovered may file a civil suit against the so-called trespasser for the “damage caused by the unlawful entry.” Owners of schools, businesses or public accommodations may also be liable if they allow trans persons to use restrooms that correspond with their gender identity, rather than their “biological sex,” or if they fail to take action against a trans person once learning of an “unlawful entry.” These are harsh punishments that treat members of the LGBTQ community as unwanted intruders, dangerous criminals, and lurking abnormalities.

So why can’t trans people simply comply with the demands of Representative Artiles and his supporters and avoid these criminal penalties? To compel a transgender person – or any person, for that matter – to use a bathroom that does not match his, her or their personal gender identity is to violate that individual’s sense of self. This could induce extreme discomfort and possibly cause harassment within the bathroom itself. Imagine the discomfort a cisgender person might feel upon entering the “wrong” bathroom, but then add to that anxiety the accumulated effects of years of transphobia and dysphoria. Opponents may dismiss the concerns of trans people, but the bathroom law has the potential to inflict serious trauma.

The bill’s writers claim that the legislation is intended to “secure privacy and safety for all individuals using single-sex public facilities.” The bill reads, “The legislature finds that a) There is a longstanding history of restricting access to single-sex public facilities on the basis of sex. b) There is expectation of privacy in single-sex public facilities… d) Single-sex public facilities are places of increased vulnerability and present the potential for crimes against individuals using those facilities, including, but not limited to, assault, battery, molestation, rape, voyeurism, and exhibitionism.” This explanation is problematic on several fronts. First, precedent alone is unconvincing if new concerns – like LGBTQ rights, largely ignored until recently – merit attention. Second, it is unclear how the presence of a trans woman in an enclosed bathroom stall nearby would violate the privacy of a cis woman any more than a cis woman nearby would violate the privacy of another cis woman. The bill does not elaborate on this point.

Third, the bill gives in to sensationalistic rhetoric, invoking the specter of a molester creeping into a women’s bathroom disguised as a trans woman in order to commit a sex crime. This theory has been disproven time and time again as more states and localities pass anti-discrimination legislation. For example, the police superintendent of Cambridge, Massachusetts, a city that has had an ordinance prohibiting discrimination against transgender persons in public places since 1997, told Media Matters, “Since this 1997 amendment there have been no incidents or issues regarding persons abusing this ordinance or using them as a defense to commit crimes. Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.” This is not to say that such an event could never occur, but it is unlikely, and the benefits of allowing transgender folks to access public restrooms in a safe, respectful manner outweigh this concern.

The reader of HB583 is left with the following questions: Who is supposed to stand watch at restrooms’ entrances? Employers? Fellow bathroom-users? By what standards are watchdogs supposed to identify bathroom trespassers? One’s “biological sex” is not necessarily evident. Must everyone bring with them legal documents as proof when attempting to use a public restroom? Will a physical examination of each person be performed upon entrance? The bill offers no guidance, nor does it allude to the practical infeasibilities and violations of privacy it would enact.

This is “the bathroom problem.” “The bathroom problem,” termed as such by Jack Halberstam in Female Masculinity, refers to the difficulties faced by gender nonconforming and transgender folks as they attempt to use public restrooms. These difficulties range from ridicule and questioning at the hands of fellow bathroom users, to physical abuse or police interference. Halberstam writes in Female Masculinity, “For Jess [the main character in Stone Butch Blues by the late Leslie Feinberg], the bathroom represents a limit to her ability to move around in the public sphere. Her body, with its needs and physical functions, imposes a limit on her attempts to function normally despite her variant gender presentation… Another time, Remedios [a character in Throw It to the River, by Nice Rodriguez] tells of being chased from a ladies’ room and beaten by a bouncer. The bathroom problem for Remedios and for Jess severely limits their ability to circulate in public spaces and actually brings them into contact with physical violence as a result of having violated a cardinal rule of gender: one must be readable at a glance… Although restroom signs seem to serve and ratify distinctions that already exist, in actual fact these markers produce identifications within these constructed categories.” Here, Halberstam outlines the physical and emotional burden that the bathroom problem places upon non-cisgender persons. The constant stress of bathroom access restricts individuals’ ability to travel through public spaces. Furthermore, single-sex restrooms fortify the gender binary rather than simply represent it.

The public and the private intersect meaningfully in the sphere of public restrooms. Ultimately, this exceeds the issue of bathroom access and arrives at questions of cultural values: Who do we as a society view as within the limits of acceptable personhood, as deserving of basic human dignity and respect? Who do we allow into our public spaces, and who would we rather not see? Who is represented in society and who is erased?

Thankfully, a number of colleges and universities have made important strides, moving in the opposite direction of HB583 by offering alternatives to single-sex bathrooms. The University of Rochester’s Students’ Association Government, for example, recently passed a resolution in favor of constructing all-gender bathrooms on campus. A July 2014 Huffington Post article, titled “Gender-Neutral Bathrooms Are Quietly Becoming The New Thing At Colleges,” notes that over 150 colleges have made the move toward all-gender bathrooms.

Let’s hope that Representatives Artiles and likeminded folks soon get on board with these efforts for equal access, self-determination, and mutual respect for difference.

About the Author

Ashleigh McEvoy '15 is a political science and gender studies double concentrator and a staff writer for BPR.