New Bill Could Send Trans People to Jail for Using the Bathroom

A law being considered in Indiana makes entering a public restroom that does not match one’s biological sex a criminal offense.

A rally in support of the equal health and livelihood of trans people in Washington, D.C., on March 30, 2013. (Photo: Flickr)

Dec 24, 2015· 2 MIN READ
Samantha Cowan is an associate editor for culture.

The year 2015 has been a banner one for transgender representation, and that increased visibility has put trans civil rights in the spotlight. But while some are championing antidiscrimination laws and health benefits for transgender citizens, others are attempting to legislate public restrooms.

A bill introduced this week in Indiana’s legislature would make it a criminal offense to knowingly enter a public restroom that does not match one’s biological gender. The bill will go to the Indiana general assembly in January.

Authored by Republican state Sen. Jim Tomes, Senate Bill 35 defines gender as the “physical condition of being male or female, as determined by an individual’s chromosomes and identified at birth by the individual’s anatomy.”

Because chromosomes remain the same regardless of hormone therapy or sexual reassignment surgery, transgender men and women would be forced to use a restroom that does not match their gender identity—an act LGBT advocates say violates their civil rights.

The bill covers both restrooms at public facilities and in public schools throughout the state. An adult caught using a public facility that doesn’t align with his or her chromosomal makeup can be charged with a Class A misdemeanor. In Indiana, that offense comes with a penalty of up to one year in jail and a fine of up to $5,000.

While schools would be required to enforce the restroom policy, it would be up to administrators to dole out punishment for students who use a bathroom that matches their gender identity. The bill also mandates that schools have girls’ and boys’ facilities exclusively, as opposed to gender-neutral bathrooms—an option some schools have turned to as a way to support transgender students.

“In this world of 2015 that we live in, we’re dealing with extraordinary issues that, years ago, we could have never imagined,” Tomes told the Evansville Courier & Press. “We’re trying to establish some kind of guideline with these recent developments.”

Tomes cited instances in other states where transgender students used restrooms that matched their gender identity—something he hoped the Hoosier state could avoid.

Bathrooms have become something of a battleground for transgender rights. Students in states including Missouri, Virginia, and Illinois have demanded—to varying degrees of success—the right to use a restroom that matches their gender identity. Those who support regulations similar to Tomes’ have purported that a teenage boy or man could pose as a transgender woman to enter a women’s facility and prey on young girls. LGBT advocates note that such myths have been thoroughly debunked and that transgender teens and adults are more likely to face harassment while using public restrooms.

Freedom Indiana, an organization looking to increase protections for LGBT citizens, has said it will fight the bill.

“We know there will be attempts in the upcoming session to promote fear over reality, but we also know that a majority of Hoosiers want to see gay and transgender people protected under our civil rights law, and we won’t let anything distract us from that goal,” a Freedom Indiana press release read. “We hope lawmakers will stay similarly focused on making our state safe and welcoming for all people.”

LGBT citizens in Indiana are already vulnerable to harassment as the state’s civil rights code does not protect against discrimination based on sexual orientation or gender identity in housing, public accommodations, or schools, according to Human Rights Campaign.

“Maybe we shouldn’t focus on targeting a particular group of people in our state and treating them like second class citizens,” Freedom Indiana spokesperson Jennifer Wagner told WISH TV. “Perhaps we should do the right thing and update our civil rights code.”