Archived: Gender Identity Nondiscrimination Laws in Public Accommodations: a Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms - Sexuality Research and Social Policy

1. See, e.g., EEOC v. Harris Funeral Homes, 2018, which affirmed the Sixth Circuit’s previous holdings that discrimination against a transgender individual is illegal sex discrimination under Title VII. In that case, a funeral home director was fired after she told her employer that she was transgender and planned to transition and begin wearing women’s work clothing on the job. The court also stated that religious beliefs and the Religious Freedom Restoration Act do not overrule the nondiscrimination requirements of Title VII. The last paragraph in this section discusses court cases that directly address sex discrimination as it applies to transgender individuals in the context of restroom access.

2. The Department of Housing and Urban Development has slowed support for this Equal Access Rule in the last year. Online training materials meant to support homeless shelters in the implementation of the rule were ordered removed from the department’s website (MacGillis, 2017).

3. Boston and Cambridge both had a GIPANDO prior to the 2011 state law. Neither locality is included in this analysis.

4. The initial design also planned to identify contiguous localities, treating boundary lines as regression discontinuities (Keele & Titiunik, 2015). However, since the occurrence of the crimes sought was rare, there was insufficient analytical power to utilize geographic variation to the full extent possible. Instead, the researchers opted for simpler analytical methods relying on data preprocessing and case selection to reduce analytical assumptions. However, the matched localities were limited to localities that had a shared boundary with at least one of the GIPANDO localities.

6. We conducted a second analysis using a matching procedure that included localities with clear GIPANDOs, localities with limited GIPANDOs, and matched localities that clearly did not have a GIPANDO. This second analysis found similar results to the analysis presented above. See Appendix for a description and results of this second analysis.

• American Civil Liberties Union. (2017). G.G. v. Gloucester County School Board. Retrieved March 16, 2018, from https://www.aclu.org/cases/gg-v-gloucester-county-school-board.

• Andersen, E. A. (2017). Transformative events in the LGBTQ rights movement. Indiana Journal of Law and Social Equality, 5(2), 441–475.

  Google Scholar 

• Badgett, M. V. L. (2001). Money, myths and change: Economic lives of lesbians and gay men. Chicago: University of Chicago Press.

  Google Scholar 

• Department of Housing and Urban Development (2016, September 20). HUD issues final rule to ensure equal access to housing and services regardless of gender identity. Retrieved May 25, 2017, from https://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2016/HUDNo_16-137

• Diamond, A., & Sekhon, J. S. (2013). Genetic matching for estimating causal effects: A general multivariate matching method for achieving balance in observational studies. The Review of Economics and Statistics, 95(3), 932–945.

  Article  Google Scholar 

• Dimick, J. B., & Ryan, A. M. (2014). Methods for evaluating changes in health care policy: The difference-in-differences approach. Journal of the American Medical Association, 312(22), 2401–2402.

  Article  Google Scholar 

• Equal Employment Opportunity Commission v. Harris Funeral Homes, 884 F.3d 560 (6th Cir. 2018)

• Fausset, R. (2017, March 29). Retrieved May 2, 2017, from https://www.nytimes.com/2017/03/29/us/north-carolina-lawmakers-reach-deal-to-repeal-so-called-bathroom-bill.html.

• Federal Bureau of Investigation. (2016). Crime in the United States by region, geographic division, and state, 2014–201. Retrieved February 2, 2017, from https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-4.

• Fejes, F. (2008). Gay rights and moral panic: The origins of America’s debate on homosexuality. New York: Palgrave Macmillan.

  Book  Google Scholar 

• Fernandez, M., & Smith, M. (2015, November 3). Retrieved May 2, 2017, from http://www.nytimes.com/2015/11/04/us/houston-voters-repeal-anti-bias-measure.html?_r=0.

• Fetner, T. (2008). How the religious right shaped lesbian and gay activism. Minneapolis: University of Minnesota Press.

