Groundhog Day

Will Anti-Trans Bathroom Bills Ever Die?

South Dakota is once again considering a measure that would ban transgender students from using school facilities that correspond with their gender. The anti-trans bills just keep on coming.


Anti-transgender bathroom bills are like horror movie villains: No matter how many times you kill them, they keep coming back.

Such is the case with South Dakota’s unkillable “bathroom bill,” which Republican Governor Dennis Daugaard vetoed last year, writing that it “does not address any pressing issue concerning the school districts of South Dakota.”

Seemingly suffering from amnesia, the South Dakota state legislature decided to kick off 2017 by again considering a measure that would ban transgender students from using school facilities that correspond with their gender, as the Associated Press reported earlier this week.

Once again, Gov. Daugaard announced this Thursday that he would veto the bill if it came to him, telling South Dakota Public Radio, “I haven’t heard one instance of a problem in this area. Not one. But we have seen major problems in North Carolina when a bill like this was enacted.”

The severe economic ramifications that North Carolina is suffering over its own anti-LGBT law, HB2, may prevent South Dakota from following a similar fate.

But that hasn’t stopped several other states that are considering anti-transgender legislation in 2017, even if they have already failed once before.

The false pretense of protecting women and minors from sexual predators posing as transgender people—a problem that, as The Daily Beast’s Jay Michaelson has repeatedly reported, was invented by anti-LGBT groups—is finally starting to wear off.

No, the new wave of bathroom bills is directly, clearly, and unmistakably targeted at transgender people themselves.

According to the National Conference of State Legislatures, legislators in 11 states concentrated in the South and Midwest—including Texas, South Carolina, and Minnesota—have bathroom bills under consideration in the 2017 legislative session. If it wasn’t apparent before that some state legislators won’t quit until they manage to codify transphobia into law, it should be eminently clear by now.

Take, for instance, South Dakota’s second bathroom bill go-round, which would define a person’s “biological sex” by their “original birth certificate,” as ThinkProgress highlighted. (The recently-defeated bathroom bill in Virginia used similar language.)

In the majority of U.S. states—as the lawmakers behind these bills must realize—transgender people can have their birth certificate amended or reissued following sex reassignment surgery, which means that the bill could have banned transgender women with vaginas from using the women’s room and transgender men with penises from using the men’s room.

If the goal of these bills were to keep different kinds of genitals from coexisting in one private space, the “original birth certificate” language would not be necessary; the presence of that language indicates that transgender people are indeed the intended target, not “sexual predators.”

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(An unforeseen consequence of these “original birth certificate” bills would be to ban cisgender people who have corrected clerical errors in the sex/gender fields on their birth documents from using the right bathrooms, too (PDF). So far, the text of these bills have not made any provision for that not-unheard-of circumstance.)

Contrast the “original birth certificate” approach with another anti-transgender bathroom bill filed in Washington state, HB 1011, which applies to any “person [who] is preoperative, nonoperative, or otherwise has genitalia of a different gender from that for which the facility is segregated.”

This bill, at least, makes a small exception for people who have undergone sex reassignment surgery but, by using language like “preoperative,” it still decidedly puts transgender people in its crosshairs.

Many transgender people cannot afford costly surgery, have a health contraindication that would prevent them from receiving it, or do not find it necessary to alleviate their dysphoria, but HB 1011 would still treat them as if they were entering the bathroom for a nefarious purpose.

And while Washington legislators try to define gender by genitalia, Kansas state Rep. John Whitmer wants to define it by chromosomes.

As The Hutchinson News reported Thursday, Whitmer proposed an anti-transgender bathroom bill last year that failed to advance.

But he’s back at it again with HB 2171 (PDF), a bill introduced on Thursday that would define “sex” as “the physical condition of being male or female, which is determined by a person’s chromosomes, and is identified at birth by a person’s anatomy.” (This is similar to the language that appeared in last year’s version of South Dakota’s bathroom bill as well as the bathroom bill currently under consideration in Minnesota.)

This “chromosome” provision is virtually unenforceable: Would potential restroom users have to carry a karyotype with them wherever they went? It also explicitly targets transgender people, defining them not by their lives or even their bodies but by their DNA.

In so doing, it would also open up a range of potential unintended targets: How would Kansas handle restroom use for intersex children, for example, or others born with a chromosomal makeup that is neither XX nor XY? “Sex,” it seems, is not always as easy to define as some state legislators seem to think it is.

Even as the full-on attack on transgender restroom rights enters its second year, there are still those who insist that bathroom bills have nothing to do with transgender people.

In Texas, where the state legislature is currently considering SB 6 despite widespread threats of boycotts, state Senator Lois Kolkhorst said this past Tuesday, “It’s really not about the transgender. It’s about other people that will abuse that.”

But if “sexual predators” are really the concern here rather than “the transgender,” why aren’t these states simply beefing up the punishments for violations of their preexisting voyeurism and peeping Tom laws?

Why start dividing people up by their chromosomes, genitalia, and birth certificates when predatory behavior in bathrooms and locker rooms is already illegal?

The answer to those questions is obvious: These bills are aimed squarely at transgender people, who already suffer widespread violence, discrimination, and harassment, often inside bathrooms themselves.

The answer to the following question is, sadly, less clear: When will these bathroom bills stop?