Document Type

Working Paper

Publication Date

7-27-2017

SSRN Discipline

Legal Anthropology eJournals; LSN Subject Matter eJournals; Cultural Anthropology eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; CJRN Subject Matter eJournals; Legal Scholarship Network; PRN Subject Matter eJournals; Criminal Law & Procedure eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; AARN Subject Matter eJournals; Criminal Justice Research Network; Humanities Network; Anthropology & Archaeology Research Network

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 socalled "bathroom laws" as a form of discrimination in violation of federal law Few scholars though have considered the criminal justice implications of these proposalsBy 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 responsibilityThis 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

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