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date: 28 February 2021

Transgender-Specific Policy: Gender Identity Inclusion in Public Accommodationsfree

  • Andrew R. FloresAndrew R. FloresDepartment of Public Policy and Political Science, Mills College
  •  and Justin O'NeillJustin O'NeillDepartment of Jurisprudence and Social Policy, University of California Berkeley

Summary

In the early 21st century the public debates about the inclusion of gender identity in public accommodations municipal ordinances and statewide and national laws represent another step in the ongoing struggle of the social movement seeking to advance the rights and liberties of lesbians, gay men, bisexual, transgender, and other queer (LGBTQ) people. Situating these current debates in the larger context of the LGBTQ movement connects this emergent issue to that broader struggle. The LGBTQ social movement and its counter-movement, often referred to as the Religious Right, have had numerous battles over social policy since the late 20th century. Importantly, movements and their counter-movements identify winning strategies and, at times, tactically innovate so as to effect a shift in current tactics in light of a failing strategy. Tactical innovation includes shifting policy debates, which has been a primary tactic of the counter-movement to LGBTQ rights. Transgender rights broadly and public accommodations policies specifically represent a tactical innovation in the ongoing development of LGBTQ rights in the United States.

How has gender identity inclusion in public accommodations been addressed in politics, policy, and law? There are numerous dimensions of gender identity public accommodations policies as understood in social movements, American law, public policy and administration, public opinion, and sociology and social psychology. Public accommodations are a constant source of public contention. The legal landscape in constitutional, federal, state, and municipal approaches to these policies remains uncertain, and there are competing interpretations of law in whether gender identity protections are covered in existing federal statutes. The rhetoric of the policy debates in both state legislatures and initiative and referendum campaigns primarily focuses on the potential harms to women and girls brought about by men taking advantage of such laws to assault them in sex-segregated public facilities. An account of public opinion about these policies also shows that American adults are far more divided about transgender people using restrooms consistent with their current gender identity than other aspects of transgender rights such as employment nondiscrimination policies. Experimental interventions, such as in-depth conversations encouraging people to consider the day in the life of a transgender person, reduce transphobia and make people more resistant to arguments opposed to the inclusion of gender identity in public accommodations laws. Finally, some have questioned whether sex classifications are needed in public policy and how current non-discrimination laws achieve their stated goals without such a system. Further development and inquiry absolutely are needed in all these areas.

Situating Gender Identity Inclusion in Public Accommodations Ordinances

The current public debates about the inclusion of gender identity in public accommodations municipal ordinances and statewide and national laws represent another step in the ongoing struggle of the social movement seeking to advance the rights and liberties of lesbians, gay men, bisexual, transgender, and other queer (LGBTQ) people. Situating these debates in the larger context of the LGBTQ movement connects this emergent issue to that broader struggle. The LGBTQ social movement and its political opponents (primarily in the Religious Right) have had numerous battles over social policy since the late 20th century (Fetner, 2008). Importantly, movements and their opposition identify winning strategies and, at times, tactically innovate so as to effect a shift in current tactics in light of a failing strategy (McAdam, 1983). Tactical innovation includes attempting to shift policy debates, which has been a primary tactic of the opposition to LGBTQ rights (Stone, 2012). Transgender rights broadly and public accommodations policies specifically represent a tactical innovation in the ongoing development of LGBTQ rights in the United States.

In this article, the numerous dimensions of gender identity public accommodations policies are described as understood in social movements, American law, public policy and administration, public opinion, and sociology and social psychology. The article also discusses whether sex classifications are needed in public policy and how current non-discrimination laws achieve their stated goals without such a system.

Spaces of public accommodation have constantly been a source of public contention. Throughout the late 19th and to the mid-20th centuries, public accommodations were at the center of the struggle for racial justice within the United States (Klarman, 2006; Sandoval-Strausz, 2005). Indeed, the conservative rhetoric surrounding gender identity-inclusive public accommodations laws repeats much of the rhetoric of the World War II era justifying racial segregation in public accommodations (Frank, 2015). The historic Civil Rights Act of 1964 outlawed discrimination in public accommodations and employment, among other areas of social and political life, on the basis of race, color, religion, sex, or national origin. The passage of the Civil Rights Act would have been unlikely were it not for the broader struggle for racial equality brought before the American public by virtue of the Civil Rights Movement and the forces seeking to preserve white supremacy (Klarman, 2006). The emergence of the Civil Rights Movement involved a process by which social, political, and economic exclusion of Black Americans resulted in the creation and support of indigenous institutions capable of acting on political opportunities (McAdam, 1982). Central to this struggle were the historic sit-ins in businesses serving the (white) public. Places of public accommodation are therefore a major and constant site of struggle for marginalized groups seeking state protection from discrimination.

