Gender Identity Nondiscrimination Laws in Public Accommodations: a Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms

Abstract

Legal BackgroundState and local employment and public accommodations non-discrimination statutes and ordinances have included gender identity for over 20 years. In 1993, Minnesota passed the first statewide nondiscrimination law that included gender identity (Minn. Stat., 1993). Currently, 20 states and over 200 towns, cities, boroughs, and counties have nondiscrimination laws and ordinances that are inclusive of gender identity (Movement Advancement Project, 2017; Human Rights Campaign, 2016). In theory, employment nondiscrimination laws that include gen-der identity would apply to restroom use in the workplace, and public accommodations nondiscrimination laws that include gender identity would apply to public restrooms; however, the specific language, interpretation, and implementation of such laws and ordinances have varied throughout the country.There is no federal law that prohibits discrimination in employment or public accommodations based on gender identity. However, some federal agencies and courts 3 have interpreted laws that prohibit discrimination based on sex to include gender identity. For example, the Equal Employment Opportunity Commission held that Title VII's prohibition on sex discrimination in employment also prohibits discrimination based on gender identity in employment, including by requiring that employers allow employees to use restrooms in the workplace that are consistent with their gender identity (Lusardi v. Dep't of the Army, 2015). The Department of Housing and Urban Development has issued regulations to ensure equal access to shelter housing and restrooms without discrimination based on gender identity (Department of Housing and Urban Development, 2016), 4 and the Occupational Safety and Health Administration has issued guidance instructing employers to allow employees to have access to restrooms based on their gender identity (Occupational Safety and Health Administration, 2015). In 2016, the Civil Rights Divisions of the Department of Education and the Department of Justice issued guidance that students should have access to restrooms that correspond to students' self-identified gender identity (U.

TERF wars: An introduction

“…It is often trans women and non-binary people, especially trans women and non-binary people of colour, who are most vulnerable to gender-based violence in women-only spaces in material terms (see Jones and Slater, this collection). It is disproportionately cis people (both women and men) who are dangerous to, and perpetrators of violence against, trans women, not the other way around (Bachman & Gooch, 2018; Hasenbush et al, 2019). In this way, trans-exclusionary feminist politics can work to erase forms of gendered and racialised violence.…”

The transgender controversy: second response to Pilgrim

“…Having access to restrooms with restrictions on male use would most likely protect trans women. I take Pilgrim's (2018b, 5) point that trans women have been shown to have similar rates of offending as cis men, and whilst this creates a theoretical threat, in practice there is little evidence that there is a significant amount of abuse in female restrooms by trans women when they are allowed to use the women's restrooms (Hasenbush, Flores, and Herman 2018). Here are some statements taken from various groups who were responding to questions about whether there had been an increase in sexual assault after laws were enacted to allow trans women to use women's restrooms (Maza 2014).…”

Street-Level Bureaucrats and Intersectional Policy Logic: a Case Study of LGBTQ Policy and Implementation Barriers

“…States that offer protection on the basis of gender identity do so through general anti-discrimination laws, policies explicitly protecting gender identity within K-12 schools, and written guidance from state departments of education describing how schools should support a student’s gender identity. As of 2020, twenty-one states and the District of Columbia have anti-discrimination laws protecting people on the basis of gender identity (Movement Advancement Project 2020 ), while fifteen states and the District of Columbia have laws protecting the gender identity of students in K-12 schools (Hasenbush et al 2018 ) (See Table 1 ). Several additional states offer guidance through their Departments of Education on effectively supporting transgender students, essentially asking for voluntary compliance with the basic tenets of model policies (Hasenbush et al 2018 ; Kralik 2017 ).…”

“…As of 2020, twenty-one states and the District of Columbia have anti-discrimination laws protecting people on the basis of gender identity (Movement Advancement Project 2020 ), while fifteen states and the District of Columbia have laws protecting the gender identity of students in K-12 schools (Hasenbush et al 2018 ) (See Table 1 ). Several additional states offer guidance through their Departments of Education on effectively supporting transgender students, essentially asking for voluntary compliance with the basic tenets of model policies (Hasenbush et al 2018 ; Kralik 2017 ). Pennsylvania has no laws prohibiting discrimination on the basis of gender identity or sexual orientation, nor has Pennsylvania’s Department of Education issued guidance on supporting transgender students.…”

“…Thirteen states introduced anti-trans state laws or ballot initiatives, and fourteen states have considered legislation curtailing trans/GNC students’ rights at school (Kralik 2017 ). Six states proposed legislation overriding local laws protecting transgender rights, but only North Carolina passed such a law until the legislature repealed the controversial HB 2 in the face of economic pressures (Hasenbush et al 2018 ). At the local level, a limited number of individual school districts are establishing policies restricting the rights of transgender students.…”