Explained: How bathrooms became the new battlefield for political war on gender

Gone are the days when conversations in the US centred around topics like murders, sexual assault, etc. These days, bathrooms, or more specifically bathrooms for transgender people, have become the topic of debate, and the latest state to join this debate is Kansas.

Overriding the state's governor Laura Kelly's veto, the state legislature on Thursday enacted what may be the nation's most sweeping transgender bathroom law. 

With this law, Kansas has joined at least eight other states in preventing trans people from using bathrooms associated with their gender identities, as opposed to the gender assigned at birth. The state even went one step ahead, imposing restrictions on locker rooms, prisons, domestic violence shelters and rape crisis centres.

The Kansas law, according to a report in The Guardian, stands out from other states' laws by legally distinguishing between male and female based on the sex designated at birth. It states that "distinctions between the sexes" in bathrooms and other areas serve "the important governmental objectives" of protecting people's "health, safety and privacy."

However, it is still not clear how the new law will be enforced.

The recent legislation in Kansas defines "sex" as the biological gender one is assigned at birth, which can only be male or female. However, it does provide some exemptions for intersex individuals if their condition is recognised as a disability under US law. Additionally, the law establishes clear-cut definitions for males and females based on their reproductive anatomy.

The bathroom wars: How it all started


Before Kansas, North Dakota enacted a law prohibiting transgender children and adults from using restrooms, locker rooms, or shower facilities in state-operated universities and correctional institutions.

North Carolina, in 2016, set the ball rolling by becoming the first US state to pass a bill barring transgender people from using bathrooms consistent with their gender identities.

Today, the following states have such laws: North Carolina, Idaho, Iowa, Alabama, Oklahoma, Tennessee, Arkansas, and Kansas.

Why bathrooms?

The battle, as per Vox, began in Houston, Texas in 2014. 

Back then, the Houston Equal Rights Ordinance (HERO) was passed by the city council.

It aimed to prohibit discrimination against individuals based on several characteristics - notably sexual orientation and gender identity - in the workplace, housing, and public places such as restaurants, hotels, and other venues that cater to the public. This local ordinance was created to address a deficiency in the laws of Texas due to which LGBTQ people are typically not covered by state and federal anti-discrimination legislation.

Nevertheless, conservatives ended up utilising it as a means to an end.

What do conservatives have against HERO?

They argued that businesses should be allowed to discriminate against LGBTQ people who go against their religious values.

In 2015, after lengthy legal battles, they even managed to get a referendum on HERO. Results predicted that while 45 per cent of adults in Houston would vote for HERO, 36 per cent would vote against it; the remaining said they were unsure.

But in spite of this, ultimately, HERO got rejected.

How was HERO rejected?

Conservatives used fear-mongering tactics related to bathrooms to sway public opinion against the HERO law, which would have allowed transgender individuals to use bathrooms corresponding to the gender they identify with, rather than assigned at birth. They claimed that if the law passed, men would disguise themselves as transgender women to enter women's bathrooms and sexually assault them. 

So, despite initially being popular in polls, the HERO law was rejected by voters in November due to the successful fear tactics employed by ceonservatives.

Since then, bathrooms have become the crude tool conservatives used to ban anti-discrimination measures in different states.

Would a law like HERO actually increase incidents of sexual assault?

In two separate investigations conducted some years ago, Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had seen no increases in sex crimes after they enacted anti-discrimination policies.

And while incidents of men sneaking into women's bathrooms have happened, they did not happen because of transgender protection laws.

In fact, in 2019, a team of researchers, including those from Harvard, found that "youth whose restroom/locker room use was restricted were more likely to experience sexual assault compared to those without restrictions."

As per research based on survey data of 3,700 American teens aged 13-17, around 36 per cent of transgender or gender-non-conforming students with restricted bathroom or locker room access reported being sexually assaulted in the 12 months period before the study. Among transgender boys, 26.5 per cent experienced sexual assault within the last year, while the percentage was 27.0 per cent for nonbinary youth assigned female at birth. Among transgender girls, the percentage was 18.5 per cent, and for nonbinary youth assigned male at birth, it was 17.6 per cent.

Overall, the scenario around transgender bathroom access remains complex and highly contested and is likely to continue to evolve in the coming years as the debate over LGBTQ rights and discrimination continues.

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