Bathroom Bills and Liberal Rights

Rach Cosker-Rowland (University of Leeds)

Abstract: On June 30th 2023 Florida’s House Bill 1521 came into effect. The bill requires that all trans people must use Florida public restrooms that align with the sex they were assigned at birth. This includes restrooms in all Florida airports, government buildings, schools and universities, city parks and beaches, and many Florida stadiums, rest stops, service stations, and conferences. The implications of this bill are that all trans women, for instance, must use the men’s bathroom in these places even if they have had sex reassignment surgery, have lived as a woman for decades, or since they were a child, are perceived to be a woman by everyone they meet, and/or have changed their birth certificate, their driving license, and their passports so that they acknowledge that they are female or a woman. Earlier in 2023, Kansas adopted a similar bathroom bill, North Carolina adopted a similar bill in 2016-2017, the UK government is considering adopting a similar law, and at least 21 other US states have proposed similar bathroom bills. There has been a lot of discussion and criticism of these bathroom bills but no sustained case for their injustice (or their justice) has been made. This paper argues that bathroom bills like Florida’s breach trans people’s rights in three ways. I argue that we have the following three rights: (1) rights to not be made to subject ourselves to significant risks of harm in order to participate in the (face-to-face) public or social world; (2) rights to not be unjustly discriminated against; (3) rights to have our interests considered equally in lawmaking and policymaking. I argue that a variety of more specific liberal and egalitarian rights and claims, made by a variety of liberals and egalitarians, imply (1-3) and (1-3) are very intuitive. And I argue that bathroom bills like Florida’s breach trans people’s rights to (1-3). I argue that bathroom bills force trans people to risk significant harm in order to participate in the public or social world, and refraining from adopting bathroom bills does not force anyone to incur any similar significant risk of harm to participate in the public or social world. I argue that the different philosophical theories of unjust discrimination that we have imply that bathroom bills are instances of unjust discrimination. And I argue that the adoption of bathroom bills does not involve equal consideration of trans people’s interests.