Policies about restroom access in particular were used to further exclude historically marginalized populations (Griffin, 2009; Levi & Redman, 2010). Women were excluded from spaces of higher learning until restrooms designated for women were put into facilities (Griffin, 2009). Griffin (2009) also highlighted the use of public restrooms to further white supremacy in the Jim Crow South, as such facilities reinforced spaces of disapproval and race-mixing at the same time by providing restroom facilities designated for white persons in easily accessible locations while obligating black people to venture to far more distant sites. The maintenance of sex-segregated restrooms was also a central argument against passing the Equal Rights Amendment (Levi & Redman, 2010). Restrooms remained central to the exclusion of historically marginalized groups, and they were used to further justify the exclusion of broader protections such as those that would have been provided by the Equal Rights Amendment.

LGBTQ people have encountered policy and legal challenges that have begun to chip away at access to public goods and accommodations. A past strategy of the Religious Right, when a majority of the public held anti-LGBTQ views, was to use the policy and legal apparatus to pass traditionalist policies. Since the American public has dramatically changed their views about LGBTQ people and rights (Garretson, 2018), the Religious Right recently has begun to take up a rights-based strategy of their own, which includes preserving a right to refuse services based upon religious objections (Lewis, 2017). This rights-based strategy suggests that the Religious Right is embracing strategies and tactics similar to those of minority and other marginalized groups in the United States. After the legalization of marriage for same-sex couples, many state legislatures passed various religious refusals bills to allow individuals to deny services related to gay weddings, and Masterpiece Cakeshop v. Colorado Civil Rights Commission 584 U.S. ___ (2018) overruled the actions of Colorado’s Civil Rights Commission, which had penalized a baker who denied services to a gay couple. There are presently 21 states that have a law or constitutional amendment allowing for persons, churches, non-profit organizations, or, at times, corporations to refuse services based upon religious beliefs (Movement Advancement Project, 2018a). In the domain of public accommodations, legislative efforts have been made to expand the scope of accommodations laws to include gender identity while other efforts have attempted to proscribe or repeal such policies.

Public Accommodations Policies and U.S. Law

Federal Law

Public accommodation laws in the United States prevent private business owners from refusing service to customers on the basis of those customers’ protected statuses. Title II of the Civil Rights Act of 1964 enumerates “race, color, religion, or national origin” as the specific bases on which businesses cannot discriminate or segregate. Unlike the perhaps more well-known Title VII, which deals with discrimination in employment specifically, Title II does not contain protections on the basis of sex. Thus, while many federal courts have begun to find that the sex discrimination protections of Title VII also cover transgender individuals, there is no similar federal legal hook for public accommodations protections. Thus, the issue of restroom access for transgender people under federal law emerges primarily in two specific venues. First, it has occasionally been raised as an issue in employment discrimination cases. In one 2007 example, Etsitty v. Utah Transit, the 10th Circuit Court of Appeals held that a bus company did not violate Title VII when it refused to accommodate a transgender bus driver’s bathroom needs and chose to fire her instead. However, the Equal Employment Opportunity Commission came to the opposite conclusion in 2015, holding that refusing to let a transgender employee use the restroom that aligns with her gender identity was an adverse employment action under Title VII. At the time of writing (2020) at least one federal district court has agreed (Roberts v. Clark County School District, 2016).

The second primary site of fights under federal law over transgender protections is educational institutions. Title IX (a 1972 amendment to the Civil Rights Act) prohibits discrimination on the basis of sex in schools. In the early 21st century, high-profile bathroom access cases have arisen under Title IX, including the only case involving transgender accommodations to have made it to the Supreme Court. In 2015, Gavin Grimm, a transgender high school student in Virginia, sued his school district for the right to use the restrooms consistent with his gender identity. The Obama Administration intervened in the case and issued policy guidance interpreting Title IX as requiring school districts to do just that. The Fourth Circuit, relying on that policy guidance (under a judicial canon known as the Chevron deference, in which courts largely defer to interpretations of federal law issued by executive agencies), ruled in favor of the student (G.G. v. Gloucester County School Board, 2016), and the Supreme Court agreed to hear the school district’s appeal, setting a date for oral argument in the case. However, before that date came, the Trump Administration had taken office and rescinded the Obama Administration’s initial policy guidance. The Supreme Court cancelled the arguments and sent the case back to the lower courts to rule on the issue without the benefit of Chevron deference (Gloucester County School Board v. G.G., 2017). Upon reconsideration, the district court again ruled in favor of Grimm, declaring that the school district violated Grimm’s rights under the Constitution and Title VII and ordering the district to update its records to reflect Grimm’s gender identity (Grimm v. Gloucester County School Board, 2019). The school district appealed, and the case is still pending in the Fourth Circuit as of this writing.

