Text of MS SB 2753 (2024)

MISSISSIPPI LEGISLATURE 2024 Regular Session To: Judiciary, Division A By: Senator(s) Harkins, England Senate Bill 2753 AN ACT TO ENACT THE SECURING AREAS FOR FEMALES EFFECTIVELY AND RESPONSIBLY (SAFER) ACT; TO STATE LEGISLATIVE FINDINGS; TO DEFINE TERMS; TO REQUIRE ANY PUBLIC BUILDING THAT MAINTAINS A RESTROOM TO HAVE A RESTROOM DESIGNATED FOR EXCLUSIVE USE BY FEMALES AND A RESTROOM DESIGNATED FOR EXCLUSIVE USE BY MALES OR TO HAVE A UNISEX RESTROOM; TO REQUIRE ANY PUBLIC BUILDING THAT MAINTAINS A CHANGING FACILITY SHALL TO HAVE A CHANGING FACILITY DESIGNATED FOR EXCLUSIVE USE BY FEMALES AND A CHANGING FACILITY DESIGNATED FOR EXCLUSIVE USE BY MALES OR A UNISEX CHANGING FACILITY; TO PROVIDE LIMITED CIRCUMSTANCES IN WHICH A PERSON MAY ENTER A RESTROOM OR CHANGING FACILITY DESIGNATED FOR THE OPPOSITE SEX; TO REQUIRE AN APPLICABLE GOVERNMENTAL ENTITY TO ESTABLISH REGULATIONS AND PROCEDURES FOR WHEN A PERSON ENTERS A RESTROOM OR CHANGING FACILITY OF THE OPPOSITE SEX AND REFUSES TO DEPART; TO PROVIDE THAT THE REFUSAL TO DEPART THE RESTROOM OR CHANGING FACILITY SHALL BE A MISDEMEANOR TRESPASS; TO CREATE A PRIVATE CAUSE OF ACTION; TO REQUIRE THE ATTORNEY GENERAL TO ENFORCE THE PROVISIONS OF THIS ACT; TO REQUIRE A REPORT TO CERTAIN GOVERNMENTAL ENTITIES; TO REQUIRE THE STATE OR ITS POLITICAL SUBDIVISIONS TO DISAGGREGATE GATHERED DATA OF INDIVIDUALS BY SEX AS EITHER MALE OR FEMALE AS DEFINED IN SECTION 1-3-40, MISSISSIPPI CODE OF 1972, WHEN IT GATHERS DATA OF INDIVIDUALS THAT IS DISAGGREGATED BY SEX; TO CREATE NEW SECTION 1-3-40, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERMS OF "FEMALE," "MALE," "SEX," "GIRL," "BOY," "WOMAN," "MAN," "MOTHER" AND "FATHER" WHEN THE TERMS ARE USED IN ANY STATUTE; TO PROVIDE FOR SEVERABILITY OF THE ACT; AND FOR RELATED PURPOSES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: SECTION 1. This chapter shall be known and may be cited as "Securing Areas for Females Effectively and Responsibly Act" or the "SAFER Act." SECTION 2. The Legislature finds and declares that: (a) Females and males should be provided areas, including restrooms and changing facilities, for their exclusive use, respective to their sex, in order to maintain public safety, decency, decorum and privacy. (b) There are important governmental reasons to distinguish between the sexes with respect to spaces such as prisons, detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms, and other areas where biology, safety and/or privacy are implicated. (c) As such, policies and laws that distinguish between the sexes are subject to intermediate constitutional scrutiny, which forbids unfair discrimination against similarly situated males and females but allows the law to distinguish between the sexes where such distinctions are substantially related to important governmental objectives. SECTION 3. For purposes of this chapter, the following terms shall have the meanings ascribed herein unless the context clearly indicates otherwise: (a) "Changing facility" means a space designated for multiple individuals to dress or undress within the same space, including, but not limited to, a dressing room, fitting room, locker room, changing room or shower room. (b) "Public building" means any building, facility or space owned, leased or controlled by, or leased to, the state or any of its political subdivisions including, but not limited to, counties, municipalities, institutions of higher learning or community colleges. (c) "Restroom" means a space that includes a toilet or urinal. "Restroom" does not include a unisex restroom. (d) "Unisex changing facility" means a room intended for a single occupant or a family in which one or more persons may be in a state of undress, including, but not limited to, a dressing room, fitting room, locker room, changing room or shower room that is enclosed by floor-to-ceiling walls and accessed by a full door with a secure lock that prevents another individual from entering while the changing facility is in use. (e) "Unisex restroom" means a room that includes a toilet or urinal and that is intended for a single occupant or a family, 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 the room is in use. SECTION 4. (1) Any public building that maintains a restroom must, at a minimum, have: (a) A restroom designated for exclusive use by females and a restroom designated for exclusive use by males; or (b) A unisex restroom. (2) Any public building that maintains a changing facility shall, at a minimum, have: (a) A changing facility designated for exclusive use by females and a changing facility designated for exclusive use by males; or (b) A unisex changing facility. SECTION 5. (1) For purposes of this chapter, a person may only enter a restroom or changing facility designated for the opposite sex under the following circumstances: (a) To accompany a person of the opposite sex for the purpose of assisting or chaperoning a child under the age of 12, a vulnerable person as defined by Section 43-47-5, or a person with a disability as defined by Section 43-6-203(b); (b) For law enforcement or governmental regulatory purposes; (c) For the purpose of rendering emergency medical assistance or to intervene in any other emergency situation where the health or safety of another person is at risk; (d) For custodial, maintenance, or inspection purposes, provided that the restroom or changing facility is not in use; or (e) If the