President-Elect Donald Trump told us on CBS’ Face the Nation in January that if elected he could, and would consider, rescinding all of the executive orders issued by President Barack Obama. Trump later told us on NBC’s Today in May that people should use the bathroom they feel is appropriate. While we have seen him reverse course on several issues, and flip flop on others, there are still very valid concerns among the transgender community — especially with the “bathroom bills” that are already law in some states and headed towards being law in several states.
As someone who has investigated numerous sex crimes against children, I understand the fears of parents with young children about sexual predators gaining access to victims. I will not invalidate those fears as they are not irrational or invalid.
As someone who knows and has provided support for many people in the transgender community, I understand their fears of being assaulted or arrested for simply using a public restroom for it’s intended and primary purpose. I will not invalidate those fears as they are not irrational or invalid.
If we, as a society, determine we need additional laws to protect good, law abiding people in public restrooms then we need to understand both positions and find a measure that achieves the needs of all good, law abiding people.
Texas already has a number of laws that criminalize inappropriate behavior in public restrooms to protect both adults and children from inappropriate behavior and sexual predators. Disorderly Conduct (Penal Code § 42.01) criminalizes looking into restroom or shower stalls that are designed to provide privacy to the person using the area. Voyeurism (Penal Code § 21.16) criminalizes looking into restroom or shower stalls for sexual desire. Invasive Visual Recording (Penal Code § 21.15) criminalizes photographing or video recording people in a restroom or changing room. Indecent Exposure (Penal Code § 21.08) criminalizes the exposure of one’s genitals or anus for sexual desire regardless of where it occurs, including public restrooms. Indecency With a Child (Penal Code § 21.11) criminalizes the exposure of one’s genitals or anus for sexual desire where a child is present, even if the child doesn’t actually see the exposure. Public Lewdness (Penal Code § 21.07) criminalizes engaging in sexual activity in a public place or in a place where others will be offended or alarmed.
These laws should be sufficient to ensure that parents feel confident that inappropriate behavior in public restrooms, changing rooms, and shower facilities is already criminal. However, that may not be enough to prevent the enactment of laws which would readily harm good, law abiding members of the transgender community without providing equal protection under law. Many of such bills that have been authored thus far include language related to the gender marker on a person’s birth certificate. From a criminal investigative perspective, that’s going to be hard as hell to enforce, and here’s why:
1) You are required to identify yourself when you are stopped by law enforcement conducting an investigation. Verbally giving your information is sufficient under the law, yet you may be asked to show ID — such as a driver’s license, state ID card, or passport.
2) You are required to carry your driver’s license when you’re driving and are required to present it during a traffic stop. You are required to carry your passport when you are traveling internationally. You are NEVER required to carry your birth certificate or social security card — in fact those should stay locked up in a secure location.
3) Birth certificates are protected documents under law.. Under the 5th Amendment you cannot be compelled to show your birth certificate if such is to be used against you in a criminal investigation or criminal court. Getting a search warrant to get a copy of your birth certificate is a difficult task — if not an impossible task as very few judges would sign such a search warrant for a misdemeanor investigation. If you show your driver’s license, state ID card, or passport then I seriously doubt any judge would grant a search warrant to see if your birth certificate says anything different on the gender marker as such would be what we call a “fishing expedition” that the Supreme Court has said violates the 4th Amendment.
So, while legislators may write a birth certificate original gender marker clause into these proposed bathroom bills, that aspect will be almost impossible to enforce unless the individual waives their 5th Amendment right and provides access to their birth certificate. So, if you’re a member of the transgender community and law enforcement asks to see your birth certificate, original or amended, simply say “no”. You don’t have to explain. You don’t have to justify yourself. You have that right, and that right cannot be trampled upon by law enforcement without consequences.
That same right does not extend to your driver’s license or passport when driving or traveling, so you’ll want to get those documents modified as soon as you’ve reached a point in medical transition where your doctor will certify the treatment is irreversible. You do not have to have any specific treatment or surgeries already behind you as your doctor has the power to decide at what point your medical transition is irreversible even if you have significant treatment ahead of you. The certification letter from your doctor is currently sufficient on it’s own to change your passport — without a court order. The certification letter from your doctor is currently sufficient on it’s own to file for a court order (in Texas, at least) to change your driver’s license. Once you have those done you can file to change your social security records and have your birth certificate amended.
In summary, we already have a host of laws that criminalize inappropriate behavior in public restrooms, public changing facilities, and public shower facilities. Requiring a person to show their birth certificate for purposes of investigating bathroom laws or similar when they have other valid government-issued identification cannot be compelled under the 5th Amendment. You are required to identify yourself to law enforcement, but you get to choose what form of government-issued identification you use — unless you’re driving a motor vehicle (driver’s license) or traveling internationally (passport).
© 2016, Jeremy Liebbe. All rights reserved.