In the meantime, lower federal courts have also ruled that Title IX requires schools and school districts to accommodate transgender students by allowing them to use the restroom that corresponds with their gender identity. In Whitaker v. Kenosha Unified School District (2017), the Seventh Circuit ruled that transgender students can make claims under Title IX (and that the school district’s policies likely violated the Equal Protection Clause of the Fourteenth Amendment as well). The school district later settled the case. Trial-level federal courts in Florida (Adams ex rel. Kasper v. School Board of St. John’s County, 2018) and Maryland (M.A.B. v. Board of Education of Talbot County, 2018) have similarly held that transgender students can bring claims under Title IX in cases involving bathrooms and locker rooms, respectively.

The arguments in the Whitaker case are typical of the arguments made by both sides in these types of cases. The school district, in arguing against being legally required to allow transgender students to use restrooms in accordance with their identities, made three primary arguments. First, that the plain meaning of the term “sex” in Title IX (and other civil rights statutes) is such that it includes only “biological” sex. Second, because Congress had considered and rejected adding language to the statute that would have explicitly banned discrimination based on gender identity, it would violate Congressional intent to understand “sex” as including protections for transgender students. And finally, the district argued that the privacy rights of other students require that restrooms and locker rooms be kept segregated on the basis of biological sex.

Whitaker responded (with the district and appellate courts largely agreeing with his positions) that under the Supreme Court precedent Price Waterhouse v. Hopkins (1989), the term “sex” in civil rights statutes must encompass not just discrimination based on biological sex, but also discrimination on the basis of failing to meet expectations based on sex stereotypes. Thus any narrow reading of the language to include only biological sex characteristics misapplies Supreme Court precedent. Further, the fact that Congress did not act on legislation to include “gender identity” specifically within federal civil rights statutes is not a valid reason for limiting the scope of the law, as there are many reasons Congress could have chosen not to pass such an amendment (such as a belief that the existing law already provided protections for transgender students). And finally, Whitaker argued that the school district had been unable to show any tangible way in which cisgender students would actually be harmed by sharing restrooms or locker rooms with transgender students. These arguments are typical of the cases in this area, and so far have met some level of success in the courts.

While none of these cases have yet made it to the Supreme Court, and thus this emerging interpretation of Title IX remains subject to future revision, in October 2019 the Supreme Court heard arguments in a case about the reach of Title VII to transgender people (R.G. & G.R. Harris Funeral Homes v. EEOC) featuring a transgender plaintiff who was fired from her job after announcing her transition. The Court at the same time heard two other cases about whether sexual orientation is included under the protections of Title VII (Altitude Express v. Zarda; Bostock v. Clayton County, Georgia).

On the legislative side, in May 2019 the House of Representatives passed the Equality Act (H.R. 5, 116th Cong. (2019)), the first time LGBTQ discrimination protections have passed either house of Congress. While the bill is unlikely to become law under a Republican-controlled Senate and White House, the enactment of the Act would both explicitly add gender identity and sexual orientation to the list of protected classes under federal anti-discrimination law, and include sex in the list of protected classes for public accommodations protections for the first time.

State Law

Given the general lack of federal protection in public accommodations for transgender people, and the relative uncertainty of protections in the educational context, issues of public accommodations protection for transgender individuals in the United States outside educational contexts is largely a matter of state law. Forty-four states include “sex” in their public accommodations laws, while 19 jurisdictions are explicit in protecting people in public accommodations based on their gender identity. And while some states have not formally altered their public accommodations statutes to include gender identity, many of them nonetheless provide some level of protection, either by including gender identity under the statutory definition of “sexual orientation,” or as simply a form of sex discrimination per se (National Conference of State Legislatures, 2016).

One prominent example of a state court interpreting state law in this area is the decision of the Maine Supreme Judicial Court in Doe v. Regional School Unit 26 (2014). Maine’s Human Rights Act was amended in 2005 to include protections against sexual orientation discrimination (which the statute explicitly defines as also encompassing gender identity). The Supreme Judicial Court held that refusing to allow a transgender girl access to bathrooms in a public school consistent with her gender identity violated the law, notwithstanding other Maine laws requiring educational institutions to maintain toilets “separated by sex.” While other states are free to interpret their civil rights laws differently, the Maine case provides an example of how refusing to allow transgender individuals to use the bathrooms that correspond with their gender identity can be legally actionable as a form of discrimination.