appropriate designated restroom or changing facility is out of order or under repair and the restroom or changing facility designated for the opposite sex contains no person of the opposite sex. (2) The applicable governmental entity for each public building under its ownership, control or lease shall, within ninety (90) days, establish regulations and procedures for any person who willfully enters, for a purpose other than those listed in subsection (1) of this section, a restroom or changing facility designated for the opposite sex on the premises and refuses to depart when asked to do so by any employee or contractor of the owner, lessee or lessor of a public building. (3) A person who willfully enters, for a purpose other than those listed in subsection (1) of this section, a restroom or changing facility clearly designated for the opposite sex on the premises of a public building and refuses to depart when asked to do so by an employee or contractor of the owner, lessee or lessor of a public building shall be guilty of a misdemeanor trespass to be punished as provided in Section 97-17-97. SECTION 6. (1) A person may assert a violation of this chapter as a claim or defense in a judicial or administrative proceeding and obtain compensatory damages, injunctive relief, declaratory relief, punitive damages as provided under Section 11-1-65, when sought against a party other than the state or its political subdivisions, or any other appropriate relief. A prevailing party who establishes a violation of this chapter shall recover reasonable attorney's fees. Such claim may be brought against any of the applicable governmental entities for each public building under its ownership, control or lease which caused or contributed to a violation of this chapter. (2) A minor may bring an action throughout their minority through a parent or next friend and may bring an action in their own name upon reaching the age of majority. (3) Notwithstanding any other provision of law, an action under this chapter may be commenced, and relief may be granted, in a judicial proceeding without regard to whether the person commencing the action has sought or exhausted available administrative remedies. SECTION 7. (1) The Attorney General may bring an action to enforce compliance with this chapter. (2) This chapter does not deny, impair, or otherwise affect any right or authority of the Attorney General, the State of Mississippi, or any agency, officer, or employee of the state, acting under any law other than this act, to institute or intervene in any proceeding. SECTION 8. (1) On or before July 1, 2025, every governmental entity, for each public building under its ownership, control or lease, shall provide a report and documentation regarding its compliance with the provisions of this act to the Department of Finance and Administration. On or before December 1, 2025, the Department of Finance and Administration shall file a combined report of each governmental entities compliance with the provisions of this act to the Speaker of the Mississippi House of Representatives, the Lieutenant Governor and the Governor. (2) The Department of Finance and Administration shall promulgate rules and regulations to implement this section. SECTION 9. When the state or its political subdivisions, as defined by Section 11-46-1(i), gather data of individuals that are disaggregated by sex, the state or its political subdivisions shall disaggregate the data of individuals by sex as either male or female as defined in Section 1-3-40. SECTION 10. The following shall be codified as Section 1-3-40, Mississippi Code of 1972: 1-3-40. (a) The term "female," when used in any statute, shall mean an individual who has, had, will have through the course of normal development, or would have had, but for a developmental anomaly, genetic anomaly, disease, or injury, the reproductive system that at some point produces ova. (b) The term "male," when used in any statute, shall means an individual who has, had, will have through the course of normal development, or would have had, but for a developmental anomaly, genetic anomaly, disease, or injury, the reproductive system that at some point produces sperm. (c) The term "sex," when used to classify a natural person in any statute, shall mean the biological indication of male and female at birth, without regard to an individual's "gender identity" or any other terms intended to convey a person's psychological, chosen or subjective experience or sense of self. (d) The term "girl," when used in any statute, shall mean a human female who is a minor. (e) The term "boy," when used in any statute, shall mean a human male who is a minor. (f) The term "woman" when used in any statute, shall mean a human female who is not a minor. (g) The term "man," when used in any statute, shall means a human male who is not a minor. (h) The term "mother," when used in any statute, shall mean a female parent. (i) The term "father," when used in any statute, shall mean a male parent. SECTION 11. Any provision of this act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable under Section 1-3-77 and shall not affect the remainder hereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances. SECTION 12. Sections 1 through 8 of this act shall be codified as a separate chapter within Title 29, Mississippi Code of 1972. SECTION 13. This act shall take effect and be in force from and after its passage.