  Google Scholar 

• Fogg Davis, H. (2017). Why the “transgender” bathroom controversy should make us rethink sex-segregated public bathrooms. Politics, Groups, and Identities, 1–18. https://doi.org/10.1080/21565503.2017.1338971.

• G. G. v. Gloucester County School Board, 137 S. Ct. 1239 (2017).

• G.G. v. Gloucester County School Board, 132 F. Supp. 3d 736, 750 (E.D. Va. 2015)

• Gender Identity Act, H.B. 3810, 187th Gen. Court (Mass. 2011).

• Hasenbush, A., Flores, A. R., Kastanis, A., Sears, B., & Gates, G. J. (2014). The LGBT divide: A data portrait of LGBT people in the Midwestern, Mountain & Southern states. The Williams Institute. Available from https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-divide-Dec-2014.pdf.

• Herek, G. M. (1991). Myths about sexual orientation: A lawyer’s guide to social science research. Law & Sexuality, 1(133), 133–172.

  Google Scholar 

• Herek, G. M. (2006). Legal recognition of same-sex relationships in the United States: A social science perspective. American Psychologist, 61(6), 607–621.

  Article  Google Scholar 

• Herman, J. L. (2013). Gendered restrooms and minority stress: The public regulation of gender and its impact on transgender people’s lives. Journal of Public Management and Social Policy, 65–80.

• Holden, D. (2018, February 12). Retrieved March 16, 2018, from https://www.buzzfeed.com/dominicholden/edu-dept-trans-student-bathrooms?utm_term=.mvmwQx3mb#.bwlqp5QlV.

• House Bill 2: House Floor Debate on H.B. 2, 2015–2016 Gen. Assemb., 2016 Extra Sess. 2 43 (2016) (testimony of Rodney W. Moore).

• House Bill 2: Senate Floor Session on H.B. 2, 2015–2016 Gen. Assemb., 2016 Extra Sess. 2 14–-16 (2016) (testimony of E. S. “Buck” Newton).

• Human Rights Bylaw, Amherst, Mass., Gen. Bylaws Art. 1 (2009).

• Human Rights Campaign. (2016). Cities and counties with non-discrimination ordinances that include gender identity. Retrieved May 24, 2017, from http://www.hrc.org/resources/cities-and-counties-with-non-discrimination-ordinances-that-include-gender.

• Imai, K., & Ratkovic, M. (2014). Covariate balancing propensity score. Journal of the Royal Statistical Society, 76(1), 243–263.

  Article  Google Scholar 

• Jackson, C. (2017, June 6). OCR instructions to the field re complaints involving transgender students [memorandum]. Washington, DC: Office for Civil Rights, Department of Education Retrieved July 11, 2017, from https://assets.documentcloud.org/documents/3866816/OCR-Instructions-to-the-Field-Re-Transgender.pdf

• Keele, L., & Titiunik, R. (2015). Geographic boundaries as regression discontinuities. Political Analysis, 23(1), 127–155.

  Article  Google Scholar 

• Kelly, D. (2016, March 28). Anchorage LGBT rights law opponents seek amendments through initiative. Alaska Dispatch News. Retrieved May 2, 2017, from https://www.adn.com/alaska-news/article/opponents-anchorage-equal-rights-law-seek-amendments/2016/03/29/.

• Kralik, J. (2017, April 12). “Bathroom bill” legislative tracking. Retrieved May 2, 2017, from http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx.

• Levy, B. L., & Levy, D. L. (2017). When love meets hate: The relationship between state policies on gay and lesbian rights and hate crime incidence. Social Science Research, 61, 142–159.

  Article  Google Scholar 

• Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015).

• MacGillis, A. (2017, August 22). Is anybody home at HUD? New York Magazine. Available from http://nymag.com/daily/intelligencer/2017/08/ben-carson-hud-secretary.html.

• Mass. Gen. Laws ch. 151B § 4 (1989).

• Mass. Gen. Laws. ch. 66, §10 (2016).