Another issue that frequently arises with respect to state anti-discrimination laws is state pre-emption of local anti-discrimination ordinances. The most widely publicized example of this was North Carolina’s House Bill 2, which passed in March 2016 and removed the ability of municipalities to pass their own anti-discrimination policies that provide more protections than state law (as well as preventing them from enacting minimum wage or child labor protections). Similar legislation was considered by legislators in at least 20 different states in the 2017–2018 legislative cycle alone (Movement Advancement Project, 2018b). These laws were often passed in response to large, urban (generally Democratic-leaning) cities that attempted to pass anti-discrimination ordinances and public accommodations protections within the confines of their city. In states with large rural populations, these pre-emption laws have been argued to be a way of reasserting rural power against perceived urban overreach (Boso, 2019). States generally have the ability to pre-empt local ordinances, as all local government authority is considered to be delegated from state governments (Gossett, 1999), though this pre-emption ability is not without limit. In 1996 the Supreme Court ruled in Romer v. Evans (1996) that a constitutional amendment passed by voters in the state of Colorado that prohibited the state or any of its political subdivisions from enacting or enforcing any ordinance that would provide protections on the basis of sexual orientation was an unconstitutional violation of the Equal Protection Clause.

Constitutional Limits of Public Accommodation Laws

In addition to the issue of whether public accommodations law applies to transgender people, there are currently constitutional concerns about the scope of such laws in the first place. While the Supreme Court has long said that federal public accommodations laws were valid exercises of Congress’s power to regulate commerce (Heart of Atlanta Motel v. United States, 1964), more recent cases call into question the government’s ability to apply the law in certain scenarios. In Boy Scouts of America v. Dale (2000), the Supreme Court held that the Boy Scouts had a constitutional right to “expressive association” under the First Amendment and therefore could refuse to allow homosexual members, notwithstanding state laws prohibiting such discrimination. More recently, the Court addressed whether anti-discrimination laws could require a Christian baker to make a wedding cake for a same-sex couple in Masterpiece Cakeshop v. Colorado (2018). While the Court ruled only that the process in that particular case was tainted with animus against religion, and seemed to largely uphold the broader concept of anti-discrimination laws in public accommodations even in the face of religious objections, the issue has not been clearly decided, especially in light of the changing center of power brought on by Justice Kennedy’s retirement and his replacement with the more conservative Justice Kavanagh. It may still be in the years to come that the Supreme Court reads a religious liberty exemption into all anti-discrimination laws, including laws involving public accommodations. One potential avenue for such a decision may be Fulton v. City of Philadelphia(2019), in which an appeals court ruled that Philadelphia could constitutionally refuse to make referrals to foster agencies that do not place children with same-sex foster parents for religious reasons. The Supreme Court has agreed to review the decision in its 2020–2021 term.

Policy Debates in Legislative and Public Discourse

While the legal framework, though still developing, appears to be growing more supportive of transgender people in the court of law, legislative debates and the court of public opinion about gender identity-inclusive non-discrimination laws have a distinct and often more vitriolic tenor. Central to these discussions are concerns over public safety in public restrooms, locker rooms, and changing rooms and over a belief that gender identity-inclusive public accommodations laws create a loophole for sexual predators to assault women in these spaces (Schilt & Westbrook, 2015). For example, lawmakers in North Carolina levied the following arguments in support of House Bill 2, which repealed municipal gender identity-inclusive public accommodations laws:

[T]he City Council of Charlotte lost their mind, and decided to embark upon a very radical course … of radical political correctness. And in so doing, created a—a real public safety risk … allow[ing] men in to the locker rooms and the bathrooms of females—of our daughters, of our wives, … and that common sense tells us that men don’t belong in the ladies’ bathroom. It’s a matter of public safety. Under this ordinances that they’ve put forward, anyone quite frankly, with—with that intent, could use this Charlotte ordinance as an excuse to be somewhere that we all know they don’t belong. (House Bill 2: Senate Floor Session, 2016)

Similar debates have occurred in municipalities and states where direct initiatives and referendums have put the responsibility of policymaking to their residents (Stone, 2012). For example, Schilt and Westbrook’s (2015) content analysis of campaigns opposing transgender inclusive policies finds: “Interestingly, such fears centered exclusively on women’s spaces, particularly restrooms” (p. 27; see also Westbrook and Schilt, 2014). What some have termed “bathroom panics,” or what Schilt and Westbrook (2015) call “penis panics,” is the use of a rhetorical strategy to intensify fears of male genitals in sex-segregated spaces for women. The arguments likely stir emotions grounded “in deep cultural fears about the vulnerability of women and children” (Schilt & Westbrook, 2015, p. 31). The rhetoric of initiative campaigns, while perhaps persuasive to the public (Flores, 2018), also uniquely psychologically affects LGBT people, inducing stress and other psychological responses (Flores, Hatzenbuehler, & Gates, 2018).

