On May 17, 2023, Governor DeSantis approved and signed House Bill 1521 (“HB 1521”), which creates several new requirements for certain covered entities relating to restrooms and changing facilities. The Bill, also called the “Safety in Private Spaces Act”, is set to take effect on July 1, 2023. Covered entities under the Act include: correctional institutions; detention facilities; educational institutions; juvenile correctional facilities or juvenile prisons; and public buildings. The Act defines a public building as, “a building comfort-conditioned for occupancy which is owned or leased by the state, a state agency, or a political subdivision.” Importantly, the term “public building” does not include the following entities: correctional institutions; detention facilities; education institutions; a juvenile correction facility or juvenile prison; a detention center or facility; or any facility used for a residential program as described in Florida Stat. Section 985.03(44)(b).
Under the Safety in Private Spaces Act, a covered entity that maintains a restroom and/or changing facility, must at a minimum, have a restroom and/or changing facility designated for exclusive use by females and for exclusive use by males. The Act defines a person’s sex as, “indicated by the person’s sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth.” A covered entity may have unisex restrooms and changing facilities, though it must only be intended for a single occupant or a family. In a unisex restroom, a covered entity will be required to ensure that the restroom is enclosed by floor-to-ceiling walls and is accessed by a full door with a secure lock that prevents another individual from entering while being used.
The Act provides the following limited circumstances for a person to enter a restroom or changing facility designated for the opposite sex:
- To accompany another person to chaperone a child under the age of 12;
- To accompany an elderly or disabled person, as defined by Florida Statutes Section 825.101 and 760.22;
- For law enforcement purposes;
- For emergencies (medical or otherwise); and
- For custodial, maintenance, or inspection purposes.
Under the Act, the applicable governmental entity for each public building under its jurisdiction will need to establish disciplinary procedures for any employee of the governmental entity who unlawfully enters a restroom (employee restroom or public restroom) or changing facility and refuses to depart when asked to do so. A person who unlawfully enters a restroom or changing room in a public building and refuses to depart when asked to do so by an employee of the governmental entity for the public building will have committed the criminal offense of trespass as provided by Florida Statute Section 810.08. On July 1, 2024, members of the public will be permitted to submit complaints to the Attorney General relating to covered entities that fail to meet the specific requirements under the Act.
A covered entity that fails to comply with the requirements of the Act is subject to penalties and to licensure or regulatory disciplinary action, as applicable. The penalties detailed in the Act include the Attorney General bringing a civil action to enforce the Act against any covered entity beginning on July 1, 2024. Specifically, the Attorney General may seek injunctive relief. If a covered entity is found to have willfully violated the Act, the Attorney General may seek to impose a fine of up to $10,000.
The following covered entities will be required to submit documentation to its applicable governing body detailing their compliance with the Act within one year after being established, or if such covered entity was established before July 1, 2023, then no later than April 1, 2024:
- Correctional institutions;
- Detention facilities;
- K-12 educational institutions or facilities;
- State universities;
- Postsecondary educational institutions or facilities; and
- Juvenile correctional facilities or juvenile prisons.
We anticipate that the constitutionality of the new law will be challenged pursuant to the Equal Protection Clause of the Florida Constitution. Nonetheless, all covered entities should be prepared to comply with the provisions in the Act beginning on July 1, 2023.
Should you have any questions about the Safety in Private Spaces Act, please feel free to contact any member of our Labor and Employment team.
The information contained in this document does not constitute legal advice