• Miller, P. R., Flores, A. R., Haider-Markel, D. P., Lewis, D. C., Tadlock, B. L., & Taylor, J. K. (2017). Transgender politics as body politics: Effects of disgust sensitivity and authoritarianism on transgender rights attitudes. Politics, Groups, and Identities, 5(1), 4–24.

  Article  Google Scholar 

• Minn. Stat. § 363A.11 (1993).

• Movement Advancement Project. (2017). Non-discrimination laws. Retrieved May 24, 2017, from http://www.lgbtmap.org/equality-maps/non_discrimination_laws.

• Nebraska v. U.S., No. 4:16-CV-03117, first amended complaint for declaratory and injunctive relief (U.S.D. Neb. Oct. 21, 2016).

• Nebraska v. U.S., No. 4:16-cv-03117-JMG-CRZ (U.S.D. Neb. Mar. 16, 2017).

• Nebraska v. U.S., No. 4:16CV3117 (U.S.D. Neb. Nov. 23, 2016).

• Occupational Safety and Health Administration. (2015). Best practices: A guide to restroom access for transgender workers. Retrieved May 25, 2017, from https://www.osha.gov/Publications/OSHA3795.pdf.

• Philipps, D. (2016, March 23). Retrieved May 25, 2017, from https://www.nytimes.com/2016/03/24/us/north-carolina-to-limit-bathroom-use-by-birth-gender.html.

• Radway, D. B., Town of Amherst, Mass. Director of Human Resources & Human Rights. (2015 April 23). [E-mail correspondence]. On file with the author.

• Raifman, J., Moscoe, E., Austin, S. B., & McConnell, M. (2017). Difference-in-differences analysis of the association between state same-sex marriage policies and adolescent suicide attempts. Journal of the American Medical Association Pediatrics, 171(4), 350–356.

  PubMed  Google Scholar 

• Schneider, A., & Ingram, H. (1993). Social construction of target population: Implications for politics and policy. American Political Science Review, 87(2), 334–347.

  Article  Google Scholar 

• Sekhon, J. S. (2011). Multivariate and propensity score matching software with automated balance optimization: The matching package for R. Journal of Statistical Software, 42(7), 1–52.

  Article  Google Scholar 

• Simmons, L. N., Chief of Staff, City of Northampton, Mass. Office of the Mayor. (2015, April 23–May 12). [E-mail correspondence]. On file with the author.

• Stone, A. L. (2012). Gay rights at the ballot box. Minneapolis: University of Minnesota Press.

  Book  Google Scholar 

• Texas v. U.S., 201 F. Supp. 3d 810 (N.D. Tex. Aug. 21, 2016).

• Texas v. U.S., No. 16-11534, defendants-aAppellants’ nNotice of wWithdrawal of mMotion for pPartial sStay pPending aAppeal and jJoint mMotion to cCancel oOral aArgument (2017).

• Transgender Anti-Discrimination Act, Mass. Gen. Laws ch. 272 §§ 92A, 98 (2016).

• Truman, J. L., & Langton, L. (2014). Criminal victimization, 2013. Retrieved from Bureau of Justice Statistics website May 2, 2017, http://www.bjs.gov/content/pub/pdf/cv13.pdf.

• U.S. Department of Justice & U.S. Department of Education. (2016). . Retrieved May 2, 2017, from http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

• U.S. Department of Justice & U.S. Department of Education. (2017). . Retrieved May 2, 2017, from https://www.justice.gov/crt/page/file/942021/download.

• Westbrook, L., & Schilt, K. (2014). Doing gender, determining gender: Transgender people, gender panics, and the maintenance of the sex/gender/sexuality system. Gender and Society, 28(1), 32–57.

  Article  Google Scholar 

• Worcester, Mass., Rev. Ordinances part 2, art. 10 §18(c)(1) (2014).

• Worcester, Mass., Rev. Ordinances Part 2, art. 10 §9(c) (2014).

• Young, C. A. (2016, October 11). Question to repeal transgender accommodations law qualifies for 2018 ballot. Retrieved May 2, 2017, from http://www.wbur.org/news/2016/10/11/ballot-question-transgender-accommodations-law.

