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

linkedin
Share on Google+
Share on Reddit
Share on Tumblr
Download PDF

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.

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

  1. I categorize and save all SOG emails for easy retrieval. I cannot figure out in which folder to put this one.

  2. Of all the people in Raleigh, Senator Philip Berger, recently awarded an “A+” by the NRA’s Political Victory Fund,” should appreciate how completely ineffective “trans-fee” signs and “trans-free” zones are.

  3. Your impression that law enforcement officers “will want nothing to do with such an investigation, unless there is some suggestion of inappropriate activity in the bathroom” is incorrect sir.

    Law enforcement officers take an oath to enforce ALL laws and we DO NOT pick and choose laws to enforce. I find it very disingenuous of you to suggest that our officers are oath breakers.

    Law enforcement officers will do what they have always done in the past as perverted men and women trying to satisfy their perversions is not something that is ‘new’ and in fact is quite common.

    Law enforcement officers will simply ASK them if they are male or female and in cases where cooperation is not forthcoming orally the officer will rely on NCID|NCOL|Past contact biodata. It would be very unusual for none of that to reveal the sex of the offender.

    I can’t imagine why you’d want to cast this as anything other than commonplace as enforcement of keeping perversion out of the restrooms has been the NORMAL for 200+ years in this nation.

    There is no argument here and the standard is most simplistic:

    If you have a penis you use the men’s room…

    If you have a vagina you use the women’s room…

    No, it does not matter what YOU THINK you are.

    let me stress this again because it is important;

    No, it DOES NOT MATTER what YOU THINK you are.

    Now for those who will whine that they are ‘offended’…

    It’s now very common to hear liberals say “I’m offended by that.”, “I’m insulted!” As if that gives them certain rights. It’s actually nothing more…than a whine. “I’m insulted by that.”,”I find that offensive.” It has no meaning; it has no purpose; it has no reason to be respected as a phrase. “I am offended by that.” Well, so what? We don’t care if you’re offended or insulted. Just because you’re offended or insulted doesn’t mean you’re right. It just means that you have character afflictions called Hypersensitive Personality Disorder (Avoidant Personality Disorder) and Narcissistic Liberal Disorder.

    Seek treatment.

    “So extravagant are the patterns of thinking, emoting, behaving and relating that characterize the liberal mind that its relentless protests and demands become understandable only as disorders of the psyche.” The Liberal Mind reveals the madness of the modern liberal for what it is: a massive transference neurosis acted out in the world’s political arenas, with devastating effects on the institutions of liberty. ~ Dr. Lyle Rossiter, Jr., M.D., University of Of Chicago Div Of Bio Sci Pritzker Sch Of Med: Graduated in 1962: Psychiatry – Board Certified, Forensic Psychiatry – Board Certified.

    • I have been using restrooms for my entire life without being accosted by the perversions of another person. I am sorry that you feel so unsafe in a public restroom that you feel a transgender person would be a danger to you or to someone else. If you are so scared to use a public restroom maybe you should find a safer place to defecate.

      • In my years of association with bathroom themed investigations it has always been straight, heterosexual males who are the offenders in women’s bathrooms. Straight guys hiding cameras to take pictures of women. Straight guys trying to peep on women. Straight guys sexually assaulting women. This law does nothing to protect women and does nothing to deter anyone from committing a crime they would be otherwise predisposed to perpetrate. The new law doesn’t even criminalize the presence of person in the bathroom of the opposite sex. Any charges will still arise from laws currently in place that are mentioned by Mr. Welty in his referenced article.

        As importantly, the new law forbids litigation in state court over discrimination. That doesn’t just affect LGBT people, it affects everyone. Previously, people were able to file a state lawsuit over a discriminatory firing, but that’s not an option anymore. You have to go Federal to have your day in court.

        On a personal note, if a biological male has undergone “The Full Caitlyn” and for all intents and purposes looks like a woman, I’m going to be the one feeling a tad uncomfortable if he (biologically speaking) wanders into the bathroom I’m using. If he (biologically speaking) is disposed to discreetly use the lady’s room stall, I’m pretty sure nobody is going to be the wiser or offended. Similarly, if Chaz Bono walked into a lady’s room I think she (biologically speaking) would cause more of a ruckus than if she (biologically speaking) simply went to the dude’s room.

      • Its not about the trans gender person, Its about sick minded people using this as a means to an end for their sick intentions. Imagine that a man goes into the girls bathroom at a high school sports event just to sit in the stall a masturbate to the sound of young girls urinating, and just says that he identifies with that gender to cover for his perversion, or even high school boys going into the girls locker room, the list could go on. The bill is not about restricting the rights of transgender people, its about safety, eventually we would see a rise in voyeurism and rape cases.