The linkage between sexual predation and LGBTQ people is not new. Historically, the focus has often been on gay men predating on youth. The campaigns led by Anita Bryant and California’s Briggs Initiative hinged on the argument that gay men predate upon young men (Schilt & Westbrook, 2015). While the current rhetoric does not explicitly claim that transgender people are sexual predators, it denies the legitimacy of transgender lives: the experience of transgender people is flattened to the mere “choice” or “claim” of a gender identity that is different from one’s sex assigned at birth. Additionally, Schilt and Westbrook (2015) contend that transgender women are also put into the category of “men,” and thus are conveyed as a threat to women and children.

These arguments were consistently portrayed in public initiatives and referendums regarding the inclusion of gender identity in public accommodations policies. In 2015 residents of Houston repealed an equal rights ordinance largely due to its inclusion of gender identity protections in public accommodations. One advert in particular drew widespread attention, which emphasized concerns over the safety of young girls (Oberg, 2015). The advert showed a young girl entering a bathroom stall followed by a hooded man, suggesting that such ordinances would allow such incidents to occur. While the advert drew widespread condemnation from politicians, it was also widely considered that these beliefs motivated the repeal of the Houston ordinance (Oberg, 2015). Similar arguments were presented to residents of Massachusetts in 2018 when a similar referendum was on the ballot to repeal the inclusion of gender identity in the state’s public accommodations law. That referendum failed to pass by a wide margin (68 against the repeal to 32 in favor), and in the aftermath the campaign in favor of repealing the law admitted that they “concocted the ‘bathroom safety’ male predator argument [because it] worked in Houston a few years ago” (MassResistance, 2018). It might be the case that those opposed to these policies were motivated to focus on safety concerns because voters appeared to be receptive to them, in contrast to any evidence of actual harm brought about by such policies.

Arguments in favor of gender identity-inclusive public accommodations laws contend that discrimination on the basis of one’s gender identity ought to be proscribed (Movement Advancement Project, 2018a). The frame is that all people should be free from discrimination, including transgender people. The discourse around public restrooms also highlights that transgender people are more likely to face assault or discrimination in these spaces (Herman, 2013). Additionally, proponents tend to argue that restrictive accommodations policies are unenforceable without some type of investigation to one’s biological sex characteristics, which likely violates everyone’s privacy. Finally, proponents contend that these policies are all about basic fairness, and that transgender people, just like all other people, need to use spaces of public accommodation including public restrooms.

Public Opinion and Transgender Public Accommodations

The American public has found such arguments compelling. Flores, Haider-Markel, et al. (2018) and Miller et al. (2017) find the American public considers transgender rights along two dimensions. Along one dimension are policies about equality for transgender people, such as general equality, employment non-discrimination, and inclusion in the military. Along the second dimension, however, are policies relating to public accommodations: whether policies should protect transgender people in public accommodations, whether businesses should have the right to refuse services to transgender people, and whether or not transgender people can use a restroom consistent with their gender identity. Miller et al. (2017) frame the second dimension as one of reflecting policies that center on transgender bodies. Interestingly, these two dimensions reflect the arguments surrounding transgender rights. Proponents frame the issue as one of fairness and equality, while opponents center their arguments on the potential harms of providing public accommodations specifically in public restrooms, changing rooms, and locker rooms. The American public tends to conceptualize transgender rights in both these ways. Importantly, when it comes to equality policies, the public is clearly more supportive, and when it comes to accommodations policies, the public is less supportive.

Figure 1. Public opinion on transgender non-discrimination in public accommodations policies.

Source: GfK Survey, October 9–11, 2015.

Figure 1 shows a breakdown of the American public’s attitudes about transgender accommodations policies. These data come from a survey fielded by GfK in coordination with multiple investigators between October 9 and October 11, 2015, consisting of 1,020 interviews (for further details see Taylor, Lewis, Haider-Markel, et al., 2018). In Figure 1, it is clear that the American public has broader support for abstract policies pertaining to the equality of transgender people. About 56% of the American public believes that transgender people deserve the same legal protections as lesbian and gay people, and 45% believe Congress should enact legislation to protect transgender people from discrimination in public accommodations. Moreover, 61% of Americans think that transgender people deserve the same rights and protections as other Americans. About 47% of the American public do not think businesses should be capable of refusing services to transgender people based upon the business’s religious beliefs. The public is more tepid, however, when it comes to certain specific situations involving transgender rights. The public is about evenly divided about whether a local business should be capable of not hiring a transgender person.

