A sweeping Idaho bill would criminalize transgender bathroom use in private businesses

BOISE, Idaho (AP) — Idaho lawmakers are considering a bill that would make it a crime for transgender people to use the bathroom that matches their gender identity — even inside privately owned businesses.

At least 19 states, including Idaho, already have laws barring transgender people from using bathrooms and changing rooms that align with their gender in schools and, in some cases, other public places. The LGBTQ+ advocacy organization Movement Advancement Project’s tracking of the laws shows that three other states — Florida, Kansas and Utah — have made it a criminal offense in some circumstances to violate the bathroom laws.

But none of the others apply as broadly to private businesses as the Idaho bill, which covers any “place of public accommodation,” meaning any business or facility that serves the public. The state’s Republican supermajority Senate is expected to vote on the bill this week, deciding whether to send it to Gov. Brad Little’s desk.

Felony bathroom use?

If the law is passed, anyone who enters a public facility like a bathroom or locker room designated for the opposite sex could be sentenced to a year in jail for a misdemeanor first offense, or up to five years in prison for a felony second offense. That’s a longer sentence than Idaho imposes for a first drunken driving conviction or for displaying offensive sexual material in public.

Protecting those spaces is a “matter of safety” and “decency,” said Republican Sen. Ben Toews told a Senate committee last week.

“Private spaces such as restrooms, changing areas and showers are sex-separated for a reason,” Toews said. “Individuals in these vulnerable settings have a reasonable expectation of privacy and security.”

The bill does carve out several exceptions. Athletic coaches, people responding to emergencies, people supervising inmates, custodians, and people helping children who need bathroom assistance get a pass. So does someone who is “in dire need” of a bathroom, if the bathroom they use is the only one that is reasonably available at the time.

Law enforcement groups say it’s a bad bill

Law enforcement groups including the Idaho Fraternal Order of Police and the Idaho Chiefs of Police Association oppose the bill, which they say would place officers in impossible positions, tasking them with visually determining someone’s biological sex or their level of “dire need.” The Idaho Sheriff’s Association asked lawmakers to require that people first ask any suspected violator to leave the bathroom before calling authorities, but lawmakers refused.

Heron Greenesmith, deputy policy director at Transgender Law Center, said the “dire need” exception could be especially hard to assert — and that the idea that a person can use a public restroom only in an emergency is dehumanizing.

“How does one prove that one was going to poop on the floor?” they asked.

Opponents fear vigilantism

John Bueno, a transgender student at the University of Idaho and a member of the student group Queer Inclusion Society, said the school has lots of single-use restrooms, which helps mitigate the logistical impacts of the bill. But the legislation would likely lead to more unwanted “profiling” of people, whether they are transgender or not, she said.

“It’s this cultural attitude of getting other Americans to habitually be narcing on one other and doing this sort of ‘transvestigating’ — that is what these kinds of bills promote,” Bueno said.

It all comes down to an effort to disenfranchise transgender people, Bueno said.

“This will increasingly deter queer individuals from Idaho universities and the state as a whole,” she said. “Which to be fair, is probably the primary purpose.”

Bill could impact employment opportunities

Nikson Matthews, a transgender man with a beard, told a panel of lawmakers last week that the bill would force him into the women’s restroom, where his masculine appearance puts him at risk of aggression from people who think he’s intruding.

“It creates a crime — but that is not based on conduct or harm,” Matthews said. “It is based on presence, and to justify that you have to accept that someone’s presence alone is traumatizing and harmful enough to criminalize.”

It could also make it difficult for transgender people to work, said Boise resident Laura Volgert.

“People might be able to hold it for an hour if they’re at a restaurant for lunch or at a grocery store,” she told lawmakers during a committee hearing. “They can’t be expected to hold it for a full eight-hour shift.”

That’s the point of these types of laws, said Greenesmith, to “make it untenable to go to the movies, to go to the doctor, to go to the bank.”

Proponents say that isn’t the case.

Proponents say safety and privacy is key

Suzanne Tabert, a Sandpoint resident, said the bill is about “maintaining, clear, enforceable boundaries” so that women and children can feel safe.

“If we lose the ability to protect based on biological sex, we lose our most effective tool for preventing harassment, voyeurism and other sex crimes before they occur,” she said.

She later continued, “This legislation is not about how an individual identifies, nor does it seek to target or malign the transgender community. Rather it upholds a universal standard of privacy.”

Bathrooms are not the only place where lawmakers have been placing restrictions on transgender people in the name of protecting women and girls. At least 25 states bar transgender women and girls from some women’s and girl’s sports competitions. And at least 27 states have laws restricting or banning gender-affirming care for minors.

Expanding all of these policies are priorities for President Donald Trump, too.

The only widely reported arrest of someone on charges of violating transgender bathroom restrictions was part of a protest in Florida last year.

___ Mulvihill reported from Haddonfield, New Jersey.