Republicans Keep Passing Bathroom Bans. They Can’t Enforce Them.

Every time a bathroom bill is passed, the same question is asked: how do bathroom bans even work? The answer is that they don't.

Last week, Texas became the latest state to pass a so-called ‘bathroom bill.’ These kinds of laws—which attempt to segregate bathrooms by ‘biological sex’—have become an obsession among Republican lawmakers ever since the now-repealed 2016 law HB 2 was passed in North Carolina. While proponents of these bathroom bans like to claim that they protect women’s private spaces, their solution doesn’t seem to be a very good one: despite the fact that 19 states currently have some form of bathroom-restricting law in effect, instances of them being enforced are exceedingly rare.

So, if they can’t be enforced, why do Republicans keep passing them? And what does enforcing a bathroom even look like to begin with?

Toothless At Their Core

While many anti-trans laws passed in recent years by Republican states—targeting things like gender-affirming care, sports, and IDs—have been nearly identical in their language, scope, and penalties stipulated, bathroom bills have not enjoyed the same uniformity. Some only target public K–12 schools; others apply to that plus colleges and domestic violence shelters. But unfortunately, a growing number of states seem to be going ‘all in,’ with 6 states currently having restrictions spanning all government buildings in effect. Here’s a map of all current bathroom laws:

For sources, tables, and maps for other issues, head to Transitics’ CATPALM page.

Additionally, the way these statutes are supposed to be enforced also varies. Some laws, like Kansas’ and Alabama’s (excluding a separate one for public schools), are entirely voluntary, while most others authorise a penalty for the buildings that allowed the violation to take place. One law, Georgia’s SB 1, is almost entirely inconsequential, as it only applies during sporting events at public schools or colleges. However, those passed by Florida, Mississippi, and Utah, which apply to all government-owned private spaces, aren’t so friendly. Florida outright makes it a crime to enter a restroom or changing room of the ‘opposite sex.’ Meanwhile, Mississippi makes it a misdemeanor for a member of the ‘opposite sex’ to refuse to leave a private space after being told to do so by an employee, and Utah makes it a crime to enter a dressing room of the ‘opposite sex.’

Yet, despite these provisions, these laws are seldom enforced. Even Florida, which has by far the harshest law, showed little interest in prosecuting Marcy Rheintgen after she, and very publicly I might add, violated the bathroom bill. And in the end, this resulted in the charges being dismissed. That’s because of one fundamental truth about the way bathroom bans work: the broader they get, the more their toothlessness starts to show. And they’re made to be that way.

The narrowest ones—those that apply only to public schools and/or colleges—are relatively straightforward, as schools have access to students’ legal documents and can therefore know if a kid is violating the ban. Even then, that comes with exceptions, because should a student have moved to the school after updating all their legal documents (and given that nobody at the school knows for sure that they are trans), they would have no issues.

But when it comes to laws restricting restrooms at airports, government offices, and other public buildings, enforcement is basically impossible. Someone would have to complain, and for that complaint to be successful, they’d need to be able to prove the person they think is trans is actually trans AND that the building was aware and let them enter the restroom anyway. In other words, the only way these laws can be potentially enforceable in this context is if physical inspections become mandatory for every person going into a bathroom. And I think it’s safe to say that won’t happen.

Just Political Theatre?

Taking all this into account, we can start to see why, despite the abundance of laws authorising penalties for noncompliance, no building subject to a bathroom bill is known to have ever been held liable for violating it. But Republican lawmakers aren’t stupid (well, with some exceptions). They have access to enough information to know these laws can’t really be enforced, and yet, they keep passing them.

But really, anti-trans laws can be put into 2 categories: there are those that are passed under a pretext of protecting something, be it kids, women, sports, or something else, and then there are those that are passed quietly. The first kind are often a political spectacle and have ample media coverage. Sometimes they even have an absurd title like Kansas’ ‘Women’s Bill of Rights’ or are signed with a backdrop of kids, athletes, or women celebrating the bill protecting them. Those are the bills that play to the base, the ones that Republicans will use for political ads and voting record touting.

And then, there are the bills that are passed without the big scene. In this category are bills concerning birth certificates, IDs, Medicaid coverage, transgender prisoner treatment, and a few other things. For these, there’s no ‘protecting,’ boasting ads, or over-the-top signing ceremony; there’s just naked hate. And believe it or not, that’s what makes these bills less common. To advocate for and/or do something hateful that has no perceived political benefits takes a special kind of petty, one that can only be found in a few politicians, among them Donald Trump, RFK Jr., Ken Paxton, Jonathan Skrmetti, Mike Braun, and Ron DeSantis.

However, when it comes to bathroom bans, Republicans like Greg Abbott, Sarah Huckabee Sanders, and Tate Reeves get their spectacle. They tell their base they’re doing something to protect everyone from the boogeyman they’ve put so much effort into creating. They tell the loudest transphobes that they can harass trans people in public. And despite the fact that the laws can’t be enforced, they still tell us, as a community, that we aren’t welcome in the states that pass them.

But know this: bathroom bans don’t change anything. We were here before them, and we’ll be here long after they’re gone. And with the exception of Florida—you’d really have to go out of your way to violate the bans in Mississippi and Utah—these laws don't even threaten to do anything either. If they’re not checking to see if we comply in advance, why on earth should we?