Transgender Bathroom Battle Heating Up State by State

Transgender Bathroom Battle Heating Up State by State
(Illustration by The Epoch Times, Shutterstock)
December 03, 2023
Updated:
December 06, 2023

Octogenarian Julie Jaman was in the shower at a YMCA-managed pool in Port Townsend, Washington, when she suddenly heard a man’s voice.

“There stands a man in a woman’s bathing suit, looking at, watching, and touching little girls who were taking down their bathing suits,” she told The Epoch Times.

She was shocked. At the time of the July 2022 incident, she had been using the pool for 34 years and had never seen a man in the women’s changing area.

The man is a YMCA child care worker who identifies as a woman. He was supervising the girls in the changing area as part of his job, as previously reported.

After Ms. Jaman asked an employee to make sure he left the locker room, she was banned from the facility. Permanently.

Many states don’t have laws addressing whether men who identify as women, and vice versa, can or can’t use women’s restrooms and changing rooms.

That means federal law guides what is and isn’t legal in those locales.

A hand-washing sign hangs in a girls bathroom at a school in Stamford, Conn., on Aug. 26, 2020. (Photo by John Moore/Getty Images)
A hand-washing sign hangs in a girls bathroom at a school in Stamford, Conn., on Aug. 26, 2020. (Photo by John Moore/Getty Images)
Under the Biden administration, the Department of Education has interpreted federal law to allow people who identify as transgender to use restrooms and locker rooms that don’t align with their biological sex, if they choose.

Several states have affirmed that ruling, creating legislation allowing people who identify as transgender to use the restroom that aligns with their declared gender, rather than requiring them to use spaces set aside for their biological sex, according to a review of state laws by The Epoch Times.

More than a dozen states prohibit people from using restrooms and locker rooms that don’t correspond with their biological sex, no matter how they identify.

Ms. Jaman said she was horrified to peek out into the changing area to see a man in a one-piece ladies’ swimsuit interacting with little girls.

Her first reaction, she said, was to ask, “Do you have a penis?”

She said the man replied, “That’s none of your business.”

Then, a YMCA staff member who was already in the locker room intervened.

When Ms. Jaman asked the pool staffer to remove the man, she said the worker retorted: “That’s discrimination! And you’re out of here. For life!”

Julie Jaman. (Courtesy Julie Jaman)
Julie Jaman. (Courtesy Julie Jaman)

The staff member, Ms. Jaman said, announced that she would call the police, and then hugged the man.

Stunned, Ms. Jaman left and immediately reported the incident to the Port Townsend Police Department. But it didn’t file a report at the time, she said.

The police department later spoke to YMCA staff members and filed a report, reviewed by The Epoch Times, that listed Ms. Jaman as a “suspect.”

The report said Ms. Jaman was “screaming,” “calling names,” and “refusing to leave.” The report also said that the man wasn’t “assisting” the little girls, but was “watching” them.

“I don’t talk like that,” Ms. Jaman said, disputing the YMCA staff account recorded in the report. “I know how to speak English. And that is not the way I speak to people.”

Under Washington state law, all businesses that employ more than eight people must let transgender-identifying individuals enter opposite-sex restrooms.

The law, which went into effect in December 2015, also states: “In a public accommodation situation, the rules apply to all places of public accommodation, including (but not limited to) schools, gyms, public facilities, stores, restaurants, and swimming pools, and the gender segregated facilities within those places of public accommodation.”

In explaining the new state laws, the Washington State Human Rights Commission issued a Frequently Asked Questions document.

One question asks: “Can men now go into women’s bathrooms or locker rooms?”

The answer from the commission states: “No. Only females can go into women’s bathrooms or locker rooms in a gender segregated situation. This includes transgender females who identify as female,” referring to men who identify as female.

The answer goes on to state: “The rules do not protect persons who go into a restroom or locker room under false pretenses. For example, if a man declares himself to be transgender for the sole purpose of entering a women’s restroom or locker room, then the rule would not protect him.”

