A new Idaho law that takes effect on July 1 makes it a crime for transgender people to use public bathrooms — including those at private businesses — that align with their gender identity. A first offense would be charged as a misdemeanor, and a second offense within five years would be treated as a felony with up to a five-year prison sentence.
Employment lawyers and human resource professionals at a Boise forum on Tuesday said there are still many unknowns regarding how the law will affect the public and businesses.
While other states have passed similar bans, Idaho is the first to affect private businesses. That’s because it includes “places of public accommodation,” which includes almost any business that offers some type of good or service to the public.
“I think there's a whole lot of employers who have no idea this could impact them,” said Pamela Howland, the founder of Idaho Employment Lawyers in Boise.
Though the law pertains to individuals and not businesses, lawyers said doing nothing is also a risk.
Cody Earl, an attorney specializing in labor law and deputy general counsel at St. Luke’s Medical Center in Boise, said the law could lead to an increase in hostile work environment or intimidation claims if an employee or person at a business makes a police report.
He said businesses should look at how they plan to handle potential complaints.
“Do you, as an employer, or place of public accommodation, just wanna open the door and let law enforcement come in and enforce this law?” Earl said.
Looking ahead
Panelists suggested business owners may want to consider what policies and procedures they can implement ahead of time to foster a safe and respectful work environment.
“Do you want employees recording other coworkers headed into the bathroom, taking photos of that?” Howland said. “We don't know what's gonna happen, but I could envision a scenario where someone could do that.”
Megan Egbert, an Idaho legislator and employment lawyer, encouraged business owners to reach out to their local law enforcement to find out how the law is being interpreted.
She noted that some law enforcement personnel testified against the bill because there is no clear way to identify if someone’s sex assigned at birth matches the facility they’re using.
“ I will tell you that the bill sponsor said … (law enforcement) would ask for ID,” Egbert said. “I think there's a lot of challenges with that method. If I was a person accused of being in the wrong space … I probably wouldn't stick around for law enforcement to get there.”
For some businesses, especially smaller ones that already have single-occupancy restrooms, the simplest answer could be a change to gender-neutral signage.
However, larger businesses and those that only have gendered facilities face a more complicated problem.
“ If we changed everything to unisex, that could diminish the safety that some people feel today,” said Jennifer Jones Hooft, a human resource specialist. “You may have the same number of people complaining that, ‘Now I no longer feel safe.’"
Beyond that problem, Howland said, compliance with employment and anti-discrimination laws also needs to be considered.
“OSHA, as it turns out, actually has some guidance out there that says, ‘Nope, we want an employer of a certain size to provide men's and women's separate, designated bathrooms,’” she said.
Panelists cautioned the public about making major renovations, as more legislation is expected to be introduced next year that could further complicate the matter.
“ I don't say this flippantly or because I happen to have a client with a porta-potty business,” Jones Hooft said. “But if you really wanna be prepared, that could be a temporary option until you see where the chips fall.”
Many parts of the law remain in a legal gray area, panelists said, including whether certain types of facilities are included under it, whether the law conflicts with ADA accessibility requirements, and what appears to be a conflict with previous federal anti-discrimination rulings.
The District Court of Idaho will hear oral arguments on Friday for a lawsuit filed by six transgender Idahoans who argue the law violates their constitutional rights to due process, equal protection and privacy, according to the American Civil Liberties Union.