    • Your statement that I was being disingenuous motivated me to respond to the portions of your comment that are pertinent to the original post. First, my statement that “most officers will want nothing to do with” investigations into the sex of bathroom patrons was based on conversations with officers and agency attorneys. I didn’t purport to speak for all officers, and clearly there may be some who are eager to take these cases on. Second, I didn’t accuse anyone of being an “oathbreaker.” Officers have discretion regarding the enforcement of laws, as the Supreme Court recognized in Chicago v. Morales, 527 U.S. 41 (1999). Otherwise, officers would be compelled to ticket every motorist they saw traveling 36 m.p.h. in a 35 m.p.h. zone, and would be unable to complete any other duties. Third, if an officer were to ask a transgendered female “are you a man or a woman?” I assume that the answer, if any, would be “I am a woman.” So I doubt that “simply ASK[ing]” a bathroom patron about his or her sex will be an effective investigative strategy. Fourth, as to the idea that using criminal laws to enforce bathroom regulations is “commonplace,” I am not aware of statistical information on point but I did not see any appellate cases concerning convictions of transgendered individuals for using an inappropriate bathroom.

      • Despite the comments and efforts of Mr. Frank Lay to elevate this issue into a contentious fray in his belief that any opinion that is not in lockstep with his or yours is not to be tolerated and attacked I believe that this can be brought back to a level of civility.

        First to establish a fact or two.

        I have long respected your writings ‘Professor’ Welty (as Lay has so title droppingly informed us – I have a DD-214 myself) and have considered the information that you provide a very valuable resource for law enforcement officers. And I still do. But while I have a very high level of respect for you I do not place you on a pedestal. I have always felt that you want others to give you honest feedback but if I am incorrect please feel free to inform me so.

        [Welty] First, my statement that “most officers will want nothing to do with” investigations into the sex of bathroom patrons was based on conversations with officers and agency attorneys. I didn’t purport to speak for all officers, and clearly there may be some who are eager to take these cases on.

        JW Schrecker: Officers and agency attorneys? Can I safely assume that you refer to command staff officers and not line officers who actually respond to the calls for service? Rarely are agency attorneys in the know about such things as are command staff ‘officers’ who have not worked the line in a long time.

        When a line officer responds to a complaint of a man in a woman’s restroom or vice versa there WILL be action taken. And yes it will be common sense action. A man who mistakenly entered a woman’s restroom and immediately exited on realizing his mistake might be admonished to be more careful and released whereas a man in the woman’s restroom loitering to satisfy his perversions will be dealt with more severely.

        My concern is that newer law enforcement officers out there reading your posts would get the idea that they should be dismissive of the issue and not perform their duties because of the politics of it. THAT would be intolerable and I feel that I’m clearly within my rights to point this out to you. No officer should be concerned with the politics of this issue, only with the proper application of this LAW based on the elements of the laws only and politics and liberal whining be damned.

        [Welty] Second, I didn’t accuse anyone of being an “oathbreaker.”

        JW Schrecker: Your comment; “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.” calls the dedication and proper performance of duty of officers into question as it is suggestive that officers shun the difficult and would “trash” an investigation simply because it is tedious and difficult. The law enforcement officer WILL keep their oath of office and enforce the laws regardless of the current politics of the issue.

        This is simply NOT how law enforcement officers operate. If there is a call for service (complaint) then the responding officer will deal with it regardless of the difficulty. I shudder to think what you have been told and by who that has given you this impression of law enforcement officers. Any officers acting in this manner are quickly identified and terminated during field training.

        [Welty] Third, if an officer were to ask a transgendered female “are you a man or a woman?” I assume that the answer, if any, would be “I am a woman.” So I doubt that “simply ASK[ing]” a bathroom patron about his or her sex will be an effective investigative strategy.

        JW Schrecker:

        1. I cited more than just this one way of gleaning the sex of a person; “Law enforcement officers will simply ASK them if they are male or female and in cases where cooperation is not forthcoming orally the officer will rely on NCID|NCOL|Past contact biodata. It would be very unusual for none of that to reveal the sex of the offender.”

        2. But do allow me to clarify: There is nothing wrong with asking the suspect if they have a vagina or a penis. A smarter officer would as their answer is not dependent on what they ‘identify’ as such as man, woman, toaster, TIAMAT dragon.

        [Welty] Fourth, as to the idea that using criminal laws to enforce bathroom regulations is “commonplace,” I am not aware of statistical information on point but I did not see any appellate cases concerning convictions of transgendered individuals for using an inappropriate bathroom.