Figure 2. Public opinion on transgender people’s access to public restrooms.

Source: CVR Survey, June 18–28, 2016.

The public also appears more divided when they are asked questions specific to transgender access to public restrooms. Figure 2 plots public attitudes toward access to public restrooms for transgender people. These data are from the vendor, Clear Voice Research (CVR), which maintains an empaneled set of persons who are recruited to participate in multiple surveys. CVR successfully completed 1,291 interviews between June 18 and June 28, 2016. Overall, the results show that depending on how the question was asked, the American public is far more divided when it comes specifically to restrooms. A majority of Americans (52%) considers allowing transgender people to use the restroom they choose poses a security risk to women and children, and 65% agree with the statement: “It’s simple: men should use the men’s restroom, and women should use the women’s restroom.” The public is evenly divided about whether they believe policies restricting transgender people to use restrooms consistent with their assigned sex at birth are discriminatory toward transgender people. Forty-four percent, however, do consider that restrictive policies may pose a threat to the safety of transgender people, though 34% disagree.

Which sectors of the public are more or less supportive? Taylor, Lewis, Haider-Markel, et al. (2018) find a very slight gender gap with women slightly more favorable than men, and Harrison and Michelson (2018) find that men who place greater importance on their masculinity are more opposed to transgender rights than others. Additionally, Taylor, Lewis, Haider-Markel, et al. (2018) find that those with greater attendance at religious services are more opposed than those who attend less frequently or not at all. Finally, partisanship is clearly related to people’s positions on these issues. Partisanship, indeed, moderates the effect of experimental treatments that are shown to increase people’s favorability of transgender people, with Republicans unaffected by such treatments (Flores, Haider-Markel, et al., 2018).

The rhetoric taken up by opponents of gender identity-inclusive policies appears to be compelling in the court of public opinion. If accommodations laws boil down to access to public restrooms, changing rooms, and locker rooms, then the public’s approval of such policies becomes far more contentious. Public opinion data suggest that support for transgender accommodations policies is broad, but it lacks depth; the abstract ideas of non-discrimination are easier for the public to embrace than policies specific to non-discrimination implementation. The public opinion data reflect the “bathroom panic” emphasized by much of the rhetoric surrounding gender identity inclusion in public accommodations policies.

What then may change people’s minds on transgender rights in the area of public accommodations? Broockman and Kalla (2016) have conducted a field experiment in Florida to examine whether “deep canvassing”—the strategic use of in-depth conversations at people’s doorsteps—on the issue of transgender public accommodations policies durably changes people’s positions on these issues. The strategy entails training canvassers to engage in reflective conversations with people for them to build empathy with transgender people and rights. Broockman and Kalla (2016) find that these conversations may increase support for transgender people and rights. They further show that these effects may be enduring as people are affected by these conversations months after they occurred. The authors further experimented on their research subjects by showing them television advertisements opposed to gender identity-inclusive public accommodations policies, which rely on the rhetoric we described earlier. Broockman and Kalla (2016) find that these adverts are indeed immediately persuasive; regardless of treatment condition, people are less supportive of these policies after viewing the adverts. Those who had deep canvassing conversations, however, were less likely to be persuaded, suggesting that those in the treatment condition are on average more inoculated to the rhetoric against gender identity-inclusive public accommodations policies.

Deep canvassing is a lengthy and resource-intensive process, and other investigators have attempted other experimental treatments to examine persuasive appeals on transgender rights, broadly, and accommodations policies in particular. Harrison and Michelson (2017a) propose an identity-based model of persuasion. The underlying idea here is that a social identity unrelated to LGBT rights (e.g., a sports fan identity) can be used strategically as a common ground from which to encourage people to reconsider their prior positions on LGBT issues (see also Harrison and Michelson, 2016). Harrison and Michelson (2017a) show some evidence that the approach may be worthwhile on transgender rights. Harrison and Michelson (2017b) show the utility of experimental methods and, particularly, survey experiments on examining public attitudes on transgender rights. These experiments, however, often show that it is more difficult to increase support for accommodations policies than it is to decrease support. They find public safety frames against gender identity-inclusive public accommodations laws significantly reduce support for such policies. As another example, Harrison and Michelson (2018) show that when men’s masculinity is threatened, they are less supportive of transgender rights. Apart from Broockman and Kalla (2016), experimental studies fail to find many positive treatment effects on public support for gender identity-inclusive public accommodations policies.

