Florida Bathroom Ban Now In Effect: Enforcement Likely To Be A Disaster

The first criminal bathroom ban with a jail sentence has just taken effect overnight in Florida. Florida is now dangerous for transgender people to travel through, with arrests likely in coming days.

Transgender people in the state of Florida now face arrest as the nation’s first bathroom ban that contains a criminal penalty takes into effect. House Bill 1521, which carries the unprecedented weight of criminal penalties for noncompliance, took effect at midnight on Friday. The legislation mandates that transgender individuals must use public restrooms that correspond with the sex assigned to them at birth, even if they have legally updated their gender markers on their birth certificates and drivers licenses. Should a transgender person use the bathroom of their gender identity at the same time as a cisgender person, they can be forced to leave. Should they not comply, they will be charged with trespassing - a crime in Florida punishable by up to a year in jail.

Though Florida’s bathroom ban does not apply everywhere, it casts a wide net, covering an extensive array of public restrooms including those in city parks, beaches, airports, government buildings, and educational institutions. Transgender women changing clothes before going out on the beach, for instance, will be forced to use the male bathroom to do so - regardless of any legal gender markers on their documents. Transgender men will likewise be forced to do the same. These provisions could lead to incredibly uncomfortable scenarios.

Transgender people have a broad range of how they present in the general public, with many of them “stealth,” meaning they “pass” as their gender without disclosing their trans status. Previous attempts to legislate transgender people into the wrong bathroom have been disastrous, such as the case with House Bill 2 in North Carolina. Transgender men with large beards were forced into female restrooms, for example, and it became a common form of protest on the law to take selfies showing people the absurdity of the law’s consequences using the hashtag #WeJustNeedtoPee. See these selfies from HB2’s enforcement:

Pictures from transgender bathroom protests in 2015-2016.

Furthermore, using the restroom that the law requires does not protect transgender people. If transgender people do comply with the law, they may be read as the opposite sex, and therefore reported to authorities. Transgender people could therefore come under investigation regardless of which bathroom they use. Given that the investigation is criminal in nature, they could face any number of tests to determine their gender, ranging from genital inspection to chromosomal testing - it is uncertain exactly how local police departments will determine a transgender person’s gender once it is challenged.

There are many such examples even in places where there are no bathroom bans. In Ohio, where no such bathroom ban exists, the owner of a campground told a transgender man that he was to use the ladies room because he was assigned female at birth. He complied with this demand and went to the women’s restroom. On doing so, other campers accused him of being a transgender woman and proceeded to beat him. Similar stories are likely to follow in coming days in Florida.

Transgender man beat for using a women’s room, which he was required to do.

Cisgender people are unlikely to escape the effects of this law as well. Often when these policies are put into effect, it is cisgender people who are gender-nonconforming who get accused of being trans. Cisgender women with short hair, for instance, are often singled out and accused. This occurred recently in Las Vegas, when a woman was accused of being trans in a bathroom and harassed to the point of police being called. Video of the incident quickly went viral:

@creatingjayroseBeing harassed for using the bathroom and trying to tell me the police would get me for PEEING was definitely not on my list of things to do today #lgbt #nonbinary #trans #bathroom #karen #storytime #karensgonewild

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The law in Florida will apply very broadly and will target a large number of transgender people. Florida has the 2nd largest population of transgender people in the United States, with 94,000 people identifying as transgender. Furthermore, many flights pass through Florida, especially international flights. Conferences are very common in the state and could provide an additional reason transgender people need to travel through it. Given the sheer number of trans people that will encounter this law, arrests seem likely.

Moreover, there is a concerning knowledge gap surrounding the intricacies of the law among both the transgender community and those tasked with its enforcement. Transgender individuals might mistakenly believe that having updated gender markers would protect them. However, the law turns a blind eye to these changes, explicitly defining sex based on the attributes “assigned at birth,” underpinned by “chromosomes” and “genital presentation at birth.”

Similarly, businesses and federal entities may find themselves in error when it comes to comprehending enforcement. It's crucial to note that private companies and federal agencies fall outside the purview of this legislation. Nonetheless, there have already been instances that reflect this confusion; for example, a VA employee in Florida expelled a transgender woman from a restroom, oblivious to the fact that the law does not extend to federal buildings and that it had not even taken effect yet. The VA has since acknowledged the error and issued an apology.

A non-comprehensive list of facilities affected can be seen here:

• Conference Centers owned or leased by the state, including large ones such as the Orange County Convention Center and the Miami Beach Convention Center

• Airports that are publicly owned, which encompasses the majority of Florida airports.

• Schools and universities including private schools and universities in the state.

• City Parks and Beach Bathrooms of which there are thousands in Florida.

• City and state government buildings including state courthouses, the state legislature, city halls, and more.

• Stadiums that are owned or leased by state or local governments, including the Tampa Bay Rays Tropicana Field, the Tampa Bay Buccaneers Raymond James Stadium, and more.

• Rest Stops and Service Stations of which many exist along the Florida turnpike.

The shadow of North Carolina’s ill-fated HB2 looms large as Florida braces for the consequences of its own law. The aftermath of HB2 saw North Carolina besieged by boycotts and corporate pullouts; Florida is traveling a similar path as two prominent women’s conferences already have severed ties. LGBTQ+ organizations, including Equality Florida and the Human Rights Campaign, have already issued travel advisories for transgender individuals in Florida. As the law takes into effect, transgender individuals are now faced with difficult circumstances – the seemingly mundane act of using a restroom has become a perilous decision, fraught with potential legal consequences.