Numerous attempts to restrict where transgender people can use the restroom have been proposed in recent years, but one Virginia lawmaker’s latest legislation might be the most vicious. He actually wants to fine transgender children $50 if they use what he deems to be the “wrong” restroom.
Technically, Del. Mark Cole (R) wants to fine all transgender people $50 for using any public bathroom that matches their gender, but he makes a point to codify that this applies to students as well. What’s particularly odd is that he has filed two different bills that propose the same thing, but which are worded differently.
HB 663 requires that all public restrooms and all school restrooms, locker rooms, and shower rooms to be “designated for use by a specific gender to solely be used by individuals whose anatomical sex matches such gender designation.” It defines anatomical sex simply as, “the physical condition of being male or female, which is determined by a person’s anatomy.”
HB 781 uses slightly different language instead of “anatomical sex.” It requires that all public restrooms and all school restrooms, locker rooms, and shower rooms be “designated for and used by individuals/students based on their biological sex.” It defines “biological sex” as the physical condition of being male or female, which is determined by a person’s birth certificate and is identified at birth by a person’s anatomy or by a birth certificate amended in accordance with subsection E of § 32.1–269.” That statute does allow transgender people to change the sex on their birth certificate, but only if they’ve undergone sex reassignment surgery.
Both bills conclude, “Any person/student who willfully and knowingly violates this section shall be liable for a civil penalty not to exceed $50.” This money would go to the state’s Literary Fund.
What many people are asking is how Cole’s bills would be enforced. They stipulate that “any law-enforcement officer may issue a summons regarding a violation of this section,” but they don’t explain how those officers would know a violation had taken place.
As activist Tim Peacock surmises, “someone would physically have to verify someone is in the bathroom that does not correspond to the current state of his/her physical genitals.” He concludes that the legislation constitutes “forcing children to allow adults to examine their genitals out of misplaced fear that transgender kids and adults might commit a hypothetical never-before-seen act of violence or sexual aggression (that would still be against the law with or without transgender protections).”
In the case of HB 781, enforcement could instead take on a “show me your papers” model, where individuals would have to produce their birth certificate to use the restroom. Profiling of trans people would likely follow, and given that many trans people do not undergo the surgery necessary to change their birth certificates, they would remain incredibly vulnerable for prosecution. Sex reassignment surgery is not recommended for minors, so the bill’s different language would make no difference for transgender students.
Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, condemned the legislation for trying to ensure “that schools and other governmental agencies can purposely discriminate against transgender adults and children in Virginia.” They are “nothing more than ineffective, mean-spirited efforts to deny LGBT people in Virginia their constitutional and human rights.”
Cole described the legislation as “common sense legislation designed to protect the privacy of children and adults.” He claimed that “it does NOT require genital checks” and would only be enforced “on a complaint basis.”
The legislation resembles a similar bill recently filed in Indiana as well as several other bills filed last year, all of which took different approaches to criminalizing bathroom use by transgender people. None of them passed.