Robin Fretwell Wilson (University of Illinois College of Law) has posted The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns (Lewis & Clark Law Review, Vol. 20, No. 4, 2017) on SSRN. Here is the abstract:
Although Americans overwhelmingly believe that LGBT people should not be turned away from a business open to the public just for being gay or transgender, no state has enacted protections for all LGBT people against being told that “we don’t serve people like you.”
This Article traces the impasse over new state legislation banning discrimination on the basis of sexual orientation and gender identity (“SOGI”) to one critical assertion: that ensuring LGBT people “equal enjoyment of facilities” means that men will now be allowed “in women’s bathrooms,” threatening the safety of others. Although the claim that SOGI nondiscrimination laws expose the public to victimization by sexual predators reaches back to 2008, it reached a crescendo in 2015 when opponents defeated Houston’s Equal Rights Ordinance by tagging it as a “bathroom bill, and 2016 when North Carolina legislators wiped aside a Charlotte ordinance that was silent about facility access, requiring in- stead that businesses defined as “public accommodations” must require patrons to use the bathroom matching the sex of their birth.”
Despite the punishing treatment of North Carolina after H.B. 2, the 2017 legislative year opened with a raft of bills designed to force individuals to use the bathroom matching the sex of their birth. While proponents of these bills claim that extending nondiscrimination protections to the LGBT community imperils public safety, this Article argues that this claim is not predicated on evidence about—or risks from—trans people. Sex offenders are the source of this threat, as affidavits filed in support of North Carolina’s defense of H.B. 2 acknowledge.
Notably, the bathroom narrative has served to obscure pressing religious liberty issues, such as how nondiscrimination laws should interact with—or give way to—religious convictions on questions of sexuality in religious spaces, like the nature of gender itself. This Article concludes that SOGI nondiscrimination laws are necessary to advance human dignity and to secure “a level playing field so that all persons can enjoy the fruits of their labor.” Policymakers should therefore reject the case against SOGI nondiscrimination protections based on public safety. It is, however, incumbent on lawmakers to ensure that civil laws governing questions of sexuality do not inadvertently spill over to houses of worship and other places where religious believers should have discretion to decide such matters for their communities. This Article further concludes that it is possible to authorize businesses to open restrooms to LGBT persons in a way that ensures the safety, dignity, and privacy of all their patrons while respecting the religious convictions of people of faith.