Bathroom politics amp up LGBT rights debate Should transgender people be allowed to use bathroom facilities of their preferred sex — or of their birth-assigned sex?

Kit Malone mentally mapped bathrooms wherever she went, keeping track of single-occupancy facilities where it would be safe for her to go.

As a transgender woman, she had reached a point in her transition from male to female where she started receiving funny looks and under-the-breath comments in men’s restrooms. Even when she wore just jeans and a T-shirt, her facial appearance and hairstyle didn't fit in anymore. She felt unsafe, worried about men attacking her for looking too feminine.

Still, she was nervous about using a women’s restroom. Nervous that someone would see her as a threat. Nervous that she would make someone uncomfortable. Nervous that someone would call her out.

But this time, she just couldn’t hold it anymore.

She was in a mall with no single-occupancy restroom in sight. So she steeled herself, trying to act confident but not look creepy, and went into the women’s restroom.

She walked straight into a stall. And then she sat there until she could be sure security hadn’t been called on her before she felt comfortable enough to leave.

“It wasn’t a relief at all,” she said. “It felt like a chore that I had to do and get over.”

What’s usually private business has become a matter of public debate. In the conversation over civil rights for lesbian, gay, bisexual and transgender people, many have focused on what that means for access to public restrooms and school locker rooms.

Should transgender people be allowed to use bathroom facilities according to their preferred sex — or their birth sex?

More Hoosiers think transgender individuals should have to use public bathrooms corresponding to their birth gender, according to an Indianapolis Star poll conducted with Ball State University’s Bowen Center for Public Affairs.

That’s how 45 percent responded, of 600 people surveyed statewide. In contrast, 34 percent said transgender individuals should be allowed to use the bathrooms of their preferred gender. A significant portion — 20 percent — remained undecided.

“You’re getting into an area that people don’t really understand,” said Bowen Center director Joseph Losco.

LGBT advocates say equal rights for transgender people means they should be able to choose which restroom to use. For transgender people, the decision often boils down to safety.

But others, particularly conservatives, say the safety concern lies instead with women and children who may be using bathroom facilities with people whose birth sex is different from the way they present themselves.

Despite a fervor over what some LGBT rights advocates have dubbed “bathroom panic,” legislation in front of the Indiana General Assembly to extend LGBT protections under state civil rights law doesn’t specifically address the bathroom question.

Instead, Senate Bill 100 would allow school districts, employers and businesses to set their own policies for bathrooms and dress codes. That’s not a change from how things currently work, said bill author Travis Holdman.

Still, opponents have been rallying people against the proposal by leveraging bathroom concerns, tying transgender rights laws to opening doors to sexual assaults. They say sexual predators could use the law to gain easy access to restrooms and locker rooms.

“Keep men out of women’s restrooms!” Advance America, a conservative advocacy group, wrote on its website. “Your wife, your sister, your mom, and your children, and grandchildren are at risk!”

Eric Miller, executive director of Advance America, has produced several videos this year that claim the civil rights law expansion would endanger women and children. He did not return a call for comment on this story.

IndyStar poll results show that women are actually more accepting of transgender people choosing which bathrooms to use. Female respondents were more likely to say transgender people should be able to use public bathrooms according to their preferred gender, whereas the majority of male respondents wanted transgender people to use facilities corresponding to their birth sex.

“I’m wondering, when a transgender woman walks into a men’s room, how those men are going to feel,” said Chris Paulsen, campaign manager for Freedom Indiana, a group advocating for LGBT rights. “A transgender woman is a woman who should be in the women’s room.”

An expansion of the state civil rights law, she said, would not make it legal for sexual predators to attack people in restrooms. Opponents' concerns over bathrooms underscore the need for more education about transgender issues, Paulsen said.

For Malone, who struggled with her gender identity throughout her life, the contention that transgender people change their minds about being a man or a woman at the "flip of a switch" is a false narrative.

Her decision to live as a woman was not made lightly, said Malone, 40, who recently moved to Indianapolis from southeastern Indiana. She reached a point where she said she felt she just couldn't function anymore unless she transitioned.

Being transgender has had ramifications throughout her life, including on her career options. She works hard to fit in, so she won't be called out for looking different.

For example, before having laser treatments to get rid of her facial hair, Malone piled on makeup so she would look nonthreatening. She tries not to talk to anyone in bathrooms, because her voice has a deeper pitch.

Transgender people have long been using restrooms of their choice, she said, often without anybody noticing. Short of making people show identification to use bathrooms, she wondered how any kind of bathroom legislation would be enforced.

“It’s not illegal for us to use the bathroom,” Malone said. “I think there’s this idea floating around that we’re all just dying to invade these women’s spaces. But it’s something that we struggle with for a long time before we take the plunge.”

One of the greatest challenges to building support for the legislation will be dispelling what people are hearing versus what is actually written in the proposal, said Holdman, a Republican state senator from Markle.

“I think there’s some misinformation that’s being spread by folks out there opposing the bill to try to turn this into a bathroom bill, which it is not,” Holdman said. “I think there’s just some hype and emotion here that we need to cut through.”

He pointed out that many public places already address the bathroom issue by offering single-occupancy, unisex or family restrooms. Indiana University-Purdue University Indianapolis, for example, recently announced new "all gender" labels for 14 single-occupancy restrooms on campus to send a message of inclusion.

