Gender Identity Nondiscrimination Laws in Public Accommodations: a Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms
Legislation, regulations, litigation, and ballot propositions affecting public restroom access for transgender people increased drastically in the last three years. Opponents of gender identity inclusive public accommodations nondiscrimination laws often cite fear of safety and privacy violations in public restrooms if such laws are passed, while proponents argue that such laws are needed to protect transgender people and concerns regarding safety and privacy violations are unfounded. No empirical evidence has been gathered to test such laws’ effects. This study presents findings from matched pairs analyses of localities in Massachusetts with and without gender identity inclusive public accommodation nondiscrimination ordinances. Data come from public record requests of criminal incident reports related to assault, sex crimes, and voyeurism in public restrooms, locker rooms, and dressing rooms to measure safety and privacy violations in these spaces. This study finds that the passage of such laws is not related to the number or frequency of criminal incidents in these spaces. Additionally, the study finds that reports of privacy and safety violations in public restrooms, locker rooms, and changing rooms are exceedingly rare. This study provides evidence that fears of increased safety and privacy violations as a result of nondiscrimination laws are not empirically grounded.
KeywordsTransgender Gender identity Discrimination Safety Restroom Public accommodations Law
The authors would like to thank Kerith Conron and Brad Sears for their extensive feedback on analytical approaches and presentation of findings. The authors would also like to thank the records keepers at the police departments throughout Massachusetts who assisted in responding to the public records requests that were a necessary part of the data collection for this project. The authors would also like to thank Chrissy Reinard and Joseph Rocha, who provided assistance in executing one round of public records requests. Thanks also go to Taylor Brown, who provided research assistance on crime rates throughout New England, and Fernanda Miramontes, who copy edited this paper. Finally, thank you to the editor and anonymous reviewers for their feedback and publication assistance.
Compliance with Ethical Standards
This article does not contain any studies with human participants or animals performed by any of the authors. An IRB exemption was obtained by the authors for use of de-identified criminal record data (IRB#15-001060).
Conflict of Interest
Amira Hasenbush declares that she has no conflict of interest. Andrew Flores declares that he has no conflict of interest. Jody Herman declares that she has no conflict of interest.
- American Civil Liberties Union. (2017). G.G. v. Gloucester County School Board. Retrieved March 16, 2018, from https://www.aclu.org/cases/gg-v-gloucester-county-school-board.
- Andersen, E. A. (2017). Transformative events in the LGBTQ rights movement. Indiana Journal of Law and Social Equality, 5(2), 441–475.Google Scholar
- Badgett, M. V. L. (2001). Money, myths and change: Economic lives of lesbians and gay men. Chicago: University of Chicago Press.Google Scholar
- Department of Housing and Urban Development (2016, September 20). HUD issues final rule to ensure equal access to housing and services regardless of gender identity. Retrieved May 25, 2017, from https://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2016/HUDNo_16-137
- Equal Employment Opportunity Commission v. Harris Funeral Homes, 884 F.3d 560 (6th Cir. 2018)Google Scholar
- Fausset, R. (2017, March 29). Retrieved May 2, 2017, from https://www.nytimes.com/2017/03/29/us/north-carolina-lawmakers-reach-deal-to-repeal-so-called-bathroom-bill.html.
- Federal Bureau of Investigation. (2016). Crime in the United States by region, geographic division, and state, 2014–201. Retrieved February 2, 2017, from https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-4.
- Fernandez, M., & Smith, M. (2015, November 3). Retrieved May 2, 2017, from http://www.nytimes.com/2015/11/04/us/houston-voters-repeal-anti-bias-measure.html?_r=0.
- Fetner, T. (2008). How the religious right shaped lesbian and gay activism. Minneapolis: University of Minnesota Press.Google Scholar
- Fogg Davis, H. (2017). Why the “transgender” bathroom controversy should make us rethink sex-segregated public bathrooms. Politics, Groups, and Identities, 1–18. https://doi.org/10.1080/21565503.2017.1338971.
- G. G. v. Gloucester County School Board, 137 S. Ct. 1239 (2017).Google Scholar
- G.G. v. Gloucester County School Board, 132 F. Supp. 3d 736, 750 (E.D. Va. 2015)Google Scholar
- Gender Identity Act, H.B. 3810, 187th Gen. Court (Mass. 2011).Google Scholar
- Hasenbush, A., Flores, A. R., Kastanis, A., Sears, B., & Gates, G. J. (2014). The LGBT divide: A data portrait of LGBT people in the Midwestern, Mountain & Southern states. The Williams Institute. Available from https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-divide-Dec-2014.pdf.
- Herek, G. M. (1991). Myths about sexual orientation: A lawyer’s guide to social science research. Law & Sexuality, 1(133), 133–172.Google Scholar
- Herman, J. L. (2013). Gendered restrooms and minority stress: The public regulation of gender and its impact on transgender people’s lives. Journal of Public Management and Social Policy, 65–80.Google Scholar
- Holden, D. (2018, February 12). Retrieved March 16, 2018, from https://www.buzzfeed.com/dominicholden/edu-dept-trans-student-bathrooms?utm_term=.mvmwQx3mb#.bwlqp5QlV.
