House Republicans Have Proposed a Capitol Bathroom Ban. What Museums Could be Affected?

A bill has been proposed in the US House of Representatives that would prohibit the use of single-sex facilities, such as restrooms, locker rooms, and changing rooms, by transgender individuals on federal property, raising questions of how this would apply to the employees and visitors of cultural institutions subject to federal law.

The bill was introduced South Carolina Representative Nancy Mace, who posted the full text of the second proposal on X on November 20. If the bill is signed into law, it would include artists, architects, curators, researchers, and other arts professionals participating in arts programs headquartered in Washington, D.C. such as the Arts in Embassies program at the US State Department; the Art in Architecture program and the Fine Arts Program at the US General Services Administration; as well as the Interior Museum program at the US Department of the Interior.

Federal property includes the entirety of the Smithsonian Institution, the offices of the National Foundation on the Arts and the Humanities and the foundation’s four sub-agencies: the National Endowment of the Arts, the National Endowment for the Humanities, the Federal Council on the Arts and the Humanities, as well as the Institute of Museum and Library Services.

According to a 2022 report from the Pew Research Center 1.6 percent of American adults are transgender and non-binary. The report also noted that American adults under 30 are more likely than older adults to be trans or nonbinary, at 5.1 percent. A 2022 demographic survey of art museum staff from the Mellon Foundation and Ithaka S+R had 160 respondents identify as non-binary, out of a total of 30,314 respondents from 328 museums, or 0.4 percent.

The Smithsonian Institution alone encompasses 664 facilities, including the Hirshhorn Museum and Sculpture Garden, as well as many other museums. For the 2023 fiscal year, the Smithsonian reported 6,229 federal employees and 3,845 onsite volunteers. Prior to the pandemic, the Smithsonian had even more people “provide information to museum visitors, lead exhibition tours, assist in the care of collections, and contribute to research”, with 6,896 onsite volunteers for the 2019 fiscal year.

While the Smithsonian was established by Congress in 1846 as an independent federal trust instrumentality, a memoradum opinion in 1988 said “transactions with the Smithsonian involving federal property or appropriated funds are subject to federal property and contract law.”

Mace also introduced a separate bill that would prohibit members, officers, and employees of the House of Representatives from “using single-sex facilities other than those corresponding to their biological sex, and for other purposes”. The 2023 Office of Personnel Management Federal Employee Viewpoint Survey demographic report had a total of 623,096 responses, and only 2,403 indicated they were transgender (0.4 percent). Of those respondents, 401 transgender federal employees said they worked remotely.

“I’m absolutely 100% gonna stand in the way of any man who wants to be in a women’s restroom, in our locker rooms, in our changing rooms,” Mace told reporters of the two bills, adding, “I will be there fighting you every step of the way.”

On November 20, the House officially instituted a bathroom ban on Capitol Hill. “All single-sex facilities in the Capitol and House Office Buildings – such as restrooms, changing rooms, and locker rooms – are reserved for individuals of that biological sex,” per House speaker, Louisiana Republican Mike Johnson.

November 20 was also Transgender Day of Remembrance, which has been recognized annually on that date since 1999 and honors transgender people killed by violence.

The second legislative proposal has not yet been assigned a committee for debate.

Critics of Rep. Mace’s proposed bathroom bans have noted that cisgender women with presentations that are not gender-conforming—such as short haircuts, masculine clothing, and mastectomies due to breast cancer—will also be harmed as a result.

“I can promise you from personal experience that the most frequent targets of gender harassment in women’s bathrooms in the era of bathroom bans will be cis women who do not look stereotypically feminine in some way,” New York Times Opinion columnist Lydia Polgreen posted on X on November 19.

“The rash of bills targets transgender people for scrutiny, surveillance and judgment, and that is reason enough to reject them as an affront to human dignity,” Polgreen wrote in an essay for the New York Times last May, in response to Florida governor Ron DeSantis signing a law requiring people in government-run buildings to use bathrooms associated with their sex assigned at birth.

“But my experience tells me that these laws are really about something else: a step along the path to a rigid enforcement of gender norms, roles and presentation. It is about the routine humiliation and degradation of people who look or behave in ways a fanatical minority wants to punish. They will not stop until anyone who fails to meet their rigid definitions of identity forfeits the right to feel at ease.”

ARTnews has reached out to the Smithsonian for comment. This story will be updated.