An Act relating to facility requirements based on sex; providing requirements for exclusive use of restrooms, changing rooms, and locker rooms based on biological sex in public buildings, schools, and other state-owned properties.
April 19, 2023 (FL House), May 3, 2023 (FL Senate)
Summary
Mandates use of restrooms and changing facilities in public spaces based on sex assigned at birth.
Status: In force
The Facility Requirements Based on Sex Act, also known as Committee Substitute for House Bill 1521 (CS/HB 1521), is a 2023 Floridaanti-transbathroom law which mandates that individuals must use restrooms, locker rooms, and changing facilities that correspond to their sex assigned at birth in some public, private and state-licensed facilities. It is one of two states (Utah) to make it a misdemeanor, in certain circumstances, for transgender people to use bathrooms or facilities consistent with their gender identity. It is the most populous state in the United States with a bathroom law.[1] The law has generated significant controversy and legal challenges.
History
Prior to July 1, 2023, transgender people in Florida were never mandated to use restrooms, locker rooms, and changing facilities that correspond to their sex assigned at birth in public, private or state-licensed buildings. In 2015, the Kentucky Senate passed a bathroom bill, which would have required people to use bathrooms corresponding to their biological sex in public schools and public facilities, but died in the Kentucky House of Representatives in committee without a vote.
In 2016, North Carolina enacted the Public Facilities Privacy & Security Act, which required transgender individuals in public buildings to use bathrooms and changing facilities that correspond to their biological sex as stated on their birth certificates, rather than their gender identity.There was no penalty or enforcement mechanisms for violating the requirement in the Public Facilities Privacy & Security Act. On March 30, 2017, the Public Facilities Privacy & Security Act was repealed following public backlash. In 2017, the Texas Senate passed a bathroom bill, which would restrict bathroom use based on biological sex in both public schools and government buildings, but died in the Texas House of Representatives in committee without a vote.
In 2019, the South Dakota Legislature passed a bathroom bill, which included provisions related to bathroom access based on biological sex in certain public facilities, but it was vetoed by Governor Dennis Daugaard. From 2021 to 2022, bathroom laws for public schools were enacted in Tennessee, Alabama and Oklahoma. Prior to March 7, 2023, state legislatures in Arkansas and Tennessee, along with the Idaho House of Representatives, the Kentucky Senate and the Oklahoma Senate passed bathroom bill for public schools, while the North Dakota House of Representatives passed a bathroom bill which requires government entities to restrict restroom access based on biological sex.
Legislative history
On March 7, 2023, House Bill 1521 (HB 1521), a bill which would require public facilities, including restrooms and changing facilities, to be designated for exclusive use based on a person's sex at birth, with certain exceptions, and impose penalties for violations, was introduced in the Florida House of Representatives (FL House) by Representative Rachel Plakon. On March 29, 2023, House Regulatory Reform & Economic Development Subcommittee adopted, by a party line vote of 11–3, Amendment 808359, which clarified restroom and changing facility requirements, ensuring that facilities were designated based on biological sex with specific exceptions for unisex facilities, caregiving, and emergency situations. On April 19, 2023, the FL House passed, by a party line vote of 80–37, HB 1521. On May 2, 2023, Amendment 730228, which introduced key changes to HB 1521, was passed by a voice vote in the Florida Senate (FL Senate).
Amendment 730228 allowed for the creation of unisex restrooms and changing facilities as alternatives to sex-designated facilities, provided they meet specific privacy standards. Additionally, it clarified exceptions for entering facilities designated for the opposite sex, including caregiving, law enforcement, emergency situations, and maintenance activities. The amendment also introduced a requirement for covered entities to establish disciplinary procedures for violations of the act, including measures for staff and inmates or students who refuse to comply with facility-use rules.
Furthermore, Amendment 730228 authorized the Florida Attorney General to bring civil enforcement actions against entities failing to comply, with fines of up to $10,000 for willful violations. Lastly, a severability clause was included to ensure the act's provisions remain enforceable even if certain sections are found invalid. On May 3, 2023, at 2:23 PM ET, the FL Senate passed, by a party line vote, excluding three Republicans, of 26–12, HB 1521. That same day, at 3:56 PM ET, the Florida House concurred with Amendment 730228 and passed, by a party line vote of 80–36, HB 1521. On May 17, 2023, Governor Ron DeSantis signed HB 1521 into law, which took effect on July 1, 2023.
Provisions
The following facility restrooms, locker rooms and changing facilities are covered by the Facility Requirements Based on Sex Act:
Private facilities
Approximately 23.5% are private facilities covered. The Facility Requirements Based on Sex Act is unique in that is the only state with a bathroom law that explicitly applies to some private facilities.
State government buildings with restrooms or changing facilities
Universities (under preliminary injunction since September 11, 2023)
State-licensed facilities
Approximately 64.7% are state-licensed facilities covered. The Facility Requirements Based on Sex Act is unique in that is the only state with a bathroom law that explicitly applies to some state-licensed facilities.
