Bathroom Laws As Status Crimes

Authors

Stephen Rushin, Loyola University School of Law - New Orleans
Jenny E. Carroll, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

10-2017

Journal Title

Fordham Law Review

ISSN

0015-704X

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.

First Page

1

Last Page

46

Num Pages

46

Volume Number

86

Issue Number

1

Publisher

Fordham Law School

Recommended Citation

Stephen Rushin & Jenny E. Carroll, Bathroom Laws As Status Crimes, 86 Fordham L. Rev. 1 (2017).
Available at: https://scholarship.law.tamu.edu/facscholar/2066

File Type

PDF