        JW Schrecker: Well hang on to you bloomers sir because I do believe that you will see them now that this law is established. I sure that you understand that previous ones are contained within trespass, disturbing the peace, and breaking and entering charges and it is not immediately apparent that the case is transgendered centric.

    • I echo Mr. Towler’s comments, my experiences in 29 years in law enforcement mirror his exactly. Further I agree with the assertions of Mr. Welty that most of us have far more pressing matters to tend to.

  4. Professor Welty, I know you take great strides to avoid reacting to some of the more inane comments posted here, but I cannot say thank you enough for the response to the intellectual equivalent of mindless drivel put out my Mr. Schrecker. The truly frightening thought is that there are still people out there, wearing a badge, with this mindset, straight out of the 50’s and 60’s junk science that classified homosexuals as perverts, miscreants and psychologically diseased. Thankfully, most officers are far smarter, accepting of others and focused on the part of the job that requires equal protection of all people.

  5. “Opponents of the bill argue that it violates the Equal Protection Clause”

    What “equal protection” is not being afforded under HB2?

    It looks to me a whole lot more like HB2 removed from some people “special protection”.

  6. That’s right Mr. Lay…there are many out there like me and despite your efforts to the contrary we will save you from yourselves. The ‘drivel’ you comically attempt to minimize is exactly the same mindset that is bringing about changes to this nation in the form of Donald Trump, this immediate issue (the bathroom PROTECTION law), illegal alien rejections, the recognition that muslims and islamists are evil and dangerous and numerous other rejections of socialist liberal, shall I say it….DRIVEL.

    But you keep right on telling/fooling yourself that you are somehow influential and relevant and that people like me care what you think or say.

    You see, It doesn’t matter what YOU think or say or don’t think or say. How you ever got the idea that was important to people like me somehow we’ll never know. Your belief that [insert nonsense here] has no bearing on the facts and truth of the matter. It is what it is regardless what YOU believe it is. Simply put; ‘is is.’

    Your comment gains you nothing because no one is even trying to convince YOU of anything and certainly not believing you on anything.

    I (we) don’t defend my (our) beliefs in the hopes of convincing the willfully ignorant like you. That’s a lost cause. We just separate the willfully ignorant from the merely ignorant on this Facebook wall. The latter is salvageable. The former rarely is, short of the sort of drastic measures I wouldn’t want to see inflicted on another human being, even a liberal. However, being liberal, they sometimes bring such measures upon themselves as do you, for which I cannot feel any personal remorse.

    The willfully ignorant aren’t to be convinced, they are to be mocked. Their flaws are to be pointed out until everyone around them realizes how truly moronic and ignorant they are. Remember that argument is theater, and our performance isn’t aimed at the opponent, but rather at the audience. The goal is three fold;

    1. Give ammo to the people already on your side.
    2. Convince the undecided.
    3. Allow your opponents to display their petty ignorance to the world.

    And with you we have certainly excelled regarding point #3 sir.

    Good day.

    • “There is no argument here and the standard is most simplistic:
      If you have a penis you use the men’s room…
      If you have a vagina you use the women’s room…”
      This is not a correct interpretation of the bill NB-2 , now law, as written. The law does not address visible genitalia, only the ‘female’ or ‘male’ designation on a birth certificate. You have an overly simplistic view of sex and gender. Some individuals have neither a vagina nor penis, through birth, accident or war. Some have both.

      Perversion is not a matter of the groin being consistent with a document. Rather perversion may indeed be an obsession of what other people have between their legs in the bathroom stall adjacent to the one you are using.

  7. Thank you Prof. Welty for the thoughtful commentary. At first I thought this was all just political theater, but then I read through the above comments. I realize now that NC transgender persons likely will soon be dealing with extreme embarrassment and/or criminal sanctions.

    You indicated possible criminal charges of 14-159.12 (Trespass) and 14-54 (B&E). I suspect we may also see Indecent Exposure charged using 14-190.9(a) and/or -190.9(a5). And I suppose with aggressive enforcement even 14-54(a1) (Felony B&E – intent to terrorize). Fortunately, I don’t see any sex registration implications except perhaps 14-190.9(a1). My gut feeling is we will not see either 14-54(a1) or 14-190.9(a1), although the widespread use of the “pervert” term causes me concern regarding possible aggressive enforcement somewhere in NC.

    I don’t think we will see a rash of these cases in my County; however, the comments on this thread have made me realize that we may well soon be dealing with such cases in NC. As a criminal defense attorney, I’ve represented a good number of transgendered persons over the years. This got me thinking about how I can help clients/witnesses avoid embarrassment and criminal charges during those long days in court. Unless I misread the new law, Single-Occupancy Bathrooms are OK even if labeled for men and women. I see nothing wrong with escorting persons back into private areas of the courthouse where they could then use the Single-Occupancy Bathroom of their choice. For example – empty jury rooms.

