Unless you’ve been living under a rock, you have likely been privy (pun intended) to discussions and debates about who should be allowed to use which restroom. This conversation has been bubbling beneath the surface of mainstream media attention for years, but it exploded into public conscience with the speedy passage of North Carolina’s House Bill 2, or HB2. Under a special legislative session in March, the North Carolina General Assembly introduced and passed a bill in one day that repealed current protections and prohibited future nondiscrimination laws or ordinances for LGBT people across the state. The bill requires that restrooms in government buildings and public schools be divided by biological sex—defined in HB2 as "[t]he physical condition of being male or female, which is stated on a person’s birth certificate"—rather than by gender identity.
On May 9, U.S. Attorney General Loretta Lynch gave a landmark speech in which she announced that the U.S. Department of Justice would be suing the state of North Carolina, the University of North Carolina, the state’s Department of Public Safety, and Gov. Pat McCrory for violations of civil rights laws because of HB2’s new bathroom requirements. By the end of the week, the U.S. Department of Education and the U.S. Department of Justice issued joint significant guidance that Title IX requires public schools that receive federal funding to treat students in accordance with their gender identity. This includes allowing students to use the restrooms that are consistent with their gender identity and not requiring transgender students to use single-stall or separate restrooms from other students.
The clearest impact that laws like HB2 have on transgender people is a legislative approval of the harassment and intimidation that transgender and gender-nonconforming people already face when trying to access public restrooms. For example, under HB2 and other new state restroom laws, most transgender women would routinely be required to use the men’s restroom. Additionally, gender-nonconforming cisgender people (such as masculine-presenting women) are likely to face increased state-approved harassment where laws mandate restroom use by biological sex.
A 2009 survey of 93 transgender and gender-nonconforming adults living in the nation’s capital were asked about their experiences using public restrooms. Overall, 70 percent of the respondents reported experiencing denial of access to facilities, verbal harassment, or physical assault at some point in their lives while trying to use public restrooms. These incidents ranged from being told they were in the wrong restroom to being verbally threatened, hit, or kicked and even sexually assaulted.
While everyone may occasionally find themselves in a situation where they have to “hold it” when they can’t find a restroom, restroom access can be a daily struggle for transgender people. A 2013 national school climate survey of nearly 8,000 LGBT youths between the ages of 13 and 21 found that 63 percent of transgender students avoided school bathrooms, and 52 percent of transgender students avoided school locker rooms because they felt unsafe or uncomfortable.
In the Washington, D.C., survey, 58 percent of respondents reported that at some point they avoided going out in public because of a lack of safe restroom facilities. Many respondents reported planning their days and travel routes to ensure access to gender-neutral restrooms, friends’ homes, or other safe restroom options. Because of the daily struggle of restroom access, 54 percent reported some sort of health-related impact, including dehydration, urinary-tract infections, kidney infections, and weakened bladders.
Social acceptance of transgender youths and adults ... will likely save lives."
In a school context, lack of regular access to restrooms can have a direct impact on academic participation and performance. In 2011, a transgender student filed a complaint against the Arcadia Unified School District in California, for refusing him access to restrooms in accordance with his gender identity. The school required that he use the nurse’s office restroom, which was a distance from his classrooms, causing him to miss a significant amount of class time. The Washington, D.C., survey found that, among respondents who had been denied access to restrooms in a school context, 10 percent reported it had a negative impact on their education, including causing excessive absences and poor performance. One respondent even reported dropping out of school.
Most importantly, the general stigma against the transgender community that is highlighted and exacerbated by laws such as HB2 can have a detrimental impact on the mental health of transgender youths and adults. While the American Psychological Association has confirmed that “gender nonconformity is not in itself a mental disorder,” the stigma and discrimination that transgender people, especially transgender youths, experience can lead to disparate mental-health outcomes. An analysis of data from a 2009 report of the National Transgender Discrimination Survey, or NTDS, which collected data from over 6,000 transgender and gender-nonconforming individuals across the country, found that 41 percent of participants reported attempting suicide at some point in their lives, compared to 1.6 percent of the overall U.S. population.
A recent analysis of NTDS data found that among those who had been denied access to restrooms in a postsecondary educational context, 61 percent reported attempting suicide. And in the month after HB2 was passed, the co-founder of Trans Lifeline, a crisis hotline for transgender people, reported that their call-volume nearly doubled, outpacing even the normal upswing of seasonal fluctuations. While these are correlations and not definitively causal, a recent study of prepubescent transgender youths ages 3 to 12, who had socially transitioned, found that those with supportive families reported depression levels similar to those of their cisgender siblings and other cisgender youths. All of these studies indicate that social acceptance of transgender youths and adults can lead to improved mental-health outcomes and will likely save lives.
Finally, there is the question of whether opening the bathroom doors to transgender youths and adults may inadvertently open them to sexual predators and voyeurs. While no empirical data have been analyzed to date on this question, there is currently no evidence of any increase in sexual assaults or other criminal behavior in restrooms in the 18 states and Washington, D.C., that have enacted gender-identity-inclusive public-accommodations nondiscrimination laws. Researchers at the Williams Institute at the UCLA School of Law, where I am based, have begun to analyze the effects of these laws on public safety more empirically. Anecdotally, all of the police departments with gender-identity nondiscrimination laws in public accommodations that have responded to our public records requests to date have reported that such laws have had no effect on public safety. This research, along with the research that has studied the impact of public-restroom use on transgender youths and adults, indicate that the only people likely to be seriously and concretely affected by school restroom policies are the transgender students who are in need of these protections.