Is It a Crime for a Transgendered Person to Use the “Wrong” Bathroom?

From North Carolina Criminal Law, a UNC School of Governemnt Blog, April 4, 2016

The General Assembly recently passed, and the Governor recently signed, HB 2 (S.L. 2016-3), popularly known as “the bathroom bill.” This post considers whether it is now a crime for a transgendered person to use the bathroom of the sex with which he or she identifies.

More than bathrooms. The bill is about more than bathrooms, as discussed in detail in this blog post by my colleague Trey Allen. But it does include provisions about bathrooms, and those provisions are the focus of this post.

No effect on private businesses’ bathrooms. The bill concerns only bathrooms operated by school boards and other state and local government entities. It doesn’t prevent private businesses from making multiple occupancy bathrooms available by gender identity.

Focus on multiple occupancy bathrooms. The focus of the bill is multiple occupancy bathrooms. Although some of the language isn’t perfectly clear — at least to me — it seems that government entities have greater discretion in determining access to single occupancy bathrooms.

Government entities must establish single-sex bathrooms, with sex determined by birth certificate. The pertinent language for school boards is in Section 1.1 of the bill: they “shall establish single-sex multiple occupancy bathroom and changing facilities.” Additional provisions in Section 1.2 of the bill clarify that “sex” means biological sex as stated on a person’s birth certificate. The language for other public agencies is in Section 1.3 of the bill: they “shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex,” again as stated on a person’s birth certificate.

The objective of the bill appears to be to establish a policy that, for multiple occupancy bathrooms run by government entities, a transgendered person whose birth certificate does not match his or her gender identity should use the bathroom designated for the sex listed on his or her birth certificate. The merits of this rule are beyond the scope of this post.

Is it a crime for a transgendered person to use the “wrong” bathroom? Almost a year ago, I posted about whether it is a crime for a man to use the ladies’ room. I suggested that a man using the ladies’ room might well be trespassing, or breaking and entering. At that time, I didn’t address bathroom usage by transgendered people. I’ll tackle that issue now.

In general, before HB 2 and for bathrooms not affected by the law, I doubt that a sign on a bathroom door showing a stick figure in a skirt would render criminal the use of such a bathroom by a transgendered female, whether or not she has undergone sex reassignment surgery. Even if the sign includes the word “women” or a synonym, I doubt that a transgendered female would be trespassing or breaking and entering by using the bathroom in question. Such a person identifies as a woman, typically dresses as a woman, and is recognized as a woman by many members of the public. As to her, the sign is ambiguous at best.

After HB 2, however, the situation may be different for the bathrooms covered by the bill. The bill is plainly intended to require that each person use the bathroom designated for the sex listed on his or her birth certificate, and the provisions of the bill arguably reduce the ambiguity associated with typical bathroom signage. Therefore, there is an argument that a transgendered person using the “wrong” bathroom would be doing so “without authorization,” which is the key to the first-degree trespass statute, G.S. 14-159.12, or even “wrongfully,” which is the key to misdemeanor breaking or entering, G.S. 14-54.

A possible counterargument would be that HB 2 mandates that various government entities limit the use of their multiple occupancy bathrooms by biological sex, but that HB 2 itself does not directly govern the use of bathrooms. In other words, the bill states that school boards “shall establish” bathrooms compliant with the bill, and that school boards and public agencies “shall require” that multiple occupancy bathrooms be used only by a single biological sex, but arguably leaves the actual establishing and requiring to the government entities mentioned in the bill. On this view, a transgendered person using the “wrong” bathroom would not be violating any criminal law unless and until the entity in control of the bathroom in question adopts a policy implementing HB 2.

I don’t know whether HB 2 was intended to criminalize the use of the “wrong” bathroom by transgendered people. It may be worth noting that HB 2 itself contains no criminal penalties.

Constitutional and other issues. HB 2 has been challenged in court. Opponents of the bill argue that it violates the Equal Protection Clause as well as federal statutory law. Whether the bathroom-related provisions of the bill will survive remains to be seen.

