In May 2023, the Florida Legislature passed the “Safety in Private Spaces Act.” The Safety in Private Spaces Act (“Act”) requires certain restrooms and changing facilities to be separated based on biological sex. This Act covers restrooms and changing facilities of correctional institutions, educational institutions, juvenile detention centers, and public buildings. Except for a few circumstances, “[a] person who willfully enters . . . a restroom or changing facility designated for the opposite sex . . . and refuses to depart when asked to do so . . . commits the offense of trespass,” a misdemeanor of the second degree.[i] If this occurs when the restroom or changing facility is already occupied by another person then the offense of trespass becomes a misdemeanor of the first degree, punishable up to $1000 or imprisonment not exceeding one year.[ii] The declared government interest in the enactment of this Act is “to maintain public safety, decency, and decorum.”[iii] The Act was enacted on July 1, 2023.
On September 29, 2023, six members of “Women in Struggle,” a group of transgender, gender non-conforming, and intersex (TGNCI) individuals, filed a lawsuit in federal court challenging the constitutionality of the Safety in Private Spaces Act.[iv] In a ten-count complaint, the Plaintiffs alleged that the Safety in Private Spaces Act is a violation of the First, Fourth, and Fourteenth Amendments of the U.S. Constitution. Moreover, the Women in Struggle had organized a march in Orlando to protest this Act and sought a declaratory judgment as well as injunctive relief. In the Complaint, the Plaintiffs stated their fear of being arrested while traveling to their planned event in Orlando. They declared that if there were no unisex restrooms available at the Orlando airport (a public building owned by the city), at the rest stops (regulated by the state), at the public universities (an educational institution where they plan to march) and Orlando City Hall, they would have no choice but to use restrooms assigned to the opposite sex, in violation of the Act, because to do otherwise would be to invalidate their gender identity.[v] Before a federal court can rule on the merits of a plaintiff’s claim, the plaintiff must satisfy a three-prong test to establish that he or she has standing to sue. A plaintiff must show that (1) he or she has “suffered [or will imminently suffer] an ‘injury-in-fact’, . . . (2) there is a causal connection between the injury and the conduct complained of, . . . and (3) the injury will be redressed by a favorable decision.”[vi] Here, the Federal trial court denied the Plaintiffs’ request for declaratory and injunctive relief due to their lack of standing.
The Court held that the plaintiffs failed the first prong on standing. For a plaintiff to suffer from an injury-in-fact, they must show that there is “an actual or imminent invasion of a legally protected interest.”[vii] The Court determined that the plaintiffs did not show that they had a legal right to use the restrooms they planned to use, therefore there was no risk of a legal interest being invaded. This argument is weak as the Court focused on the restrooms at the public universities and Orlando City Hall where they planned to protest, not the Orlando airport nor the various rest stops on the Florida Turnpike. However, what weakened the plaintiff’s argument on the imminent risk of arrest is that three of the six plaintiffs alleged that they would only violate the statute if they were accompanied by cisgender allies. This self-imposed limitation is due to their refusal to use the restroom based on their biological sex and the fear of being harassed or assaulted in a restroom that correlates to their gender identity.[viii] The Court found that this argument failed because no evidence was provided on how “frequently [the plaintiffs would] be accompanied by cisgender allies when using the restrooms.”[ix] Therefore, the court found that there was no imminent injury. Nevertheless, even if the federal trial court had found that the plaintiffs had standing to sue, the court would still rule against them regarding the alleged violations of the First, Fourth, and Fourteenth Amendments of the U.S. Constitution.
The focus here will be on the alleged First Amendment violation.
The Plaintiffs argue that “us[ing] an affirming restroom or facility [is their way of] . . . engag[ing] in symbolic speech because they communicate to the world and all who perceive them that they are their chosen gender, even if that gender differs from their sex assigned at birth.”[x] As symbolic speech is a form of expression, the Plaintiffs argue that this Act infringes upon their freedom of speech and, therefore, violates the First Amendment. In a brief sentence, the Middle District Court disagreed.
Relying on Poor & Minority Justice Ass’n v. Chief Judge and United States v. Gilbert, the federal trial court held that “restroom use itself is not expressive conduct.”[xi] However, the facts behind these two cases are substantially different from this case.
In Poor & Minority Justice Ass’n, the protestors sued because they were denied access to the courthouse bathrooms during their protests in front of the courthouse. They claimed that their bathroom policy had a “chilling effect” on their First Amendment right when “three participants could not access courthouse restrooms [resulting in] the entire 50-person protest . . . to end.”[xii] This argument failed as the Court declared that “courthouse restrooms are not restrooms for the public at large…. and [t]he interior of the courthouse is a nonpublic forum.” The Court also noted its uncertainty as to why all 50 people left the protest when there were available restrooms in the surrounding areas. In sum, the Court held that no legally cognizable right was invaded when protestors were denied access to the restrooms. In Gilbert, the sole protestor, who protested by living in the federal courthouse building for six years, conceded that his use of the Federal building’s restroom was not expressive conduct.