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Authors and Affiliations

1. UCLA School of Law, The Williams Institute, Box 951476, Los Angeles, CA, 90095-1476, USA

   Amira Hasenbush, Andrew R. Flores & Jody L. Herman

2. Department of Public Policy & Political Science, Mills College, Oakland, CA, USA

   Andrew R. Flores

Corresponding author

Correspondence to Amira Hasenbush.

Ethical Approval

This article does not contain any studies with human participants or animals performed by any of the authors. An IRB exemption was obtained by the authors for use of de-identified criminal record data (IRB#15-001060).

Conflict of Interest

Amira Hasenbush declares that she has no conflict of interest. Andrew Flores declares that he has no conflict of interest. Jody Herman declares that she has no conflict of interest.

Appendix: Placebo Matched Pairs Analysis

The analysis was re-conducted using a second matching procedure. Localities with clear GIPANDOs were matched to localities that clearly did not have a GIPANDO, and localities with limited GIPANDOs (i.e., Brookline and Cambridge) were also matched to localities that clearly did not have a GIPANDO (see Table 2). The limited GIPANDOs offer a type of placebo comparison, where a policy was introduced but not clearly inclusive of the protections that are afforded in localities with clear GIPANDOs.

Table 4 provides a contingency table showing the average annual number of incidents, similar to the analysis in the report. For this analysis, there were three levels of treatment: a group of localities with clear GIPANDOs, a limited GIPANDO group that introduced a gender identity policy, but made exceptions or lacked clarity on restrooms, and the matched localities group without GIPANDOs. There were fewer overall incidents in the group with clear GIPANDOs when compared to the matched localities, but there were no apparent patterns of an increase in victimization in the timeframe after passage. These differences were also not significantly different from one another. A Fisher’s exact test indicated that there was no significant relationship between GIPANDOs and restroom crimes. An estimate of the before-and-after changes between the localities with clear GIPANDOs and their matched pairs of the average proportion of monthly incidents in locations also showed no statistically significant difference. There does not appear to be a relationship between policy introduction and restroom incidents. Again, here, even if there were many more localities, a statistical power analysis found that it is unlikely that there would be a statistically significant difference between GIPANDO localities and matched localities. If there was a sample with 50 matched pairs with observed effect size at 90% power, then a one-tailed alpha would be 0.85, suggesting that the null hypothesis of no difference would also fail to be rejected with a greater number of matched pairs.

Similar to before, we assessed trends in crime rates between these localities. This way, it could be assessed whether trends in crime rates increased in clear GIPANDO localities and limited GIPANDO localities, as compared to their matched localities. The figure limits the timeframe to 12 months before and 12 months after the passage of the local GIPANDOs. A 12-month window was chosen because some localities in this analysis were asked to provide incidents within a two-year timeframe, so we restrict the plot to the timeframe common to all localities.

In Fig. 3, the model included differences between localities with clear enforceable GIPANDOs that applied to restrooms and their matched localities (black line), and differences between the limited GIPANDOs with unclear enforceability or restroom exceptions and their matched localities (gray line). The local regressions showed a lot of overlap between and across these three groups. As opposed to the analysis in the body of the report, which showed slightly lower crime rates in the GIPANDO localities as compared to their matched pairs after policy introduction, there was no statistically significant difference in the average monthly proportion of criminal incidents in restrooms both over time and across contexts.

Differences in the average monthly rate of criminal incidents in public restrooms, locker rooms and changing rooms among localities with clear GIPANDOs and limited GIPANDOs compared to matched localities without GIPANDOs. Notes: 90% confidence intervals represented by dashed lines; negative values show lower rates of victimizations in GIPANDO localities compared to matched localities before, during, and after policy introduction.

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These results indicate that changes in the average rate of criminal incidents are not related to the passage of GIPANDOs. The limited GIPANDOs provide another source of comparison, and these additional comparisons indicate that clear GIPANDOs are not uniquely related to increases in average rates of criminal incidents.