How Bathroom Bans on Federal Property Could Affect Transgender Americans

This blog is originally appeared at Them

A proposed bill in Congress seeks to prohibit transgender individuals from using bathrooms in museums, national parks, and other federal properties. How would this ban be enforced, and what potential consequences could arise?

Congress faces a long list of urgent priorities, including securing funding to prevent a government shutdown, many of which are expected to be postponed until 2025. One new addition to that agenda is legislation introduced by GOP Rep. Nancy Mace, which seeks to ban transgender women from women’s restrooms and transgender men from men’s restrooms on all federal property.

The South Carolina lawmaker introduced this bill after launching a campaign to remove newly-elected Rep. Sarah McBride of Delaware from women’s restrooms on Capitol Hill. Following House Speaker Mike Johnson’s announcement of a rule that aligned with Mace’s initial proposal, she expanded the bill to restrict all transgender Americans from using restrooms, locker rooms, and changing rooms on federal property nationwide.

If the bill were to become law, how would it be enforced, and what consequences would follow? What is the current atmosphere like for transgender lobbyists and advocates on Capitol Hill? The 19th spoke with several experts to learn more.

Where would such a law apply?
This sweeping legislation would lead to widespread discrimination against transgender individuals, experts warn, even though Mace’s rhetoric has primarily targeted transgender women. It could expose trans and nonbinary people to harassment and discrimination at national parks, courthouses, IRS buildings (such as taxpayer assistance centers), Social Security Administration offices, certain post offices, and Native American lands.

If enforceable, this federal ban would prevent transgender individuals from accessing spaces that are intended to be among the most accessible to all Americans, said Kelly Dittmar, an associate professor of political science at Rutgers-Camden University and director of research at the Center for American Women and Politics (CAWP).

“I would assume this includes Smithsonians and other federal buildings, museums, landmarks—places that should be accessible to the public, partly because they are government-funded or operated,” she explained.

The language in Mace’s proposed bill would limit bathroom access in “any building, land, or other real property owned, leased, or occupied by any department, agency, or instrumentality of the United States (including the Department of Defense and the United States Postal Service), or any other instrumentality wholly owned by the United States, or by any department or agency of the District of Columbia or any territory or possession of the United States.”

How likely is it that this ban will become law?
Mace’s bill is unlikely to advance until the new Congress is sworn in this January, as the Senate is currently adjourned until December 2, and members are focused on major defense and agricultural measures. When and if the bill does come up for consideration, it will likely face a potential filibuster by Senate Democrats, despite Republicans holding a majority in both chambers. It also remains unclear how much support Mace’s bill has within the Republican Party.

How would this law be enforced?
Mace’s proposal lacks details on how nationwide restrictions on bathroom use for transgender Americans would be enforced, and her office did not respond to a request for comment. To understand how such a ban might function in practice, experts point to state-level bathroom bans, many of which have surfaced since 2015 but have largely failed to become law.

State bathroom bans often provide few, if any, specifics on enforcement, as they rely on private citizens to act as enforcers. Logan Casey, director of policy research at the Movement Advancement Project, a nonprofit that tracks LGBTQ+ legislation, explains that these laws are de facto enforced by emboldening individuals to police others’ bathroom use.

“There’s no written enforcement because the proponents of these bills know that just by talking about this, let alone enacting these laws, they are emboldening individual people themselves to enforce these bathroom bans,” Casey said.

A recent extreme example of this can be seen in Odessa, Texas, where a new ordinance allows citizens to sue transgender people using bathrooms that match their gender identity, with damages of “no less than $10,000.”

Deputizing private citizens to enforce such laws can result in high rates of harassment and violence, particularly targeting transgender individuals and cisgender women who do not conform to traditional gender norms, Casey added.

What’s going on at Capitol Hill? Are trans people banned from bathrooms there?
“All single-sex facilities in the Capitol and House Office Buildings — such as restrooms, changing rooms, and locker rooms — are reserved for individuals of that biological sex,” said House Speaker Mike Johnson in a statement. This policy appears to apply to all transgender individuals working at or visiting the Capitol complex. Johnson’s office did not respond to a request for clarification.

