As state lawmakers across country have pursued laws to police trans women’s bathroom use, allegedly in the name of protecting cisgender women from sexual assault or being peeked at in stalls, other efforts to compromise women’s privacy have gone unchecked.
Men have been taking photos and videos up women’s skirts with little interference. The act is called “upskirting” and there have been numerous reports of such incidents happening in grocery stores, in malls, and on public transportation.
For instance, in Georgia — a state that where lawmakers aggressively pursued an anti-LGBT bill and state leaders joined a lawsuit opposing trans students’ bathroom access — upskirting remains legal thanks to a recent 6-3 decision from the Georgia Court of Appeals. The court decided that a man who admitted taking a video up a woman’s skirt in the grocery store did nothing illegal because, since the woman was in a public place, she had no expectation to privacy — despite the fact that she clearly covered the parts of her body the man was so interested in catching on video.
Georgia is hardly alone. Over the past few years, courts across the country have ruled that upskirting is not illegal. Last year, for example, an Oregon judge decided that it was not illegal for a man to kneel down in a Target store and take a photo up the skirt of a 13-year-old girl. The Texas Court of Criminal Appeals decided that a rule that would ban the practice violated the First Amendment. One judge wrote that the camera of the upskirter “is essentially the photographer’s pen and paintbrush.”
A few states — including New Jersey, Ohio, North Carolina, Wisconsin, and Massachusetts — are going in the other direction and passing laws that ban upskirting, many of which carry heavy fines. Oregon was added to that list last year, in part because the controversy over the upskirting of the 13-year-old girl motivated people to demand the new law.
Nearly Half Of U.S. States Are Now Fighting To Discriminate Against Transgender Students
But for the most part, our laws haven’t caught up with the technology, as Holly Kearl, an adjunct professor of women’s studies at George Mason University who has authored books on sexual harassment, recently explained to Vice. “One of the biggest weakness with many voyeurism laws is that they don’t include public spaces as places that people have the right to privacy,” Kearl told Vice. “Places like locker rooms or bathrooms are protected, but places like subways and parks often aren’t.”
Ironically, although many states still haven’t mustered up the legislative willpower to pursue bans on upskirting, lawmakers have found the time to introduce and pass laws regulating bathroom use that are supposedly for women’s safety and privacy. Kansas, Washington, South Dakota, Tennessee, South Carolina, South Dakota, and North Carolina have all banned transgender people from the bathroom that corresponds to their gender. (To North Carolina’s credit, its lawmakers pursued both legislation monitoring bathroom use and an upskirt ban.) In addition to these laws, nearly half of states in the U.S. are fighting the federal government’s guidance on why schools should comply with Title IX and allow trans students to use the bathroom of their gender.
Conservative legislators and advocates that supporting restricting trans people’s bathroom use, such as the the American Family Association and the Family Policy Institute of Washington, commonly argue that they’re doing it to protect cisgender women from harassment — even though they don’t have the evidence to support the argument that trans women are likely to threaten or hurt cisgender women in any way.
In fact, trans women are targeted for harassment and sexual assault more often than cis women are, and thus have far more reason to fear violence or intimidation in the men’s bathroom. Trans women are almost twice as likely to experience sexual violence, and 72 percent of hate violence homicides in 2013 were trans women, according to the Anti-Violence Project. Just last Saturday, a 25-year-old trans woman named Dee Whagham was stabbed to death at a hotel in Mississippi. She is at least the 16th trans person to be murdered this year.
Male sex offenders and harassers have never needed to wait for a law to pass allowing trans women to use the appropriate bathroom in order to assault women and violate their privacy. The plethora of incidents of men approaching women in plain sight of other people and taking photos and videos of body parts they chose to cover — and more or less getting away with it — speak to this point.