Marchers walk through the French Quarter in New Orleans for Transgender Day of Visibility on Friday, March 31, 2023. (Greg LaRose/Louisiana Illuminator)
Congress has a long list of pressing priorities — including funding the federal government to prevent a shutdown — that it is likely to put off until 2025. One new item packed on that to-do list: legislation introduced by GOP Rep. Nancy Mace to ban transgender women from women’s restrooms, and transgender men from men’s restrooms, on any federal property.
The South Carolina lawmaker proposed this bill after launching a campaign to remove newly-elected Rep. Sarah McBride of Delaware from women’s restrooms on Capitol Hill. After House Speaker Mike Johnson announced a rule that effectively matched her initial proposal, Mace expanded her proposed bill to restrict the ability of all trans Americans to use restrooms, locker rooms or changing rooms on federal property across the country.
If passed into law, how would such a bill be enforced, and what would be the consequences? And what is the atmosphere like right now for transgender lobbyists and advocates who work on the Hill? The 19th spoke with multiple experts to find out.
Where would such a law apply?
Such a far-reaching law would mean widespread discrimination against all transgender people, experts say, although Mace’s rhetoric has singled out trans women. It would have the potential to expose trans and nonbinary people to harassment and discrimination at national parks, courthouses, IRS buildings like taxpayer assistance centers, Social Security Administration offices, and some post offices and Native American lands.
If enforceable, this federal ban would exclude trans people from spaces that are meant to be among the most accessible to Americans, said Kelly Dittmar, an associate professor of political science at Rutgers-Camden University and the director of research at the Center for American Women and Politics (CAWP).
“I would assume in this case, we’re talking about Smithsonians and other federal buildings, museums, landmarks, things that should be accessible to the population in part because they are government funded or run,” she said.
The language in Mace’s proposed bill would restrict bathroom access in “any building, land, or other real property owned, leased, or occupied by any department, agency, or instrumentality of the United States (including the Department of Defense and the United States Postal Service), or any other instrumentality wholly owned by the United States, or by any department or agency of the District of Columbia or any territory or possession of the United States.”
As the Washington Post reports, this proposal would likely impact the public libraries, recreation centers, and public schools of Washington, D.C. — which is home to a large population of LGBTQ+ residents and is slated to host World Pride in 2025.
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How likely is it that this ban will become law?
Mace’s bill is unlikely to advance until the new Congress is sworn in this January, as the Senate is currently adjourned until December 2, and members are preoccupied with major defense and agricultural measures. When and if this bill does come into play, it would have to overcome a potential filibuster by Senate Democrats, despite Republicans holding a majority in each chamber. It is also unclear how much support Mace holds for this bill among Republicans.
How would this law be enforced?
There are no details in Mace’s proposal about how nationwide restrictions on trans Americans’ bathroom use would be enforced, and her office did not respond to a request for comment. To understand what such a ban would look like in practice, experts point to state bathroom bans that have percolated, and largely failed to become law, since 2015.
These state bathroom bans provide few, if any details about how they would be enforced because they don’t need to — private citizens are often meant to be the enforcers, said Logan Casey, director of policy research at the Movement Advancement Project, a nonprofit that tracks LGBTQ+ legislation.
“The way that the laws are de facto enforced is often through the emboldening of private individuals to police other people’s bathroom use,” he said. “There’s no written enforcement because the proponents of these bills know that just by talking about this, let alone enacting these laws, that they are emboldening individual people themselves to enforce these bathroom bans.”
A recent example that takes this formula to an extreme can be seen in Odessa, Texas. A new expansion of the West Texas town’s ordinance allows individual citizens to sue transgender people caught using bathrooms that match their gender identity and seek “no less than $10,000 in damages,” per the Texas Tribune.
Deputizing private citizens to enforce this kind of law enables high rates of harassment and violence against transgender people as well as cisgender people, Casey said, particularly women who do not conform to traditional ideas of femininity.
What’s going on at Capitol Hill? Are trans people banned from bathrooms there?
