The nationwide crackdown on transgender and non-binary people’s access to public accommodations is progressing through Florida’s Legislature. Two companion bills, HB 1521 and SB 1674, may be broader than they first appear to be.
Kara Gross, legislative director and senior policy counsel for the American Civil Liberties Union of Florida, said the bills don’t just attempt to control bathroom use by transgender people but represent a much more “broad and vague” ban on gender-inclusive restrooms and changing facilities in private businesses, health care facilities, schools, public shelters, and jails.
Gross argues that such attempts to regulate private businesses and domestic violence shelters separate it from similar bans across the country — which, she said, makes this much more than a simple “bathroom ban.”
“The majority party likes to talk a lot about being pro-business, but this is government overreach into private businesses and, obviously, into the lives and livelihood of transgender Floridians,” she said.
Bans like this have been challenged in other states, Gross said, predicting this could spin off pricy litigation for the state and “waste taxpayer resources.”
However, she also argues the most costly element of bills like these is the threat they pose to transgender people’s fundamental human rights and safety.
Bathroom confrontations
The bills don’t specify any protocol to follow when either challenging someone or being challenged by another individual in these spaces. They do open the door to bothering anyone in a bathroom based on assumptions about their gender.
“There’s no good way for businesses to enforce these laws without invading everyone’s privacy,” Gross said. “Lots of people may present in ways that might not be clear to someone else but, under this bill, another can challenge that person if they don’t present female enough or man enough — and what is that person to do? How do you prove your gender?”
The ACLU of Florida denounced the legislation following a favorable vote on it during a Commerce Committee meeting Monday.
Kirk Bailey, political director for the ACLU, said the bill constitutes “state-sanctioned discrimination” and makes it impossible for transgender people to live their daily lives.
“In addition to harming transgender and nonbinary adults, youth, and visitors throughout the state, this bill will harm and embarrass many other individuals who will be harassed because of their perceived gender presentation,” he said in a Monday press release.
“No one should have their privacy invaded for simply going about their daily activities,” he added.
What’s next?
The House bill heads to the floor next and the Senate’s is due for a vote in the Fiscal Policy Committee, although neither forum had set a date as of Friday.
Rep. Rachel Plakon, a Republican representing part of Seminole County, said the House bill’s goal is to provide “common decency standards in private spaces,” during the Monday hearing.
“There have been dozens of cases across the U.S. and overseas where people have been assaulted in the restroom,” she said, citing what she called her own research. “And most of the time, it is a heterosexual male assaulting a female in the women’s restroom.”
If that’s so, the legislative analysis for the House bill makes no mention of it.
A 2017 CNN investigation concluded that transgender people were more likely to be the victims in such cases. The news organization cited a 2013 survey by UCLA’s Williams Institute finding that 70% of transgender respondents “reported being denied access, verbally harassed, or physically assaulted in public restrooms.”
Rep. Kristen Arrington, a Democrat representing part of Osceola County, asked the popular question of what would happen to a transgender man using the women’s restroom.
“The series of events would be that someone would have to ask the person to leave if they felt that it was not a female in the women’s restroom, for example,” she said. “If the person refused to leave, then the person that asked them to leave could call a manager — depending on what the facility is — an owner, or could call law enforcement.”
“Likely nothing,” she said with a smile, would happen to an individual who uses the restroom and immediately leaves.
‘Officer discretion’
Plakon said the bill doesn’t require businesses and other covered entities to “police” a situation by holding an individual until law enforcement arrives. If and once law enforcement arrives, it’s “up to officer discretion” to apply their “de-escalation training,” and assess the situation, she said. An entity that “willfully violates” the bill’s provisions would be subject to “civil action” brought by the Attorney General.
Senate bill sponsor Erin Grall, a Republican representing Southeastern Florida counties, said she anticipates amendments to the proposal before it’s heard again.
As currently filed, both bills lack clear language outlining how the measure will be enforced.
Rep. Christopher Benjamin, a Democrat representing Miami-Dade County, said the measure is “almost worthless” because, as written, it can’t be policed, investigated, or prosecuted.
According to the ACLU’s Bailey, a legal challenge is likely and has a chance for success.
“Nondiscrimination laws have been successfully implemented in over 400 cities and 21 states to protect LGBTQ+ individuals from discrimination and allow transgender people to use restrooms that align with their gender identity,” he said.
This article originally appeared in florida phoenix