Empirical Assessments of the Policy Arguments

The public is indeed influenced by the potential harms gender identity-inclusive public accommodations may have on public safety. Social and political science, however, can offer an assessment of the veracity of the arguments levied in these debates. In the most comprehensive assessment to date, Hasenbush, Flores, and Herman (2018) show that there is no relationship between gender identity-inclusive public accommodations ordinances and victimizations in spaces of public accommodation. If anything, Hasenbush et al. (2018) suggest that locations that pass these policies have fewer victimizations than similarly situated locations that do not. The authors examine Massachusetts at a time when it had a gender identity non-discrimination law that explicitly did not include accommodations and when there were some municipalities that expanded upon state law by adding accommodations to their non-discrimination ordinance. By matching these localities with similarly situated localities, Hasenbush et al. (2018) have acquired public records data from law enforcement offices for criminal incidents in public restrooms, changing rooms, and locker rooms. The data fail to show a change in relation to the passage of gender identity-inclusive public accommodations policies. While only of one state, Hasenbush et al. (2018) suggest the rhetoric fails to meet reality. Anecdotal evidence in interviews with local law enforcement officials also suggests that these policies have no relation to an increase in criminal incidents (Maza, 2014; Percelay, 2015).

If anything, research suggests that it is transgender people who are more likely to victimized in spaces of public accommodation, especially in public restrooms, locker rooms, and changing rooms. The 2015 United States Transgender Survey (USTS) is the largest survey of transgender people in the United States (James et al., 2016). Although the sample is purposive, it provides a unique and thorough snapshot of the experiences of transgender people. One-third of transgender respondents have experienced a denial of service, equal treatment, verbal harassment, or physical assault in public transportation because the staff knew or thought they were transgender, and 31% of transgender people have had these experiences at private businesses such as retail stores, restaurants, hotels, or theaters. One in five transgender people do not use certain public accommodations due to a fear that they would experience such mistreatment or denial of service.

Public restrooms are a unique source of potential problems for transgender people. A majority of transgender people (59%) in the USTS avoid using a public restroom out of fear of confrontation or other problems that might be encountered in those spaces, and 12% have experienced verbal harassment in those spaces (James et al., 2016). This fear can be pervasive. Some transgender people (32%) limit the amount of food they eat and liquids they drink to avoid public restroom use. These experiences add to the unique stressors transgender people experience on a daily basis, and public restrooms become a key source of minority stress (Herman, 2013).

The empirical research fails to show that the rhetoric surrounding gender identity-inclusive public accommodations is out of alignment with what is currently known about the effects of these policies. Further, transgender people may be uniquely discriminated against and targeted when accessing public accommodations. A potential source for these negative encounters is the use of a sex classification by both public and private institutions to implement policies and provide services.

Should Gender Matter?

Sex classifications may be one way that transgender people are uniquely targeted for mistreatment but another is how both public and private institutions regulate sexed bodies. Fogg Davis (2014, 2017) contends that sex classifications are used arbitrarily, yet are often relied upon to regulate gender. Moreover, such determinations of sex and gender are left to public employees or individuals in the general public:

Public restrooms and public transportation are very different public spaces, but I am struck by what the sex-classification policies regulating these two venues have in common. Both sex-segregated restrooms and sex-marked bus passes create scenarios whereby employees are granted the power to evaluate our sex identities. … Transgender and gender-nonconforming people bear the brunt of sex-identity discrimination. However, people who are “cisgender” … are also harmed by sex-classification policies. They are harmed on an existential level because such policies constrict everyone’s personal freedom to imagine and define not just our gender expression of masculinity and femininity, but also our authority to make self-regarding decisions about our sex identities.

(Fogg Davis, 2017, pp. 10, 13)

Sex classifications are ubiquitous in public and private spaces, and they are widely used in public policies. Fogg Davis (2014, 2017), however, questions whether sex classification should be used in these ways, and even if it should matter at all.

Fogg Davis (2014, 2017) argues that current non-discrimination laws can facilitate movement beyond the numerous sex-classification policies currently in place. Relying on a series of case studies, Fogg Davis (2017) provides an alternative for current practices in the United States in identity documents, public restrooms, single-sex colleges, and sex-segregated sports. The argument is not that sex classifications are entirely without merit, but rather that they are used to too great an extent, and that a competing perspective can minimize their use, which has the potential to benefit all people living across a gender spectrum. This argument is controversial to many because sex and gender are primary psychological schemas structuring how people understand themselves and perceive social spaces (Bem, 1981).

