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.