In Texas v. Johnson, the Supreme Court held that to determine if the conduct is expressive and thus protected under the First Amendment, there must be “an intent to convey a particularized message and [that] the likelihood was great that the message would be understood by those who viewed it.”[xiii] In this case, the conduct behind the Plaintiffs’ use of restrooms assigned to the opposite sex may reasonably be viewed as expressive conduct. Here, when the Plaintiffs enter a restroom that correlates with their gender identity and not their biological sex, they intend to convey a message of their disapproval of the Florida legislature’s demand that restrooms be separately used by individuals based on biological sex only. There is also a great likelihood that those who view individuals who use the restroom of the opposite sex are protesting the Safety in Private Spaces Act. This conduct is similar to the sit-ins orchestrated by African Americans who desired to spread awareness by invoking outrage in “White-only” areas during the 1960s when segregation was legal. Therefore, the Plaintiffs’ conduct would be considered expressive conduct. However, the court must apply the O’Brien test to determine whether the government regulation that prohibits the Plaintiffs’ expressive conduct is constitutionally valid.
Under the four-prong O’Brien test, the government regulation is constitutionally valid if:
- it is within the constitutional power of the Government;
- it furthers an important or substantial governmental interest;
- the governmental interest is unrelated to the suppression of free expression; and
- the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.[xiv]
Once applied, one can see that the Safety in Private Spaces Act will survive this challenge. First, when the Florida Legislature enacted this Act for “maintain[ing] public safety, decency, and decorum,” it acted within the implied police powers of the State, which the Supreme Court has held to include “regulations designed to promote the public health, the public morals or the public safety.”[xv] Second, as this Act is within the police powers of the State, there is little doubt that its purpose is an important government interest. Moreover, the 11th Circuit Court of Appeals has also previously determined that bodily privacy, in the context of bathrooms separated by biological sex, is an important privacy interest and, therefore, an important government interest.[xvi] Third, this Act is unrelated to the suppression of free expression since the law is trying to protect the public safety and privacy of restroom occupants. The government’s interest in maintaining public safety is not related to the expression of gender identity. The legislative history shows that there was a debate on whether to include the phrase “for the purpose of arousing or gratifying a sexual desire of himself or herself or any other person,” which shows that one of their primary concerns was the invasion of bodily privacy.[xvii] Moreover, in the House Committee sessions, Representatives who supported this bill repeatedly declared that the intent is to “protect children.”[xviii] The government’s interest is to protect the privacy and safety of individuals using the restrooms. Finally, the restroom is not considered a traditional public forum for the exchange of ideas. The 11th Circuit Court of Appeals has found that all individuals have the “constitutional right to bodily privacy because most people have ‘a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating.’”[xix] As this Act aims to prevent involuntary exposure by prohibiting individuals from the opposite sex from entering the restroom, the incidental restriction of an individual who desires to communicate their disapproval of this Act is not greater than what is essential to the furtherance of the government’s interest.
Therefore, the Women in Struggle’s challenge of the constitutional validity of the Safety in Private Spaces Act will surely fail.
[i] Fla. Stat. § 553.865 (2023).
[ii] Fla. Stat. § § 553.865, 810.08 (2)(b), 775.082 (4), 775.083 (1).
[iii] § 553.865 (2023).
[iv] Complaint at ¶ 4, Women in Struggle v. Bain, No. 6:23-cv-1887-WWB-DCI, 2023 U.S. Dist. LEXIS 180454 (M.D. Fla. Oct. 6, 2023).
[v] Id. at ¶ ¶ 13, 228.
[vi] Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
[vii] Id. at 557.
[viii] Complaint at ¶ 11, Women in Struggle, No. 6:23-cv-1887-WWB-DCI, 2023 U.S. Dist. LEXIS 180454.
[ix] Women in Struggle, No. 6:23-cv-1887-WWB-DCI, 2023 U.S. Dist. LEXIS 180454, at *12.
[x] Complaint at ¶ 371, Women in Struggle, No. 6:23-cv-1887-WWB-DCI, 2023 U.S. Dist. LEXIS 180454.
[xi] Women in Struggle, No. 6:23-cv-1887-WWB-DCI, 2023 U.S. Dist. LEXIS 180454, at *13; see also United States v. Gilbert, 920 F.2d 878, 883 (11th Cir. 1991).
[xii] Poor & Minority Justice Ass’n v. Chief Judge, No. 8:19-cv-T-2889-02TGW, 2020 U.S. Dist. LEXIS 228192, at *10-11, (M.D. Fla. Dec. 4, 2020).
[xiii] Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 2539 (1989).
[xiv] United States v. O’Brien, 391 U.S. 367, 377 (1968).
[xv] Chi., B. & Q. R. Co. v. Illinois, 200 U.S. 561, 579 (1906).
[xvi] Adams v. Sch. Bd. of St. Johns Cty., 57 F.4th 791, 805 (11th Cir. 2022).
[xvii] S. 1674 Leg. Reg. Sess. (Fla. 2023) (citing the withdrawal of the proposed amendment to the Safety in Private Spaces bill).
[xviii] Facility Requirements Based on Sex: Hearing on CS/HB 1521 Before the H. Com. Comm. (Fla. Apr. 10, 2023),
https://www.myfloridahouse.gov/VideoPlayer.aspx?eventID=8804.
[xix] Adams, 57 F.4th at 805.
