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The Rise and Fall of the Bathroom Bill: State Legislation Affecting Trans & Gender Non-Binary People

April 2, 2019 Diana Ali NASPA
KEY HIGHLIGHTS:
  • In 2017 and 2018, most of the focus on limiting trans and gender non-binary individuals’ rights has been in the form of “bathroom bills.” While many of these measures have been introduced, most have not progressed,
  • In 2019, only Indiana (IN HB 1525) has introduced a traditional ‘bathroom bill.’ Measures moving forward in 7 states primarily work to expand the rights of trans and gender non-binary individuals,
  • In 2019, discriminatory measures in Tennessee, Georgia, and Texas target the LGBTQIA community through criminalizing trans and gender non-binary body exposure in public facilities, and under the guise of religious liberty or exemption.

The tenuous nature of trans and gender non-binary students’ rights has remained in the spotlight for the last several years, with media attention focusing both on the discrimination faced by LGBTQIA students in education and the ways that those students are fighting back. NASPA has tracked consistent rollbacks from the current administration, which seem to correlate with an onslaught of discriminatory “bathroom bills” which started appearing at the state-level during the 2017 and 2018 legislative cycles.

2017 & 2018 State Legislative Outcomes

Legislation introduced in 2018 followed the model of North Carolina’s notorious HB 2[1], limiting multi-occupancy bathroom access based on sex as assigned at birth. NASPA’s Policy and Advocacy Team tracked various iterations of bathroom bills across 16 states in 2017, none of which moved forward to pass, despite Texas bringing two measures (TX HB 46 and TX HB 50) into special session. In 2018, NASPA expanded tracking to include additional measures affecting the trans and gender non-binary community in 14 states.

The three measures which passed in 2018 all furthered protections to the trans and gender non-binary community. Vermont House Bill 333, passed in May 2018, requires all single-user bathrooms in public buildings or places of public accommodation to be marked as gender-neutral. Hawaii House Bill 1489, passed in July 2018, expanded anti-discrimination to include gender identity or expression and created a study on how other jurisdictions oversee Title IX enforcement. To note, the measure was substantially trimmed from its first few drafts, limiting its impact. Finally, New Jersey Senate Bill 705 also passed in July 2018, established New Jersey’s Transgender Equality Task Force to assess legal and societal barriers to equality and provide recommendations to the New Jersey Legislature.

2019 State Legislation in Progress

The 2018 midterm election resulted in a historic ballot measure when Massachusetts upheld a trans and gender non-binary inclusive initiative to prohibit discrimination based on gender identity in public facilities. The election also changed the likelihood of Texas reintroducing and pushing forward bathroom bill legislation as lawmakers in support of the discriminatory legislation were voted out of office and Governor Greg Abbott indicated that passing a bathroom bill was not a part of his 2019 agenda. Other states have followed suit, and only Indiana (IN HB 1525) has introduced a traditional ‘bathroom bill’ in 2019.

Measures moving forward in 7 states primarily work to expand the rights of trans and gender non-binary individuals. New York (NY A 4744) is focused on offering LGBTQIA focused curriculum in public schools. The District of Columbia (DC B 840) and Hawaii (HI SB 1042; HI HB 483) are working to expand the collection of available data and research. Additional measures in New York (NY A 5240) and Connecticut (CT HB 6219) aim to ensure the protection of bathroom and facility use access by trans and gender non-binary individuals.

 

State legislatures may still move to adopt discriminatory legislation in 2019 and 2020, aside from that of a typical bathroom bill format. Discriminatory measures that have been introduced in Tennessee, Georgia, and Texas. Tennessee House Bill 1151 for instance, would expand indecent exposure incidents to include any individual using a public facility identified as “a member of the opposite sex than the sex designated for use.” The legislation has advanced in 2019, passing out of a House panel on Wednesday, March 27, and is being referred to as a “watered down bathroom bill.”

In Georgia a stringent religious liberty measure (GA SB 221) has been introduced after Governor Brian Kemp indicated he would sign such a measure should it reach his desk as part of his election platform. The bill, while stalled in the Senate for now due to its controversy, would allow Georgia businesses to refuse serving LGBTQIA individuals, or measures to limit same-sex couples from fostering youth.

Finally, Texas has introduced two measures that have been flagged by LGBTQIA advocacy groups: Texas Senate Bill 15, a bill regarding paid leave for employees, and Texas Senate Bill 17 regarding professional licensures. TX SB 15 was rewritten before passing out of committee to remove the inclusion of local nondiscrimination ordinances, and could impact all local nondiscrimination policies beyond that of paid leave in Texas. TX SB 17 would allow professional license holders to engage in discriminatory conduct or language on the basis of religious exemption without the risk of losing their licenses. Both measures have passed out of committee, but have yet to come to a floor vote. Advocacy and business groups opposed to the Texas 2017 bathroom bill measures have reunited in protest against the passage of these two measures in 2019.

As many state legislatures move to wrap up in April, the NASPA Policy and Advocacy Team is working to provide analysis on a number state-level issues impacting the higher education community. Have you seen our posts on free college and free speech? Look for upcoming 2019 state-level analyses on firearms on campus, sexual assault prevention and response, and in-state tuition for undocumented students in early April.

*Thumbnail picture courtesy of Pixabay



[1] later replaced with a slightly lighter, though still discriminatory policy