Indiana Legislature 2016: Year of the Bathroom

The smallest room seems poised to be the biggest issue for the Indiana General Assembly this year. I already posted about Sen. Mrvan’s bill seeking to make certain private bathrooms in retail establishments available to people who suffer from Crohn’s Disease and the like.

Sen. Holdman’s SB 100 concerning sexual orientation, gender identity and religious freedom (see my write up here) contains provisions which I described as:

7. The chapter permits separate restrooms, shower facilities, dressing facilities based on sex, sexual orientation, or gender identity. The attorney general will defend charter schools, public schools, local governments (and the State) against lawsuits based on allegations that their policies with respect to restrooms, shower facilities, and dressing facilities are discriminatory.

And, now, I see Sen. Tomes has introduced SB 35 entitled “single sex facilities” which seems primarily targeted at transgender people. But, in practice, its larger impact may be to turn women at college bars into criminals when they use the men’s bathroom because of the shorter line. The bill has two main provisions – one for schools, and another for public facilities.

In schools, Sen. Tomes’ bill requires that any “student facility” (being a locker room, restroom, or shower room designed for use by multiple students at the same time) be designated as either male or female and requires that a student facility for females be used by only students of “female biological gender” and one for males be used by only students of “male biological gender.” Non-student visitors get to use an outhouse in the back, perhaps?

As I understand it, the use of “biological gender” may be a bit of a problem. The bill defines the term as referring to the person’s chromosomes and physical characteristics. I’m no expert in the field, but I think the biology relates to sex and gender relates to more to a person’s social role or personal identification. “Biological sex” might be the better terminology. (See Wikipedia entry).

Outside of school, Sen. Tomes’ bill creates a crime called “single sex public facility trespass.” It applies to public accommodations with locker rooms, restrooms, and shower rooms in places of public accommodation accessible by multiple people at the same time and designated for use by only males or females. It then defines females as someone “who was born female at birth” or someone having “at least one x chromosome and no y chromosomes.” (So, for the first option, he makes the drafting mistake of defining a thing by referencing the thing itself — a “female” means someone who was born “female” — a defined term.) A male is someone who was born male at birth or who has at least one x chromosome and at least one y chromosome. So, for all that verbiage, it appears that if you have a Y chromosome, you go to the men’s room and if you don’t have a Y chromosome, you go to the ladies’ room. It’s a Class A misdemeanor if a female knowingly or intentionally enters a men’s room (or vice versa.) However, she is permitted to clean the toilets in there — exceptions are made for maintenance, for assisting in a medical emergency, and for accompanying a child less than 8 years of age. (The chapter also doesn’t apply to children under 18.)

The main problem is that sex and gender just aren’t as simple as Sen. Tomes’ wishes they were. And this, frankly, underlies a lot of what seems to come out of social conservatism. Gender occupies a spectrum and isn’t binary. There are challenges to accommodating that spectrum if we’re going to keep our bathrooms binary. Making matters worse, most of us get more wound up about nakedness and excretory functions than is probably necessary. The added emotional charge just makes dealing with the issues even more challenging. You have a person who feels like a man but looks like a woman who, like everyone else, needs to go to the bathroom from time to time. You have these binary bathrooms and people in them who are uncomfortable with the presence of someone who, outwardly anyway, looks like a person of the opposite gender. And, you have pooping and peeing and visible genitals. These are not the ingredients for a logical conversation about sound policy.

Dominic Holden, writing for Buzzfeed, has a column entitled “Why America’s Top LGBT Group Is Losing An Argument Over Bathrooms” where he observes that, despite the recent political successes for advocates of LGBT rights, they have been losing ground when bathrooms get involved. Describing the reason for the failure of an equal rights ordinance in Houston, he writes:

Their defeat can be attributed primarily to one ubiquitous, bumper-sticker-ready slogan: “No men in women’s bathrooms.” Anti-LGBT activists ran that message with visceral TV and radio commercials that claimed Houston’s nondiscrimination law would lead to men sexually assaulting young girls in public restrooms. This attack has been raised by conservative opponents virtually everywhere laws like this have been debated in recent years.

The argument is based on an underlying premise that transgender women are actually dangerous men — a claim that has no factual foothold. It’s never been an issue in the 200 cities and 17 states with laws like these on the books. But it’s kryptonite to LGBT nondiscrimination laws.

Based on that insight, I think we can expect to hear a lot more about bathrooms this session.