“All single-sex facilities in the Capitol and House Office Buildings — such as restrooms, changing rooms, and locker rooms — are reserved for individuals of that biological sex,” Johnson said in a statement on Wednesday. The policy appears to apply to all transgender people working at the Hill or simply visiting the building complex. Johnson’s office did not respond to a request for comment confirming this.
Johnson’s statement also does not explain how the new policy will be enforced. Mace’s original bill proposed that the House sergeant-at-arms would enforce a bathroom ban, but Johnson’s announcement made no such reference. His office did not respond to a request for comment on the new rule.
Without any clarity on enforcement, trans lobbyists and advocates like Caius Willingham, a senior policy analyst at Advocates for Trans Equality, are forced to wait and see whether they will be policed for trying to do their jobs and what the consequences of noncompliance could be. Unlike members of Congress, these employees don’t have access to private facilities — and when working on the Hill, alternative options are few and far between.
“The Capitol grounds are massive. Some buildings don’t even have a single, single-occupancy bathroom. So practically, if I’m going to spend the day on the Hill meeting with legislators and staff, which is core to my job, I may have to be strategic about what bathrooms I use,” he said. “I might have to run outside, to find a restroom outside the Capitol building.”
The broader implications of a federal bathroom ban would essentially extend this ban to all of D.C., he said, considering how many people work in federal buildings.
Is this legal?
Within the courts, there has been a split in opinions: Last year, the 11th U.S. Circuit Court of Appeals upheld a Florida policy banning transgender students from using bathrooms that match their gender identity. However, in 2021, the Supreme Court handed a win to trans advocates by keeping in place a 4th U.S. Circuit Court decision that found a Virginia bathroom ban unconstitutional.
Across the country, two states — Utah and Florida — ban trans people from using bathrooms and facilities that match their gender identity in all government-owned buildings, K-12 schools, and colleges, according to the Movement Advancement Project. Breaking that law is a criminal offense in Utah and Florida. Seven other states have passed laws restricting trans Americans’ bathroom usage only in K-12 schools.
Article I of the Constitution gives Congress broad jurisdiction over its own internal rules and procedures. But Mace’s proposed federal bathroom ban could run afoul of recent Supreme Court precedent, said Barbara Comstock, a former Republican congresswoman from Virginia. The majority opinion In the Supreme Court’s 2020 decision in Bostock vs. Clayton County, authored by conservative Justice Neil Gorsuch, ruled that discrimination on the basis of sexuality or gender identity constitutes unconstitutional sex discrimination.
“I don’t think they’ve looked at this in light of the law whatsoever,” Comstock said. “So I think this is just an embarrassing stunt — which does raise attention to the challenges and discrimination faced by transgender Americans.”
Who is actually endangered by trans people using the bathroom?
Research shows that trans people, not cisgender people, are actually the ones who experience violence and discrimination when using the restroom.
The 2015 U.S. Transgender Survey found that many trans people avoid public restrooms out of fear of how they may be treated. 26 percent of over 27,000 respondents said that in the previous year, they had been denied access to restrooms, had their presence in a restroom questioned, or were verbally harassed, physically attacked or sexually assaulted in a restroom.
Research from the Williams Institute at the University of California, Los Angeles School of Law, in 2018 found that expanding non-discrimination laws to include transgender people does not affect the number or frequency of criminal incidents in restrooms, locker rooms and changing rooms. While Mace and other Republican lawmakers have claimed that banning trans women from women’s restrooms will protect women, empirical evidence does not show that including trans people actually leads to safety or privacy incidents.
Willingham said that when he worked in the House as a legislative assistant to Rep. Pramila Jayapal of Washington from 2021 to 2023, his identity as a transgender person was never made an issue. He watched as members of Congress would share transphobic rhetoric at hearings and floor debates and then treat him, an actual trans person, with respect. It was a jarring experience.
“It’s really frustrating to see things go backwards in Congress,” he said. “My experience working even across the aisle was extremely positive.”
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