But LGBT advocates have criticized Holdman's bill for essentially punting on the bathroom question. They say it limits protections for transgender people and leaves them vulnerable to discrimination. The proposal also could roll back existing transgender rights in some Indiana cities that have stricter ordinances.

The IndyStar poll indicated that Hoosiers may want to see this issue resolved, one way or another. While most people said exempting bathrooms from LGBT protections wouldn’t change their stance on legislation, respondents were more likely to say that not addressing bathroom policies would reduce their support for the bill.

The "keep men out of women's restrooms" campaign has proved to be powerful, resonating strongly with the conservative base. Despite some denouncing it as fear-mongering, it seems to successfully capitalize on discomfort and unfamiliarity with transgender people. Many social conservatives also express moral disapproval of people who are transgender, because they see it as a choice that falls outside social norms.

Those arguments have been persuasive enough this year to kill efforts to extend LGBT protections in parts of Northern Indiana and repeal a human rights ordinance in Houston.

It also emerged in the outcry over controversy in an Illinois school, where a transgender girl was initially denied access to the girls locker room.

Federal guidelines are increasingly coming into play and starting to offer more protections for transgender people. In the case of the school locker room, the U.S. Department of Education said that under Title IX, discrimination against transgender students could be interpreted as discrimination based on sex. Also this year, the Department of Labor and the Occupational Safety and Health Administration released guidance on restroom policies for transgender employees.

Many conservatives argue that the concept of gender identity or gender expression is too vague. Prominent Terre Haute lawyer Jim Bopp, who is handling a case challenging local human rights ordinances that cover sexual orientation and gender identity, has said the burden unfairly falls on businesses to recognize a broad range of gender expression.

“This is the worst example of vague laws with the government threatening to go after you that I’ve seen,” Bopp told The Star earlier this month.

The legislation pending in the Indiana Statehouse would essentially define a transgender person as someone who has lived as their preferred gender for a year, before being provided with any legal protections under the civil rights proposal.

The American Psychological Association defines gender dysphoria in its Diagnostic and Statistical Manual of Mental Disorders, the standard guide used by mental health professionals. A diagnosis of gender dysphoria requires “a marked difference” between a person’s assigned gender and preferred one, with strong feelings that persist over at least six months.

The critical element of being transgender, the manual notes, is that it causes “clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

Lawmakers have been asking their constituents for feedback on the bathroom issue through legislative surveys, with questions such as this one from Rep. Ron Bacon, R-Chandler: "Would you support a law that allows a person whose self-identity does not conform to conventional notions of male or female genders to choose which bathroom they use?"

The discussion has prompted several bills on the issue in the General Assembly.

Democrats drafted Senate Bill 2, which would extend LGBT protections in state civil rights law without exemptions for public accommodations such as bathrooms.

Sen. Jim Tomes, R-Wadesville, authored Senate Bill 35, which would make it a misdemeanor for a woman to knowingly enter a men's bathroom or locker room, or for a man to go into one marked for women. The legislation defines gender based on birth sex or chromosomes.

It would not allow transgender people to choose bathrooms according to their preferred gender, he said. The bill also would mandate that students use school bathrooms or locker rooms based on their biological gender.

"Right now we're just trying to establish some kind of privacy for women and for men when they use the restroom," Tomes said. "Believe it or not, this is where we're at in society."

Tomes said he drafted the legislation after hearing concerns, and he wanted women to know, when they walked into a women's restroom, that only women would be in there.

Call Star reporter Stephanie Wang at (317) 444-6184. Follow her on Twitter: @stephaniewang.

IndyStar poll results

Do you think individuals who are transgender should be allowed to use public bathrooms of their preferred gender or should they have to use the bathrooms of the gender they were born as?

Overall results

Preferred gender: 34.4%

Gender they were born as: 44.9%

Don’t know/Refused: 20.7%

Results by gender

Male respondents:

Preferred gender: 26.3%

Gender they were born as: 53.6%

Don't know/Refused: 20.1%

Female respondents:

Preferred gender: 41.9%

Gender they were born as: 36.7%

Don't know/Refused: 21.4%

Do you strongly agree, somewhat agree, somewhat disagree or strongly disagree that businesses and government buildings in Indiana should provide gender-neutral bathrooms?

Strongly agree: 26.1%

Somewhat agree: 27.5%

Somewhat disagree: 10.9%

Strongly disagree: 24.4%

Don’t know/Refused: 11%

If public bathrooms were exempt from following legislation that provides protections for gays, lesbians, bisexuals, and transgender individuals, would you be more likely to support the legislation, less likely to support it, or would this not make much difference to you either way?

More likely to support: 15.7%

Less likely to support: 28%

Not make much difference either way: 49.4%

Don’t know/Refused: 6.9%

About the poll

The IndyStar poll, with the Bowen Center for Public Affairs at Ball State University, surveyed 600 adults living in Indiana via landline or cellphone and has a margin of error of plus or minus 5.2 percentage points. The statewide survey was conducted by Princeton Survey Research Associates International from Nov. 30 to Dec. 9. Princeton Survey Research, founded in 1989, has provided research for the Pew Research Center, NBC News and American Express and many others. The Bowen Center has provided analysis of statewide polls since 2007.