In areas pertaining specifically to public restrooms, Fogg Davis (2017) acknowledges that privacy and safety are indeed of great concern in these spaces. But the use of sex classifications, Fogg Davis (2017) argues, rather than furthering privacy or safety may in fact undermine those ends, especially for gender non-conforming people including those who may not identify as transgender but have gender nonconforming characteristics. Advocates in favor of all-gender restrooms call for a radical redesign of these sex-segregated spaces, arguing that more inclusive spaces may be a better means to provide safety and privacy (e.g., Kogan, 2017; McCall, 2016). Some transgender individuals, however, seek to use public facilities consistent with their current gender identity and find “gender neutral” approaches diminish the importance of their gender identity (Ball, 2015).

As opposed to an equality framework of transgender people “joining” a sex-stratified system, Fogg Davis (2017) argues that the abandonment of numerous sex-classification policies paves a new and preferable pathway to the liberation of all individuals subject to gender regulation. This argument remains controversial among supporters and opponents of the inclusion of gender identity in public accommodations laws. It does, however, engage in a thought-provoking exercise to understand the reach of public policy and administration when it comes to sex and gender.

Conclusion

Spaces of public accommodation are a constant source of dispute. Even though the historic Civil Rights Act of 1964 outlawed discrimination in public accommodations, the legal patchwork for gender identity remains uncertain. It is important to put the present case, especially with its rhetoric focused on public restrooms, both into the long contestation of these public spaces in American history and into the continued struggle for LGBTQ equality in the United States.

Public debates on the inclusion of gender identity in public accommodations laws are among the next set of high profile policy proposals. The current politicization of these issues reflects a shift in the opposition to the LGBTQ movement—a tactical innovation (McAdam, 1983; Stone, 2012). Transgender rights broadly and public accommodations policies specifically are one of the new tactical innovations in the current debate over LGBTQ rights in the United States. While many studies have not found that policy advancements in favor of LGBTQ rights cause a backlash against those rights (Barclay & Flores, 2017; Bishin, Hayes, Incantalupo, & Smith, 2016; Flores & Barclay, 2016), tactical innovation may be a different type of backlash or what Andersen (2017) calls a transformative event.

There are numerous dimensions of gender identity public accommodations policies; this article situates the subject as it pertains to social movements, American law, public policy and administration, public opinion, and sociology and social psychology. It has attempted to summarize what these literatures and understandings have brought to bear on transgender rights in the domain of public accommodations laws. It has also highlighted theoretical arguments challenging the current paradigm of the use of sex classifications in public life. Further development and inquiry absolutely are needed in all these areas. The American public may be more tepid and persuadable than is currently thought when it comes to safety arguments opposing gender identity-inclusive public accommodations policies. The heightened attention now being paid to these issues likely increases the probability the American public will consider and elaborate on the subject, one which they potentially have never encountered until now (Petty & Cacioppo, 1986). Perhaps increased attention will be one pathway through which legal scholars, lawyers, policymakers, and the American public may come to understand the empirical realities of the experiences of transgender people in spaces of public accommodation.

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Cases

  • Adams ex rel. Kasper v. School Board of St. John’s County, 318 F.Supp.3d 1293 (M.D. Fla. 2018).
  • Altitude Express v. Zarda, 883 F.3d 100 (2nd Cir. 2018).
  • Bostock v. Clayton County, 723 F. App’x 964, 965 (11th Cir. 2018).
  • Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
  • Doe v. Regional School Unit 26, 86 A.3d 600 (Me. 2014).
  • Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019).
  • G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016).
  • Gloucester County School Board v. G.G., 137 S.Ct. 1239 (2017).
  • Grimm v. Gloucester County School Board, 400 F. Supp. 3d 444 (E.D. Va. 2019).
  • Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
  • Lusardi v. McHugh, EEOC Decision No. 0120133395, 2015 WL 1607756 (2015).
  • M.A.B. v. Board of Education of Talbot County, 286 F. Supp. 3d 704 (D. Md. 2018).
  • Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).
  • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
  • R.G. & G.R. Harris Funeral Homes v. EEOC, 884 F.3d 560 (6th Cir. 2018).
  • Roberts v. Clark County School District, 215 F.Supp.3d 1001 (D. Nev. 2016).
  • Romer v. Evans, 517 U.S. 620 (1996).
  • Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017).

Laws

  • The Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
  • Education Amendments of 1972, 20 U.S.C. §§ 1681–1688.