Transgender rights activists face off against protesters rallying against Christynne Wood, who identifies as a transgender woman and was criticized for using the female locker room at the YMCA in Santee, a suburban city in San Diego County, Calif., on Jan. 21, 2023. (Photo by Sandy Huffaker/AFP via Getty Images)
Transgender rights activists face off against protesters rallying against Christynne Wood, who identifies as a transgender woman and was criticized for using the female locker room at the YMCA in Santee, a suburban city in San Diego County, Calif., on Jan. 21, 2023. (Photo by Sandy Huffaker/AFP via Getty Images)

Who’s Allowed in Restrooms?

State law on opposite-sex restroom use is still in its infancy, with many states not yet taking a side.

Currently, the most important factor affecting whether men can enter women’s spaces is federal law, according to Sarah Perry, a senior legal fellow for The Heritage Foundation.

Federal rules that ban discrimination on the basis of sex have been repurposed to ban discrimination based on someone’s gender identity, Ms. Perry told The Epoch Times.

Title IX, a provision of the Educational Amendments of 1972, was crafted to bring equality between men and women in most facets of education.

However, the interpretation of the legislation by the U.S. Department of Health and Human Services under the Biden administration is that the Title IX provides against discrimination related to “sexual orientation and gender identity.”

“The Biden administration has interpreted civil rights law to include ‘sex’ as ‘gender identity,’ which is the most expansive definition we’ve ever seen,” Ms. Perry said.

The Biden administration’s choice means that the default legal position is that anyone who announces transgender status can use opposite-sex bathrooms in schools, she said.

Children move about in a hallway at Carter Traditional Elementary School in Louisville, Ky., on Jan. 24, 2022. (Photo by Jon Cherry/Getty Images)
Children move about in a hallway at Carter Traditional Elementary School in Louisville, Ky., on Jan. 24, 2022. (Photo by Jon Cherry/Getty Images)

These Title IX anti-discrimination provisions don’t specifically apply to other facilities, and state laws can block this federal rule interpretation, Ms. Perry said.

“If that particular state doesn’t have a protective law in place, they will be bound by the Biden administration’s interpretation of federal civil rights law, which is why we’re seeing so many of these challenges now come up in court,” she said.

In the long run, legal battles will decide whether the current presidential administration can use civil rights laws to give men a right to enter women’s bathrooms, Ms. Perry said.

Restroom Use Based on Gender Identity

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More than a dozen states have amended their laws to include “gender identity” as a protected class subject to anti-discrimination laws. Usually, these laws include civil rights protections in the areas of employment, housing, and public accommodations, which include restrooms.

These states include Delaware, California, Colorado, Hawaii, Massachusetts, Michigan, Maine, Minnesota, New Jersey, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, and Vermont.

Some state laws also specifically protect a person’s “right” to use a restroom or changing room that aligns with his or her chosen “gender identity.”

States with specific laws, executive orders, or court decisions that allow individuals to use opposite-sex restrooms include California, Colorado, Massachusetts, Connecticut, Maryland, Minnesota, Illinois, Washington, and Delaware.

A sign indicates that men should use the men’s restroom and women should use the women’s restroom at a business in Chattanooga, Tenn., on Jan. 13, 2023. (Jackson Elliott/The Epoch Times)
A sign indicates that men should use the men’s restroom and women should use the women’s restroom at a business in Chattanooga, Tenn., on Jan. 13, 2023. (Jackson Elliott/The Epoch Times)
The California law, passed in 2013, allows a school pupil to join “athletic teams and competitions, and use facilities consistent with his or her gender identity.”
New Jersey guidance for school districts states, “School districts shall allow a transgender student to use a restroom or locker room based on the student’s gender identity.”
In Connecticut, an executive order from Gov. Dannel Malloy, a Democrat, permits opposite-sex restroom use in public schools and colleges.

“A school’s failure to accommodate a student’s asserted gender identity or expression is subject to enforcement action by the Commission on Human Rights and Opportunities,” the 2017 executive order states, in part.

In Maryland, Judge George L. Russell III ruled in March 2018 that, under Title IX, transgender-identifying individuals have the right to use opposite-sex school facilities.

The Hawaii Department of Education issued guidelines to schools in 2016 that state, “Students have access to bathroom and locker room facilities that correspond to their gender identity.”