    Again, thank you for starting a conversation on this topic. If I get a client charged with one of the above crimes, I may turn back here for further ideas regarding the more expensive and court-time consuming constitutional implications.

  8. I would like to thank Mr. Richard Wells for bringing to mind ANOTHER excellent resource that a law enforcement officer should use to determine the sex of an individual…the SEX OFFENDER REGISTRY. Not only would that assist with establishing the offender’s sex it would also bring to light ADDITIONAL charges for Mr. Wells to ‘attempt’ to defend.

    You are right sir…this thread is certainly worth saving for future reference.

  9. I was trying to think of how to write a law that would function to give proper privacy to those in public bathrooms, showers segregated by sex, if I were Charlotte government and I could not come up with one. That’s what brought about this new bill.

    I wonder how it would go for Charlotte if the football team used the girls’ showers. Nowadays I doubt all girls would flee!

    If it is as a person self-identifies, then that seems to swing the doors wide open to access to all by all. If I’m at a city park or pool and ‘feeling’ my feminine side, am I going to be able to stroll in to use the cleaner “ladies” room for a sit down job, or shower off and change after a dip in the pool in the women’s side — just because I say I ID as feminine that day despite wearing a man’ speedo?

    Yet, if I crossdress, how awkward it is going to be to walk into my “bio-bathroom,” say a men’s room, with a dress on? At some level, some common “looks like a duck” sense is going to have to prevail.

    If I write the law saying the way one dresses is what defines which bathroom I can use, how is that defining when I see people daily whose attire does not define their sex/gender ID? What if dropped the “bio-identity” and said if one had the penis or breasts removed, was taking the ‘right’ hormones? I don’t see how that would make it simple.

    I don’t know how many North Carolinians are transgender so I don’t know how to size this issue other than by the strong response to the city vs state laws.

    One solution for government facilities would be private, single unit bathrooms, but is the state forced to see to the privacy of anyone. Privacy is the basic issue under all these questions.

    I’ve lived 7 decades without bathroom confusion being a problem, but here it is. Yet, I don’t see a big problem to solve today, other than people liking to side up about who’s right or wrong, each side more righteous than the other. It’s now the legislature trying to restrain activist judges.

    As an extension to birth challenges, why can’t people self-identify age? Age limits are so arbitrary even at our best efforts. I’m feeling 21, set me up a drink, bartender.

  10. If you don’t have a birth certificate, where do you use the bathroom?

    • In the woods….with the other animals.

  11. Re: Richard Wells comments on possible charges:
    Does this mean that charges may vary across jurisdictions for the same complaint? If so, is that a common or usual occurrence in NC when no specific penalty is prescribed?
    Thank you.

  12. The comment above by dj Anderson is one I have thought hard about, and have searched for a response to:

    “If it is as a person self-identifies, then that seems to swing the doors wide open to access to all by all. If I’m at a city park or pool and ‘feeling’ my feminine side, am I going to be able to stroll in to use the cleaner “ladies” room for a sit down job, or shower off and change after a dip in the pool in the women’s side — just because I say I ID as feminine that day despite wearing a man’ speedo?”

    At what point, if any, does Indecent Exposure come in to play (assuming the Charlotte law would be allowed)? Keep in mind, he has not touched anyone, not photographed anyone, but most certainly would have exposed himself to woman and possibly children when going from the locker room area to the showers and back. I base this scenario on how many man handle them selves in showering facilities.

    Thanks!

  13. […] check birth certificates.  Raleigh police will continue to respond to any complaints and enforce existing criminal laws applicable to bathroom […]

  14. Without commenting one way or another about HB2, I have a question that is not addressed by this blog itself. Professor Welty, what do you think about NC’s indecent exposure statute, which states, “any person who shall willfully expose the private parts of his or her person in any public place and in the presence of any other person or persons, except for those places designated for a public purpose where the same sex exposure is incidental to a permitted activity . . . shall be guilty of a Class 2 misdemeanor.” Your blog only addresses trespassing and B/E statutes, but I am curious as to your opinion on how the indecent exposure statute affects transgender people. It only exempts exposure in designated areas where there is “same sex exposure,” which I interpret to mean a public area, such as a locker room or restroom, used by members of the same sex. If the legislature is saying that “sex” is defined at birth, then aren’t transgender people who use the restroom of the gender with which they identify subjecting themselves to prosecutions for violating the indecent exposure law if another person of the opposite sex is in the restroom at the same time as they are?

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.