The past week at the Minnesota legislature, lawmaking business got overshadowed by a controversial hearing: last Tuesday’s showdown over the proposed law to prohibit transgender individuals from using the bathroom that corresponds to their preferred gender, not their gender at birth.
The scene that unfolded in St. Paul is hardly unique to Minnesota: since 2013, at least 29 states have considered some type of law seeking to define how bathrooms and other public facilities may be used by the sexes.
Those laws vary in letter, but the spirit is the same: restricting use of a designated gender’s restroom, or dressing room, to individuals who were born with that gender. In nearly every state, regardless of how far the law advanced, there was major public backlash.
Along with “religious liberty” statutes, transgender bathroom laws have become the next front in the culture wars. But where did these laws come from, and why are they cropping up now?
A recent phenomenon
The idea to legally define who can use which bathrooms and other gender-specific spaces — and to legally punish those who don’t comply — is a relatively new phenomenon. In 2013, Arizona was the first state to have a prominent battle over the issue in its legislature.
The policy picked up steam from there: in early 2015, lawmakers in more states, such as Texas, Kentucky, and Florida, rolled out bills criminalizing the use of school bathrooms by individuals whose biological sex, or their sex at birth, does not correspond to the sex specified on the bathroom.
In 2016, legislators in 19 states, including Minnesota, have introduced some type of bathroom statute. Geographically, there’s no real pattern, either: the bills come from deep-red Bible Belt states like South Carolina to liberal Oregon, where Democrats control both the executive and legislative branches.
While all the bills seek to impose some kind of legal rule regarding which genders can use which bathrooms, there is meaningful variation in the bills from state to state — particularly with regard to defining sex, exceptions to the rule, and enforcement.
For example, Minnesota’s statute reads, “No claim of nontraditional identity or ‘sexual orientation’ may override another person’s right of privacy based on biological sex in such facilities as restrooms, locker rooms, dressing rooms, and other similar places, which shall remain reserved for males or females as they are biologically defined.”
Compared to other states, the bill’s definition of the sexes — “as they are biologically defined” — is somewhat vague. In South Dakota, GOP Gov. Dennis Daugaard just vetoed a bill that would have prohibited an individual from entering a facility based on “…a person’s chromosomes and anatomy as identified at birth.” — a far less ambiguous definition.
The language in the Minnesota bill, and the language that was omitted, is somewhat less hard-line than what other states have considered. It specifically outlines some exceptions to the rule, like if an adult of a different sex needs to accompany a minor or disabled person in the facility, or if custodial staff needs to come in.
Minnesota’s bill also doesn’t have the enforcement language that has caused other states’ bills to earn headlines. A Kentucky bill introduced last year, for example, would have made going into a public restroom or changing room for the sex different from the “individual’s chromosomes” a misdemeanor crime punishable by up to a year in jail and up to a $4,000 fine.
A proposal put forth by state legislators in Kansas included a provision to let students sue a school district for up to $2,500 if they saw a student using the bathroom that didn’t correspond with their biological sex.
Transgender issues coming to the fore
A reason why these efforts to clarify bathroom and facility usage are happening now — and not, say, 20 years ago — has to do with the trajectory of the debate on LGBT rights, many say.
In recent years, not a few school districts and universities have adopted elements of gender-inclusion policy, which often entails permitting individuals to use the restroom or dressing room that they feel is best for them.
St. Paul Public Schools, for example, passed such a policy in March 2015, which included other measures, like permitting students to use their preferred gender pronoun, and prohibiting gender-segregated activities. SPPS said the policy was born out of complaints from transgender students about “fear of harassment” and “violations of personal privacy,” among other things.
These policies encountered swift backlash from conservatives.
On the right, advocacy groups have gotten involved in advancing the bathroom push. A powerful Christian legal advocacy group, the Arizona-based Alliance Defending Freedom, has distributed model language to local authorities aiming to enact bathroom laws, and has actively encouraged them to do so.
In the past, ADF has also provided pro bono defense to school districts that get legal challenges arising from bathroom policies. Rep. Glenn Gruenhagen, who wrote Minnesota’s bill, said that he received no outside advice, though he said he drew on the language from bills in other states, including North Carolina. (In 2015, Gruenhagen introduced language into the education omnibus that would have restricted bathroom usage, but it was eventually dropped.)
Where the debate is going
Despite all the attention, few states that have considered these bills have seen them get very far. One exception: North Carolina, which has a bathroom law on the books. Republican Gov. Pat McCrory is in the national spotlight for signing it into law.
Two transgender North Carolinians, along with advocacy groups, have filed a federal lawsuit against the state over the law. They hope the courts will declare it unconstitutional.
In the meantime, several states, including Minnesota, have fired back by banning “non-essential” travel to North Carolina. Several companies have withdrawn from the state, or are threatening to.
In Minnesota and other states, opponents of the bills have criticized the motivations behind them. LGBT rights groups and their allies see them as a tactic to keep them on the defensive and to help gin up grassroots enthusiasm and raise money.
According to Sen. Scott Dibble, DFL-Minneapolis, “This is right out of the Karl Rove playbook… I don’t think any of this is authentic,” he told MinnPost. “It’s cheap, lazy politics to benefit elections.”
If you ask Gruenhagen, Minnesota’s bill is simply intended to protect constituents. The Republican from Glencoe is a stalwart social conservative, and he is leading the charge for the policy in St. Paul.
Gruenhagen told MinnPost he wrote the legislation because constituents contacted him with concern. The bill, he said in an email, “originated from a constituent complaint to me regarding a man declaring himself to be a woman at her place of employment and using the women’s multi-stall restroom and the distress and discomfort this caused her and other women at her job.”
His law, however, is effectively stalled: there are no plans for it to receive a committee vote, there is substantial opposition in both chambers of the legislature, and Gov. Mark Dayton has promised to veto it should it come to his desk.
But no one is taking that as a sign that the issue is going away — in Minnesota or elsewhere. “It’ll be a horrible period of time for the next few years for our community because of fear-mongering,” Dibble said, though he added that eventually, “People shrug their shoulders and move on. The political half-life of this effort will be short.”
On that point, Gruenhagen disagrees. When asked if he’d introduce the legislation again next session if it were to fail, he told MinnPost: “Yes, I would again introduce the bill.”