Alabama state Sen. Phil Williams (R) has proposed what he describes as a “backstop” if North Carolina’s anti-transgender law HB2 is struck down. He also claims his bill is not discriminatory to anyone, and the thing is, he might be right.
Like HB2, Williams’ bill dictates limitations for bathrooms, but they extend to any entity that provides public bathrooms instead of just state buildings. Based on the language in the bill though, it’s not clear they would actually impact transgender people at all. Here are the restrictions he outlines, according to a draft of the bill provided to the Decatur Daily:
Any person or entity that makes rest room, bathroom, or changing facilities available to the public shall do so in a manner that ensures the privacy of each individual making use of the rest room, bathroom, or changing facilities. The requirement of this section may be satisfied by providing any of the following:
- Rest room, bathroom, or changing facilities that are designed to be used by one person at a time.
- Rest room, bathroom, or changing facilities that are designed to be used by multiple persons of the same gender.
- Rest room, bathroom, or changing facilities that are designed to be used by multiple persons at once, irrespective of their gender, that are staffed by an attendant stationed at the door of each rest room to monitor the appropriate use of the rest room and answer any questions or concerns posed by users.
Requiring that unisex bathrooms be guarded is a bit absurd — and could be problematic — but it’s the second point that obviously seems to be geared toward anti-transgender discrimination. The problem is that the bill doesn’t actually define “gender.” In fact, ThinkProgress searched through the entire Alabama state code and found no other law where the word “gender” is defined. Thus, as written, the bill seems to allow transgender people to use the facilities that match their gender identity.
That doesn’t seem to be Williams’ intent, though. In the description of the bill he shared with the Times Daily, the second point specifies “biological gender.” In his own column describing the bill, Williams refers to facilities separated by “the physical gender of the users” as distinguished from facilities “provided in a unisex/transgender manner” — as if unisex restrooms are the only way to accommodate transgender restrooms.
Even with the modifiers “biological” or “physical,” the word “gender” would still seemingly protect transgender people. As the Department of Justice explained in its lawsuit challenging North Carolina’s HB2 — which instead uses the term “biological sex” and defines it according to a person’s birth certificate — research has already shown that there are biological components to transgender identities, “most notably sexual differentiation in the brain.” If Williams’ bill is designed to stand if HB2 falls, it would have to withstand the same argument.
Williams even claims that his bill “could just as easily protect a transgender user of a public facility from being harmed as well.” His bias against transgender people is nevertheless apparent in other comments he has made. His column introducing the bill skeptically referred to people who “claim a gender preference or identity other than the one with which they were born.” He has also rejected the Obama administration’s guidance protecting transgender students:
— Sen. Phil Williams (@SenPhilWilliams) May 14, 2016
Moreover, the impetus for Williams’ bill was Target’s policy of making sure its stores’ bathrooms were inclusive for transgender employees and customers. Much of the bill’s language actually focuses on what happens if an entity does not abide by the odd bathroom restrictions: a fine of $2,000 for the first violation and $3,500 for each subsequent violation.
Not only that, the bill grants any user of those restrooms a cause of action to sue if they aren’t in compliance. Not following the restrictions, the bill explains, “causes physical, emotional, or monetary damage to an individual,” and thus the entity (like a Target store) would owe “actual damages” or $1,000, whichever is greater. Judges, at their discretion, could also award up to three times any actual damages as punitive damages. This right-to-sue provision parallels several failed bills in other states that would allow families to sue schools for providing transgender inclusive bathrooms.
The Alabama legislature doesn’t reconvene until February, 2017, so Williams won’t have a chance to advance his “backstop” for some time.