Louisiana Gov. John Bel Edwards issued an executive order in 2016 classifying “gender identity” as a protected class for state employees and employees of state contractors. “We respect our fellow citizens for their beliefs, but we do not discriminate based on our disagreements,” the governor, a Democrat, stated at the time.
Minnesota has updated its state statutes to make “gender identity” a protected civil right, which includes access to public accommodations such as bathrooms.

The state joined a 2019 lawsuit against a school district for requiring transgender-identifying students to change in an “enhanced privacy” locker room that it built for transgender students. Minnesota State Attorney General Keith Ellison contends that’s still discrimination.

“Transgender people ... are facing challenge after challenge in being treated equally, including in school,” he said at the time.
In 2016, North Carolina was the first state to pass a law banning opposite-sex restroom use, but it was repealed the following year after the state faced boycotts by activists angry about the legislation. The National Basketball Association moved its All-Star Game in retaliation to the legislation, and music stars canceled tour dates.
“This HB2 repeal immediately removes mean-spirited restrictions on public facilities that mandate North Carolinians use the public facility matching the gender on their birth certificate,” Democrat Gov. Roy Cooper stated in March 2017.

States Upholding Single-Sex Restrooms

Other states require people to use only those restrooms and changing areas that align with their biological sex, rather than their declared gender.

States protecting at least some single-sex spaces with laws, rules, or court decisions include Alabama, Arkansas, Florida, Idaho, Iowa, Kentucky, North Dakota, Nebraska, Oklahoma, Kansas, Mississippi, Missouri, Tennessee, and Texas.

However, their laws vary in the kinds of spaces protected.

Florida law says that a man who enters a women’s restroom or a woman who enters a men’s restroom can be charged with trespassing.

The 2023 Florida Statute states, “The Legislature finds that females and males should be provided restrooms and changing facilities for their exclusive use, respective to their sex, in order to maintain public safety, decency, decorum, and privacy.”

The law defines “sex” as “the classification of a person as either female or male based on the organization of the body of such person for a specific reproductive role, as indicated by the person’s sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth.”

Activists and members of the transgender community gather outside an LGBT bar to protest a Trump administration policy that rescinds an Obama-era order allowing transgender students to use school bathrooms matching their gender identities, at the Stonewall Inn in New York City on Feb. 23, 2017. (Photo by Spencer Platt/Getty Images)
Activists and members of the transgender community gather outside an LGBT bar to protest a Trump administration policy that rescinds an Obama-era order allowing transgender students to use school bathrooms matching their gender identities, at the Stonewall Inn in New York City on Feb. 23, 2017. (Photo by Spencer Platt/Getty Images)

Kansas, Montana, Nebraska, and Tennessee also have laws or executive orders that define “sex” as biological sex at birth.

Lawsuits, especially regarding transgender policies in public schools, have been driving policy in a lot of states.

A mother in Oklahoma filed a lawsuit against her local school district after her 15-year-old daughter was allegedly physically assaulted in the women’s restroom by a 17-year-old male who identifies as a transgender female.
The incident occurred at Edmond Memorial High School on Oct. 26, 2022, and the lawsuit alleges that the school district was aware that the transgender student was using the girls’ restroom in violation of state law.
In Missouri, several lawsuits are underway, including one in which the state attorney general is suing a school district for allegedly discussing transgender bathroom policies in secret. Attorney General Andrew Bailey is suing the Wentzville School District Board of Education over an alleged breach of the Missouri Open Meetings law, in which school boards can only hold meetings that are closed to the public for very specific purposes.

“Missourians do not co-parent with the government,” Mr. Bailey stated in the lawsuit.

In another case, the American Civil Liberties Union (ACLU) filed a lawsuit on July 31 against Missouri’s Platte County School District, alleging that it discriminated against a 16-year-old male student who identifies as a female.

The ACLU says the school district was wrong to reprimand and suspend the student for using female restrooms, against school policy. The ACLU says the school’s action constituted sex discrimination and disability discrimination, and violated the student’s rights under the Missouri Human Rights Act and the Missouri Constitution.

