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Transgender bathroom bills are back, gaining traction after past boycotts

Bonneville Elementary School parents and students gather during a block party supporting trans and non binary students and staff Monday, April 29, 2024, in Salt Lake City.
Rick Bowmer
/
AP
Bonneville Elementary School parents and students gather during a block party supporting trans and non binary students and staff Monday, April 29, 2024, in Salt Lake City.

In 2016, North Carolina passed the country's first bathroom bill — a law saying people have to use the bathroom matching the sex on their birth certificate.

There was huge pushback, boycotts of the entire state. The political fallout led to the downfall of Republican Gov. Pat McCrory.

Bathroom bills have reemerged in recent years, passing in eleven Republican-led states, from Florida to Utah. Mississippi lawmakers sent a bathroom bill to the governor's desk last week. But the high-profile boycotts, rollbacks of company expansions and canceled concerts haven't followed suit this time.

So what happened?

The path from 2016 to now involves political strategizing, legislative polling, and a clear learning from past defeats. And women's sports.

2016: "An unmitigated disaster"

The national reaction to North Carolina's 2016 bathroom bill, House Bill 2, was without precedent.

PayPal canceled a planned expansion that would have brought 400 jobs and the NCAApulled its tournaments from the state. Performers from Bruce Springsteen to Cirque Du Soleil canceled performances. The AP estimated the cost of lost business to the state would reach $3.76 billion over the next twelve years.

Erin Reed, a journalist and activist who tracks LGBTQ policy, described it as "an unmitigated disaster for the Republican Party in the state."

By 2017, the bill was rolled back.

"And so, following that," explains Erin Reed, "there was a good four year period where anti-trans legislation sort of took the back seat. They kind of licked their wounds and they stepped back. And they started planning."

At first, Republicans across the country tried to distance themselves from the issue. In 2016, then-Republican presidential candidate Donald Trump criticized the North Carolina bill during a TODAY Show town hall.

A year later, he rescinded guidance that offered legal protections to transgender students who want to use bathrooms that conform with their gender identity.

"There have been very few complaints the way it is. People go, they use the bathroom that they feel is appropriate," he said at the time.

Florida Republican Gov. Ron DeSantis said at a Florida Family Council GOP gubernatorial forum in 2018 that "Getting into the bathroom wars — I don't think that's a good use of our time."

But five years later, DeSantis signed a bill making it a crime for transgender people to use public restrooms that do not correspond with their sex assigned at birth.

Looking beyond North Carolina, and beyond bathroom bills

Terry Schilling with the American Principles Project, a conservative think tank, helped bring transgender bathroom bills back to the political forefront. He says after 2016, he met with North Carolina Gov. McCrory to talk about what happened and started strategizing.

Schilling says their main focus was on which states would, for one reason or another, not be vulnerable to economic boycotts. And they decided on two:

"They really can't boycott Texas. It's just too big, and it's too much of an economic powerhouse," explains Schilling. "And they certainly can't boycott Florida, the home state of Walt Disney World."

And they also looked beyond bathroom bills. Schilling says his group considered legislation keeping gender identity out of civil rights laws, or trans women out of domestic violence shelters. But nothing really clicked. Until a few years ago.

"The women's sports issue was the first thing that really took off," says Schilling, "because it had that magic formula of having an incredible amount of public support amongst the American people, but also politicians were willing to run on it and campaign on it."

And they did. By 2021, 10 states passed laws barring transgender athletes from participating in women's sports. That increased to half the states in the country in 2024.

Schilling says trans sports bills opened the door for the legislation that followed. Policies restricting gender-affirming care for kids and limiting how gender is discussed in schools. And a return of bathroom bills.

"I don't think you could have done it by just focusing on the bathrooms," says Schilling. "I think it would be dead right now without the women's sports issue."

The current landscape

With LGBTQ restrictions in about half the country, some observers argue the sorts of boycotts that took place in 2016 aren't feasible. California last year repealed its travel ban on state business travel to states with anti-LGBTQ policies.

"I do believe that now is a totally different time, because it's now like a threshold issue for being a serious Republican," says American Principles Project's Terry Schilling.

In January, Utah became the eleventh state to implement a bathroom bill, requiring people to use bathrooms in schools and government-owned buildings that match their sex assigned at birth.

Lawmakers this year introduced bathroom bills in several other Republican-led states, like Arizona, Georgia, Idaho Iowa and West Virginia.

But journalist Erin Reed wonders whether proponents of these bills will see the same support in the general electorate when they face reelection.

"I don't think that it's going to win them elections. Now, where it may win them is in primaries," Reed says. "This is not the first LGBTQ moral panic, and it won't be the last...and I think that right now we are in that period where people are getting hurt."

The Biden administration is attempting to block some bathroom policies, saying they violate Title IX's nondiscrimination rule. While Republicans in several states are challenging the move in court.

Copyright 2024 NPR

Deena Prichep