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Bathroom Laws As Status Crimes

48 Pages Posted: 27 Jul 2017 Last revised: 28 Sep 2017

Stephen Rushin

Loyola University Chicago Law

Jenny E. Carroll

University of Alabama - School of Law

Date Written: July 24, 2017

Abstract

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals.

By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize them. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would transform bathroom use by trans individuals into an unlawful trespass. The existing literature suggests that the criminal justice system is unprepared to handle this newfound responsibility.

This Article concludes that, by effectively criminalizing noncriminal conduct so inextricably linked to the status of being trans, some proposed bathroom laws may violate the Eighth Amendment’s bar on cruel and unusual punishment.

Keywords: bathroom laws, trans, transgender, LGBTQ, criminal law, criminal procedure, policing

JEL Classification: K00, K1, K14, K3, K30, K4, K40

Suggested Citation

Rushin, Stephen and Carroll, Jenny E., Bathroom Laws As Status Crimes (July 24, 2017). Fordham Law Review, Vol. 86, No. 1, 2017; U of Alabama Legal Studies Research Paper No. 3007770. Available at SSRN: https://ssrn.com/abstract=3007770

Stephen Rushin (Contact Author)

Loyola University Chicago Law ( email )

IL

Jenny Elizabeth Carroll

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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