Alabama, Arkansas, Idaho, Kentucky, and Iowa laws protect single-sex spaces in schools through 12th grade.

Idaho’s law, enacted in July, states, in part, “Requiring students to share restrooms and changing facilities with members of the opposite biological sex generates potential embarrassment, shame, and psychological injury to students, as well as increasing the likelihood of sexual assault, molestation, rape, voyeurism, and exhibitionism.”
In Kentucky, Democrat Gov. Andy Beshear vetoed a broader bill that also banned minors from accessing transgender hormones and surgeries. The legislature overrode his veto, and the law went into effect this year.
The Kansas legislature also overrode a veto by Kansas Gov. Laura Kelly, a Democrat, to establish a women’s bill of rights, set the definition of biological sex, and ban males from female sports.
An executive order titled “Establishing a Women’s Bill of Rights” was issued by Nebraska Gov. Jim Pillen, a Republican, on Aug. 30.

“There are legitimate reasons to distinguish between the sexes with respect to athletics, prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms, and other areas where biology, safety, and/or privacy are implicated,” Mr. Pillen’s order states.

Mississippi has a law that restricts the state government from acting against people who establish “sex-specific standards” for locker rooms, bathrooms, and other facilities.
Utah has a similar law in its Antidiscrimination Act, amended in 2023, with the caveat that employers “afford reasonable accommodations based on gender identity” with regard to restrooms, shower facilities, and dressing facilities.
The Fourth Circuit Court of Appeals in Virginia ruled against the Gloucester County school board in 2020, stating that Title IX allows for transgender-identifying students to use opposite-sex restrooms.

“The Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972 can protect transgender students from school bathroom policies that prohibit them from affirming their gender,” the court ruling states.

A more recent education policy affirmed in 2023 by Virginia Gov. Glenn Youngkin, a Republican, states that “students shall use bathrooms that correspond to his or her sex, except to the extent that federal law otherwise requires.”
The policy goes on to state, “Overnight travel accommodations, locker rooms, and other intimate spaces used for school-related activities and events shall be based on sex.”

Danger to Women

Policies that allow men to get undressed in spaces set aside for women can be dangerous for women, Doreen Denny, senior adviser for Concerned Women for America, told The Epoch Times.

For women, entering a secluded space with a potentially predatory man can be a matter of life and death, she said.

“Women have separate spaces for bathrooms, locker rooms, female prisons, and other places because it is a matter of safety and security,” Ms. Denny said. “We’re the weaker sex.”

The average man is 5 inches taller and nearly 29 pounds heavier than the average woman, according to the Centers for Disease Control and Prevention.
Another study published in a National Library of Medicine database found that men have significantly more upper body strength than women.

These physical differences make women vulnerable to physical violence from men, Ms. Denny said. That’s why women need their own spaces as a precaution against male violence, she said.

A woman carries food from the kitchen of "Strengthen Our Sisters," a shelter for women who have suffered domestic violence, in Paterson, N.J., on Feb. 25, 2021. (Photo by Kena Betancur/AFP via Getty Images)
A woman carries food from the kitchen of "Strengthen Our Sisters," a shelter for women who have suffered domestic violence, in Paterson, N.J., on Feb. 25, 2021. (Photo by Kena Betancur/AFP via Getty Images)

“We have always been instructed, even conditioned, from our very earliest age to understand that being with other women is a place that provides for a greater amount of safety for us,” Ms. Denny said.

Historically, the U.S. government has recognized through laws that women are more vulnerable to violence than men, she said.

But the idea that some men are women eliminates these protections.

“All the gains we’ve made are simply being erased on the basis of some individual who—for his own desires, or confusion, or identity, or whatever crisis—is now assuming a different identity that’s a woman,” Ms. Denny said.

Under the banner of transgenderism, men have entered sororities, rape crisis centers, and women’s prisons.

In some women’s prisons, men with transgender identities have raped female prisoners.

Allowing men who say they’re women into women’s spaces gives women yet another location where they must remain wary, Ms. Denny said.

“How many women need to be raped before we realize that maybe it’s not such a great idea?” she asked.

Alice Giordano contributed to this report.
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