Investigative issues. Finally, I have been asked how a law enforcement officer might investigate an allegation that a transgendered person is using, or has used, the “wrong” bathroom. My impression is that most officers will want nothing to do with such an investigation, unless there is some suggestion of inappropriate activity in the bathroom. Attempting to determine the biological sex of a bathroom patron may be difficult and will certainly be intrusive. Most people don’t carry their birth certificates around, nor would an officer normally have any authority to require a person to present his or her birth certificate. And the idea of an officer seeking to inspect the physical characteristics of a bathroom patron rings all sorts of legal alarm bells. So even if use of the “wrong” bathroom is a crime in theory, it may be difficult to investigate and charge in practice.

Is It Illegal for a Man to Use the Ladies Room?

From North Carolina Criminal Law, a UNC School of Government Blog, by Jeff Welty, May 6, 2015

In Charlotte, there is a controversy over whether a transgendered person should use the bathroom assigned to his or her biological sex or to the sex with which he or she identifies. The Charlotte Observer has the story here. This post doesn’t address that issue directly, but instead concerns a related question that the story prompted me to ponder: Is it illegal for a man to use the ladies’ room?

There doesn’t seem to be much law directly addressing this topic, or the similar if not identical issue of whether it is illegal for a woman to use the men’s room. A few states have considered enacting specific crimes targeting restroom usage by the opposite sex, as noted by the Huffington Post here and here. But it doesn’t sound as though any of them have passed, leaving me to consider more generally-applicable crimes.

Here are the main possibilities:

Trespass.

There’s a strong argument that a man entering a ladies’ room is a person who has, without authorization, entered a building of another and so is guilty of First-Degree Trespass, NCGS 14-159.12. One might argue that a restroom is not a building but a room within a building. However, it may qualify as a building under NCGS 14-159.11, which defines the term as “any structure or part of a structure . . . enclosed so as to permit reasonable entry only through a door.” Supporting that interpretation is Com. v. White, 538 A.2d 887 (Pa. Super. Ct. 1988), where the court affirmed a conviction for criminal trespass after the male defendant entered the women’s restroom of an athletic club. The court ruled that the restroom was a “separately secured or occupied portion” of the building that was reserved for women’s use. Update: See also In re S.M.S., 196 N.C. App. 170 (2009) (affirming an adjudication of second-degree trespass after a boy entered a girls’ locker room, and stating that “[t]he sign marked ‘Girl’s Locker Room’ was reasonably likely to give respondent notice that he was not authorized to go into the girls’ locker room”).

Breaking or entering. There’s also a reasonable argument that a man entering a ladies’ room has wrongfully entered a building and so is guilty of misdemeanor breaking or entering under G.S. 14-54. Whether the bathroom is a building itself or is instead a part of a building may be irrelevant under State v. Perkins, 181 N.C. App. 209 (2007) (affirming a conviction of breaking or entering after a defendant entered the public reception area of a law firm, then entered “nonpublic space reserved for firm employees”; the entry into the nonpublic space rendered his entry into the building as a whole unlawful).

Disorderly conduct. In some states, incidents of this kind may be charged as disorderly conduct. See Com. v. Young, 535 A.2d 1141 (Pa. Super. Ct. 1987) (affirming a conviction for disorderly conduct after a male defendant entered a women’s restroom and opened a toilet stall being used by a female). But North Carolina’s disorderly conduct statute, G.S. 14-288.4, is limited to specific types of disruptive behavior, and I don’t see anything in the statute that would cover inappropriate bathroom usage.

Indecent exposure. Although indecent exposure might be applicable in some circumstances, most instances of a person of one sex using a restroom assigned to the other sex probably do not involve the showing of private parts required by the indecent exposure statute, G.S. 14-190.9.

Peeping. Although peeping might be applicable in some circumstances, most instances of a person of one sex using a restroom assigned to the other sex probably do not involve sufficient secrecy on the part of the person to implicate the peeping statute, G.S. 14-202.

Common sense. All of the analysis above should be considered alongside a bit of common sense. If a janitor of one sex cleans an empty restroom assigned to the opposite sex, or if a child of one sex accompanies a parent of another sex into a restroom assigned to the parent’s sex, neither the janitor nor the child should be hauled into court. If one bathroom at a gas station is out of order and patrons of both sexes take turns using the remaining bathroom, I can’t imagine a criminal charge resulting. But if a man waltzes into a ladies’ room, for no good reason, my guess is that a charge of trespass, or perhaps breaking or entering, could stick.