Indiana Transgender Bathroom Penalties Bill Facing Intense Scrutiny

Newly introduced legislation in the Hoosier State on gender restrictions for public facilities is the latest to emerge in state capitals around the nation.

Transgender individuals who use public restroom facilities in Indiana that are designated for the sex that is the opposite of their gender at birth could face fines, and potentially jail time, under a bill recently proposed in the Hoosier State’s General Assembly.

State Sen. Jim Tomes, a Republican from Wadesville, is sponsoring the legislation, which would apply to public restrooms, locker rooms and shower rooms. Violations of the guidelines in the bill would be punishable as a Class A misdemeanor, which can carry penalties of up to a $5,000 fine, or one year in jail. The legislation also calls for similar restrictions in public schools, including charter schools, but students would not be subject to the criminal penalties.

The measure Tomes has proposed comes as lawmakers, and others, are bracing for a tense debate over a different piece of legislation, known as Senate Bill 100. That bill would amend Indiana’s civil rights laws to prohibit discrimination against people based on their sexual orientation, gender identity, or whether they’ve served in the military. The civil rights protections afforded under the laws cover employment, housing, education, access to credit, and public accommodations, which are establishments that provide goods, services or facilities to the general public.

Language in the proposed civil rights legislation specifically states that it is not discriminatory to "establish, use, and enforce rules and policies related to the use of restrooms, shower facilities, dressing facilities, and other similar facilities."

Senate Bill 100 is already facing scrutiny from critics on a number of fronts.

For instance, the American Civil Liberties Union of Indiana says that it contains overly broad religious exemptions, as well as other flaws. Meanwhile, in a video posted online on Monday, Dr. Ron Johnson, of the Indiana Pastors Alliance, characterized the legislation as a “horrible idea.” Referring to how business owners who are Christian and who employ more than five people would be affected by the bill, Johnson said: "You're going to be forced by our state government to violate your conscience."

All of this comes on the heels of a high profile controversy that flared up in Indiana last spring, after Gov. Mike Pence, a first-term Republican, signed into law Indiana's Religious Freedom Restoration Act, which stoked fears that business owners, based on their religious beliefs, would be able to discriminate against gays and lesbians. The law drew national attention and widespread rebukes, including from celebrities and prominent corporate executives.

Pence later signed a “fix,” which changed the law. It was also criticized, with some saying it did not go far enough, and others knocking the governor and lawmakers for buckling under pressure.

Tomes did not respond to an interview request on Monday. But in comments reported by The Associated Press in late December, he defended the legislation he has introduced related to restroom restrictions, which is known as Senate Bill 35.

“We've walked through a doorway we'll never go back through. And we're going to have to address some concerns that are now facing us,” he said, according to the AP. “If you were born a man, then you are obliged to use the males’ restroom.”

Freedom Indiana, a group that works to combat discrimination against lesbian, gay, bisexual, and transgender people, is opposed to the legislation. Spokesperson Jennifer Wagner said that, for now, the organization is hopeful that Senate Bill 35 will not get a hearing during the upcoming session.

“If this bill progresses, we will absolutely fight it,” Wagner said. “Having a bill on the table that would require people to give a blood sample or, potentially, have the potty police at the bathroom door, is not something that we would see as moving us in the right direction.”

Tomes’ bill is the latest of its kind to emerge in state legislatures around the U.S.

Eight states considered measures related to gender restrictions in public restroom facilities during 2015, according to Joellen Kralik, a research analyst at the National Conference of State Legislatures.

These states included: Colorado, Florida, Kentucky, Minnesota, Missouri, Nevada, Texas and Wisconsin. Legislation in Florida, Kentucky, Minnesota and Nevada explicitly mentioned school facilities. None of the bills were enacted.

Another comparable bill failed to pass in Arizona during the state’s 2013 legislative session.

Kralik noted in an email that, as far as she could tell, only in Florida and Texas was legislation proposed that would have made it a criminal offense to go into a restroom facility that does not match a person’s gender at birth.

“We’re seeing states introduce these bills more and more,” said Nathan Smith, director of public policy for The Gay, Lesbian and Straight Education Network, a nonprofit group that aims to prevent LGBT students from being bullied and harassed while at school.

“It’s important to affirm for trans students that their identities are valued and respected in the school community,” Smith added.

He pointed to another reason bills like the one Tomes has proposed can be problematic.

“We’ve heard of trans students who, literally, don’t go to the bathroom for the seven, or seven-and-a-half hour school day,” Smith said. He noted that in addition to discomfort, not using the restroom for that long a time can create health problems.

Smith explained that these students often avoided the restroom because they did not feel safe using bathroom facilities that do not correspond to their gender identity, but also feel that they’re not allowed to use the one that do. “They just don’t go,” he said.

Under a federal law known as Title IX, discrimination based on a person’s sex is banned in any education program or activity that receives federal funding.

In November, the U.S. Department of Education found that an Illinois school district near Chicago—Township High School District 211—had violated Title IX in a case involving a transgender student. The Education Department said the district had not provided adequate access to female locker room facilities to the student, who was born a boy but identified as a girl, and transitioned to living full-time as a young woman during her middle school years.

A settlement resolving the case was announced between the school district and the Department of Education in early December. The terms of the settlement allow the student to access the girls' locker rooms, and to change in private changing stations.

Bill Lucia is a Reporter for Government Executive’s Route Fifty.