On August 23, 2023, the Florida Board of Education passed the Designation of Restrooms and Changing Facilities in the Florida College System regulation, which took effect immediately, requiring all state colleges in the Florida College System to designate facilities based on biological sex at birth in compliance with the Facility Requirements Based on Sex Act.[2] On October 18, 2023, the Florida Board of Education passed Rule 6E-7.001: Designation of Restrooms and Changing Facilities in Private Postsecondary Educational Facilities regulation, which, effective immediately, applied these restrictions of the Facility Requirements Based on Sex Act to private college-run student housing, private colleges and private universities.[3]
On November 9, 2023, the Florida Board of Governors passed Public Notice of Approval of Adoption of Board of Governors Regulation 14.010, Designation of Restrooms and Changing Facilities, by a 15–2 party line vote, the Designation of Restrooms and Changing Facilities for Males and Females regulation, which, effective immediately, extended the enforcement of the act to cover all state universities. Private college-run student housing, private colleges, private universities and state universities were required to submit documentation proving compliance by April 1, 2024.[4][5]
Penalties
The following penalties apply to individuals and institutions that fail to comply with the Facility Requirements Based on Sex Act's requirements:
If an individual willingly enters a restroom or changing facility designated for the opposite sex and refuse to leave when asked commit trespass in a structure or conveyance, which is classified as a second-degree misdemeanor, which has a maximum penalty of up to 60 days in jail and a fine of up to $500.
Educational institutions, correctional facilities, detention centers, and public agencies are required to establish internal disciplinary procedures for staff, students, or inmates who violate the bill's provisions. Penalties for violating those procedures may include suspension, termination, or other appropriate disciplinary measures according to the institution's policies.
Covered entities that fail to comply with the law may face civil actions initiated by the Florida Attorney General. The Attorney General can seek injunctive relief and impose fines of up to $10,000 per violation for willful non-compliance.
Exceptions
The following exceptions are listed in the Facility Requirements Based on Sex Act:
Assisting someone who needs help due to age, disability, or medical reasons.
Providing medical aid or emergency care.
Responding to an emergency.
For cleaning, maintenance, or inspection when the facility is not in use.
If the assigned restroom is broken or under repair and the opposite one is empty.
Excludes students and school staff from the trespassing rule.
Excludes juveniles and staff from the trespassing rule in juvenile facilities.
Excludes public employees from the trespassing rule in public buildings.
Excludes individuals receiving treatment for intersex conditions (disorders of sexual development) under a doctor's care.
Enforcement
Currently there have been no publicly reported arrests, disciplinary measures or prosecutions under the Facility Requirements Based on Sex Act.
Lawsuits
The Facility Requirements Based on Sex Act, enacted in Florida on July 1, 2023, has been the subject of several lawsuits challenging its constitutionality. Opponents argue that the law violates the Equal Protection Clause, Title IX, and various federal civil rights statutes by discriminating against transgender individuals.
Doe v. Florida
In August 2023, Doe v. Florida was filed by a transgender student, represented by the American Civil Liberties Union (ACLU), challenging the enforcement of the Facility Requirements Based on Sex Act in public schools. The lawsuit claimed that the law, which requires individuals to use restrooms and locker rooms corresponding to their sex assigned at birth, violated the Equal Protection Clause of the Fourteenth Amendment.[6] The plaintiff argued that the law subjected transgender students to unfair treatment and significant psychological harm.
In September 2023, the U.S. District Court for the Northern District of Florida issued a preliminary injunction, temporarily halting the enforcement of the law in public schools while the case was ongoing.[7]
In February 2024, the U.S. Department of Justice intervened in Doe v. Florida, filing a statement of interest arguing that the Facility Requirements Based on Sex Act conflicted with federal civil rights protections under Title IX and the Equal Protection Clause.[8] The DOJ contended that the law was discriminatory and harmful to transgender individuals, particularly in educational settings.
In response, the Florida state government defended the law as a necessary measure to protect privacy and safety in public facilities. Florida officials also argued that the law fell under the state's purview under the Tenth Amendment.[9] The legal battles surrounding the law are expected to continue, with potential review by the Eleventh Circuit Court of Appeals.
Smith v. Orange County Public Schools
In October 2023, Lambda Legal filed Smith v. Orange County Public Schools on behalf of several transgender students and their families. The plaintiffs claimed that the law violated Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in federally funded schools. They argued that the law unfairly targeted transgender students and created an unsafe school environment.[10]
In November 2023, the U.S. District Court for the Middle District of Florida allowed the case to proceed, ruling that the plaintiffs had shown enough evidence of potential Title IX violations to warrant a trial.[11]
ACLU v. Florida
In December 2023, the American Civil Liberties Union (ACLU) filed a class-action lawsuit, ACLU v. Florida, representing multiple transgender individuals who argued that the Facility Requirements Based on Sex Act violated both the Due Process and Equal Protection Clauses of the U.S. Constitution. The plaintiffs asserted that the law discriminated against transgender individuals by forcing them to use facilities that did not align with their gender identity.[12]
In January 2024, the U.S. District Court for the Northern District of Florida issued a mixed ruling, striking down portions of the law related to public schools while upholding its application in other public facilities. The ACLU immediately announced plans to appeal the decision.[13]
Criticism
Unlike other bathroom laws, the Facility Requirements Based on Sex Act includes no exceptions for transgender people who have undergo sex reassignment surgery to change their sex and altered their birth certificates with their gender identity to use the restroom, locker room, or changing facility that is consistent with their gender identity.
