Idaho House Votes, Passes Trans Bathroom Ban In Private Businesses As Bill Rockets Through Legislature

The bathroom ban bill will now go to the senate.

Photo by Juan Marin on Unsplash

Yesterday, Idaho's House of Representatives passed one of the most sweeping anti-transgender bills ever advanced through a U.S. state legislative chamber: a bathroom ban that extends to private businesses. The bill, which passed 56-13, would allow individuals to sue private businesses that fail to prevent transgender people from using restrooms consistent with their gender identity. Existing bathroom bans across the country have been limited to schools, some colleges, or government buildings. This bill goes much further, effectively requiring every restaurant, gas station, and retail store in the state to police their restrooms—or face legal liability. For transgender Idahoans, it could mean there is nowhere safe to use the bathroom.

The bill, HB607, passed overwhelmingly in the Idaho House yesterday, 56-13, with one member abstaining. Four Republicans and all nine of the House's Democrats voted against it. The bill now moves to the Senate, where Republicans similarly hold an outsized majority. Should it pass there and be signed into law, Idaho would become one of the first states in the nation to target private businesses with a bathroom ban. Under the bill, government entities would face a $10,000 minimum penalty per instance that someone "encounters a member of the other sex" in a restroom, plus additional damages for psychological, emotional, and physical harm, plus attorney's fees. Private businesses, meanwhile, would face negligence liability for failing to "take reasonable steps" to prevent transgender people from using restrooms consistent with their gender identity—opening the door to lawsuits over every restroom in the state.

One Republican lawmaker, Rep. Stephanie Mickelsen, called the bill "an activist's dream," saying it "puts a bounty on the government of $10,000 just simply for somebody being in the wrong room—not for them having done anything, but just having been in the wrong room." She added, "I think that this bill is actually a way to intimidate and harass private businesses to push someone's particular agenda." She then voted for it anyway.

Under the bill, "reasonable steps" is left undefined. In practice, the bill will likely act as a way to weaponize vigilantism across the state. Any business that prides itself on being inclusive will be among the first to be targeted. For transgender people themselves, the bill creates a legal landscape that makes travel outside of one's home difficult. In order to go anywhere, they will have to know what gender-neutral bathrooms are in the region, or hope that they can use the bathroom consistent with their gender identity without being caught or reported. This kind of provision acts as a urinary leash, preventing transgender people from meaningful interaction with the general public. For a transgender person, basic things like going to a restaurant, attending a concert, or stopping at a gas station to use the bathroom all instantly become fraught with danger in a way that no state has established to this point.

The bill is a significant escalation. Most bathroom bans across the United States target transgender youth in K-12 schools. Some rarer bills target trans people in colleges or government buildings. But private business bathroom bans, until this year, were unheard of. Now two states—Kansas and Idaho—have transgender bathroom bans targeting private businesses advancing at lightning speed. In Kansas, the bathroom ban even comes with a bounty in which the transgender person themselves could be sued for large sums of money for using the "incorrect" bathroom. Given the speed at which these private bathroom bans are passing, Idaho could be an example of a new kind of bill that everyone in red states needs to be aware of.

One Republican, Rep. Clint Hostetler, spoke excitedly about the state being among the first to pass such a bill. “Just hearing that we may be the first state to implement something like this excites me,” he said. “I know there was a first state that stepped out in favor of preventing biological men from playing in women’s sports, and for us to lead the pack on this… I think is a noble and right cause… We are out to send a message that Idaho will do what it takes to protect our children and our ladies.”

Another Republican, Rep. Edward Hill, likened transgender people to sexual predators, stating, “Every father here faces that scenario of a biological man in the shower with their daughter and that’s a problem for everyone… to make sure that everyone’s safe and secure in public accommodations.”

Rep. Anne Haws, a Democrat, shared words of warning that the bill would be “a proof nightmare.” She asked, “How does one prove that an individual of a certain biological sex is in a room that’s been labeled with a different biological sex? You have to think through what that encounter looks like, right? So I am in a restroom. I encounter someone else, or someone else encounters me, and they think, well, you don’t really look like me, so you shouldn’t be in here. And what do I do? I have to take a picture of that person in that restroom to prove that they were there. Because that’s the only way to do it, folks. You’ve got to take a picture of someone in the restroom, or the business or governmental entity has to have monitoring by the door.”

The bill will now go to the Senate, which it must pass before going to the governor’s desk to be signed into law.