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Bathroom Rule: Clearing Up Confusion on the Legislative Response


Many have expressed confusion with all the happenings surrounding the Washington State Human Rights Commission’s rule on open-bathrooms and the repeal effort. The legislative process is very complex, and oftentimes, legislators will use the natural confusion about the process to influence the outcome that they want to achieve. But be confused no more!

On December 26th, 2015, the Human Rights Commission enacted a rule, WAC 162-32, that contains provisions that open up bathrooms, locker rooms, and shower facilities inside “public accommodations” by allowing people to enter those facilities by the way they claim to identify internally rather than what their DNA and biological structure would show. Because of the rule’s clause that makes it unlawful to ask “unwelcome questions” such as the gender or motives of a person entering the facility, concern exists that sexual predators – who otherwise would never otherwise claim to identify as a woman — may use this rule to shower with women or spy on them in the bathroom with better legal protections.

The Human Rights Commission has rule making authority delegated by the legislature. Therefore, the rules it makes are legally-binding and do not require the legislature’s approval to go into effect.   The legislature does, however, have the authority to overrule the Human Rights Commission, and change the level of authority that the commission carries.

The Human Rights Commission met on Thursday night to hear a petition from a citizen, but declined to overturn their rule after hearing the concerns of citizens. The only way this Human Rights Commission meeting would have affected the repeal efforts is if the Human Rights Commission had overturned their ruling. Other than that, Thursday’s meeting had no implications on the ongoing process to repeal the rule.

This legislative session, three separate efforts have been initiated by the legislature to repeal the rule on open-bathrooms. While the three bills have the same general goal – repealing the rule – they go about it in three separate ways.

SB 6443 by Senator Doug Ericksen is the bill that has made the most progress to date. This bill literally calls for a repeal of the provisions in WAC 162-32 that opens up bathroom, locker room, and shower facilities, and removes the Human Rights Commission’s authority to make rules on that subject ever again. This bill is currently at step 7 in the 22-step legislative process. You can click here to watch a video that explains the legislative process in Washington. In short, SB 6443 is far from becoming law; the Senate Commerce and Labor Committee passed it on Wednesday, however. This week, SB 6443 will likely be heard and passed by the Senate Rules committee, making it eligible to be voted on by all Senators in a floor vote. If the Senate passes the bill, an identical version of it must be introduced, heard and passed in the House of Representatives. That version of the bill must be introduced and pass through a policy committee by February 5th in order for this legislative effort to remain alive.

HB 2589 by Rep. Graham Hunt is a bill that amends the underlying civil rights law to clarify that the law did not intend to say that gender identity or gender expression are sufficient reasons to enter a bathroom, locker room, or shower facility, and that biology must be accounted for in entry policies. This is the bill that Rep. Laurie Jinkins has said that she would not hear in the House Judiciary Committee. If she doesn’t hear the bill in that committee, it cannot pass in the conventional method. A House member would have to pull it directly from the introduction to the floor, which can be done according to House rules, though it’s not a common occurrence. It would be preferable that Rep. Jinkins schedules a hearing for the bill, but it must be scheduled and heard by February 5th in order for this effort to remain alive. As with any other bill, identical language would have to be introduced by a bill in the Senate and pass through the policy committee in step 3 (click here to watch a video on the legislative steps) by February 5th.

SB 6548 by Senator Judy Warnick contains very similar language to the bill introduced by Rep. Graham Hunt (HB 2589), but it doesn’t contain an exemption allowing minor children and disabled people from being allowed to use the opposite-gender bathroom, as Rep. Hunt’s bill contains. This bill has been introduced in the Senate and will be heard in the Senate Law and Justice Committee on Monday, February 1st, at 1:30pm. Concerned citizens can attend this committee hearing and make calls to members on the committee.

All of the bills focused on this effort contain provisions to repeal the dangerous policy enacted by the Human Rights Commission. Even if one or all of these bills passed through both chambers, they must be signed into law by Governor Jay Inslee, who, while he has declined to comment, has not been sympathetic of public safety concerns. Of course, in election years, politicians’ actions are often unpredictable, as many are worried about re-election — that’s why the volume of phone calls and emails is so important to these efforts.

FPIW encourages all concerned citizens to email their legislators about this issue, call their offices, and contact Governor Inslee’s office as well.  For bills marked “SB”, you should contact Senators; for bills marked “HB”, you should contact members of the House of Representatives.

Share your concerns. Your input matters and your concerns are being heard. to fight this policy to the end!

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