Johnson’s statement also does not clarify how the new policy will be enforced. Mace’s original bill proposed that the House sergeant-at-arms would be responsible for enforcing a bathroom ban, but Johnson’s announcement did not reference this. His office did not respond to a request for comment regarding the enforcement of the new rule.

Without clear guidance on enforcement, transgender lobbyists and advocates like Caius Willingham, a senior policy analyst at Advocates for Trans Equality, are left to wait and see if they will be policed for simply trying to do their jobs and what the consequences of noncompliance might be. Unlike members of Congress, these employees don’t have access to private facilities, and when working on the Hill, alternative options are often scarce.

“The Capitol grounds are massive. Some buildings don’t even have a single, single-occupancy bathroom. So practically, if I’m going to spend the day on the Hill meeting with legislators and staff, which is core to my job, I may have to be strategic about what bathrooms I use,” Willingham said. “I might have to run outside to find a restroom outside the Capitol building.”

The broader implications of a federal bathroom ban would extend this restriction to all of D.C., Willingham added, considering how many people work in federal buildings.

Is this legal?
Court opinions on this matter have been divided. Last year, the 11th U.S. Circuit Court of Appeals upheld a Florida policy banning transgender students from using bathrooms that align with their gender identity. However, in 2021, the Supreme Court sided with trans advocates by upholding a 4th U.S. Circuit decision that found a Virginia bathroom ban unconstitutional.

Two states—Utah and Florida—ban transgender individuals from using bathrooms and facilities that match their gender identity in all government-owned buildings, K-12 schools, and colleges, according to the Movement Advancement Project. Violating these laws is a criminal offense in both states. Seven other states have passed laws restricting trans Americans’ bathroom access only in K-12 schools.

Article I of the Constitution grants Congress broad jurisdiction over its own internal rules and procedures. However, Mace’s proposed federal bathroom ban could conflict with recent Supreme Court precedent, according to Barbara Comstock, a former Republican congresswoman from Virginia. The majority opinion in the Supreme Court’s 2020 decision in Bostock v. Clayton County, written by conservative Justice Neil Gorsuch, ruled that discrimination based on sexuality or gender identity constitutes unconstitutional sex discrimination.

“I don’t think they’ve looked at this in light of the law whatsoever,” Comstock said. “So I think this is just an embarrassing stunt — which does raise attention to the challenges and discrimination faced by transgender Americans.”

Who is actually endangered by trans people using the bathroom?
Research shows that it is transgender people, not cisgender individuals, who are most at risk of violence and discrimination when using the restroom. Transgender people often face harassment, verbal abuse, and even physical violence when trying to use restrooms that align with their gender identity.

The 2015 U.S. Transgender Survey found that many transgender people avoid public restrooms due to fear of mistreatment. Of over 27,000 respondents, 26 percent said that in the previous year, they had been denied access to restrooms, had their presence questioned, or were verbally harassed, physically attacked, or sexually assaulted while using a restroom.

Research from the Williams Institute at the University of California, Los Angeles School of Law, conducted in 2018, found that expanding non-discrimination laws to include transgender people does not increase the frequency of criminal incidents in restrooms, locker rooms, or changing rooms. While Mace and other Republican lawmakers have argued that banning trans women from women’s restrooms will protect cisgender women, empirical evidence does not support the claim that including transgender people in these spaces leads to safety or privacy issues.

Willingham shared his experience working in the House as a legislative assistant to Rep. Pramila Jayapal of Washington from 2021 to 2023, noting that his identity as a transgender person was never an issue. Despite witnessing transphobic rhetoric from some members of Congress during hearings and debates, he was treated with respect by colleagues. It was a jarring and frustrating experience for him.

“It’s really frustrating to see things go backwards in Congress,” Willingham said. “My experience working even across the aisle was extremely positive.”