- House Bill 2: House Floor Debate on H.B. 2, 2015–2016 Gen. Assemb., 2016 Extra Sess. 2 43 (2016) (testimony of Rodney W. Moore).Google Scholar
- House Bill 2: Senate Floor Session on H.B. 2, 2015–2016 Gen. Assemb., 2016 Extra Sess. 2 14–-16 (2016) (testimony of E. S. “Buck” Newton).Google Scholar
- Human Rights Bylaw, Amherst, Mass., Gen. Bylaws Art. 1 (2009).Google Scholar
- Human Rights Campaign. (2016). Cities and counties with non-discrimination ordinances that include gender identity. Retrieved May 24, 2017, from http://www.hrc.org/resources/cities-and-counties-with-non-discrimination-ordinances-that-include-gender.
- Jackson, C. (2017, June 6). OCR instructions to the field re complaints involving transgender students [memorandum]. Washington, DC: Office for Civil Rights, Department of Education Retrieved July 11, 2017, from https://assets.documentcloud.org/documents/3866816/OCR-Instructions-to-the-Field-Re-Transgender.pdf
- Kelly, D. (2016, March 28). Anchorage LGBT rights law opponents seek amendments through initiative. Alaska Dispatch News. Retrieved May 2, 2017, from https://www.adn.com/alaska-news/article/opponents-anchorage-equal-rights-law-seek-amendments/2016/03/29/.
- Kralik, J. (2017, April 12). “Bathroom bill” legislative tracking. Retrieved May 2, 2017, from http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx.
- Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015).Google Scholar
- MacGillis, A. (2017, August 22). Is anybody home at HUD? New York Magazine. Available from http://nymag.com/daily/intelligencer/2017/08/ben-carson-hud-secretary.html.
- Mass. Gen. Laws ch. 151B § 4 (1989).Google Scholar
- Mass. Gen. Laws. ch. 66, §10 (2016).Google Scholar
- Minn. Stat. § 363A.11 (1993).Google Scholar
- Movement Advancement Project. (2017). Non-discrimination laws. Retrieved May 24, 2017, from http://www.lgbtmap.org/equality-maps/non_discrimination_laws.
- Nebraska v. U.S., No. 4:16-CV-03117, first amended complaint for declaratory and injunctive relief (U.S.D. Neb. Oct. 21, 2016).Google Scholar
- Nebraska v. U.S., No. 4:16-cv-03117-JMG-CRZ (U.S.D. Neb. Mar. 16, 2017).Google Scholar
- Nebraska v. U.S., No. 4:16CV3117 (U.S.D. Neb. Nov. 23, 2016).Google Scholar
- Occupational Safety and Health Administration. (2015). Best practices: A guide to restroom access for transgender workers. Retrieved May 25, 2017, from https://www.osha.gov/Publications/OSHA3795.pdf.
- Philipps, D. (2016, March 23). Retrieved May 25, 2017, from https://www.nytimes.com/2016/03/24/us/north-carolina-to-limit-bathroom-use-by-birth-gender.html.
- Radway, D. B., Town of Amherst, Mass. Director of Human Resources & Human Rights. (2015 April 23). [E-mail correspondence]. On file with the author.Google Scholar
- Simmons, L. N., Chief of Staff, City of Northampton, Mass. Office of the Mayor. (2015, April 23–May 12). [E-mail correspondence]. On file with the author.Google Scholar
- Texas v. U.S., 201 F. Supp. 3d 810 (N.D. Tex. Aug. 21, 2016).Google Scholar
- Texas v. U.S., No. 16-11534, defendants-aAppellants’ nNotice of wWithdrawal of mMotion for pPartial sStay pPending aAppeal and jJoint mMotion to cCancel oOral aArgument (2017).Google Scholar
- Transgender Anti-Discrimination Act, Mass. Gen. Laws ch. 272 §§ 92A, 98 (2016).Google Scholar
- Truman, J. L., & Langton, L. (2014). Criminal victimization, 2013. Retrieved from Bureau of Justice Statistics website May 2, 2017, http://www.bjs.gov/content/pub/pdf/cv13.pdf.
- U.S. Department of Justice & U.S. Department of Education. (2016). . Retrieved May 2, 2017, from http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.
- U.S. Department of Justice & U.S. Department of Education. (2017). . Retrieved May 2, 2017, from https://www.justice.gov/crt/page/file/942021/download.
- Worcester, Mass., Rev. Ordinances part 2, art. 10 §18(c)(1) (2014).Google Scholar
- Worcester, Mass., Rev. Ordinances Part 2, art. 10 §9(c) (2014).Google Scholar
- Young, C. A. (2016, October 11). Question to repeal transgender accommodations law qualifies for 2018 ballot. Retrieved May 2, 2017, from http://www.wbur.org/news/2016/10/11/ballot-question-transgender-accommodations-law.