MISSISSIPPI LEGISLATURE 2024 Regular Session To: Judiciary, Division A By: Senator(s) Harkins, England, Barrett, Berry, Blackwell, Fillingane, Hill, McCaughn, McLendon, Parker, Parks, Rhodes, Robinson, Seymour, Sparks, Suber, Tate, Whaley, Younger, McMahan, Williams Senate Bill 2753 (As Sent to Governor) AN ACT TO CREATE NEW SECTION 29-18-1, MISSISSIPPI CODE OF 1972, TO CREATE THE "SAFER ACT" TO REGULATE GOVERNMENTAL BUILDINGS; TO CREATE NEW SECTION 29-18-3, MISSISSIPPI CODE OF 1972, TO PROVIDE LEGISLATIVE FINDINGS FOR THE ACT; TO CREATE NEW SECTION 29-18-5, MISSISSIPPI CODE OF 1972, TO PROVIDE DEFINITIONS FOR THE ACT; TO CREATE NEW SECTION 29-18-7, MISSISSIPPI CODE OF 1972, TO REQUIRE CERTAIN PUBLIC EDUCATION BUILDINGS TO HAVE EXCLUSIVE MALE AND/OR FEMALE RESTROOMS OR SINGLE-SEX OR FAMILY USE RESTROOMS AT A MINIMUM; TO CREATE NEW SECTION 29-18-9, MISSISSIPPI CODE OF 1972, TO REQUIRE CHANGING FACILITIES TO BE EXCLUSIVE MALE AND/OR FEMALE OR SINGLE-SEX OR FAMILY-USE AT A MINIMUM; TO CREATE NEW SECTION 29-18-11, MISSISSIPPI CODE OF 1972, TO REGULATE PUBLIC STUDENT HOUSING FOR SINGLE-SEX EDUCATIONAL HOUSING; TO CREATE NEW SECTION 29-18-13, MISSISSIPPI CODE OF 1972, TO REQUIRE SINGLE-SEX SOCIAL SORORITIES AND FRATERNITIES TO COMPLY WITH THE DEFINITIONS OF THIS ACT TO DESIGNATE HOUSING; TO CREATE NEW SECTION 29-18-15, MISSISSIPPI CODE OF 1972, TO REGULATE HOW PERSONS ENTER A SINGLE-SEX RESTROOM, CHANGING FACILITY OR EDUCATIONAL HOUSING SPACE; TO CREATE NEW SECTION 29-18-17, MISSISSIPPI CODE OF 1972, TO AUTHORIZE ASSERTION OF A VIOLATION OF THIS ACT; TO CREATE NEW SECTION 29-18-19, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE ATTORNEY GENERAL TO BRING ACTION REGARDING THE PROVISIONS OF THIS ACT; TO CREATE NEW SECTION 1-3-83, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERMS "FEMALE," "MALE" AND "SEX"; AND FOR RELATED PURPOSES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: SECTION 1. The following shall be codified as Section 29-18-1, Mississippi Code of 1972: 29-18-1. This act shall be known and may be cited as "Securing Areas for Females Effectively and Responsibly Act" or the "SAFER Act." SECTION 2. The following shall be codified as Section 29-18-3, Mississippi Code of 1972: 29-18-3. Legislative findings; intermediate scrutiny. The Legislature finds that: (a) Females and males should be provided areas, including restrooms, changing facilities and single-sex educational housing spaces, for their exclusive use, respective to their sex, in order to maintain privacy and safety. (b) There are important governmental reasons to distinguish between the sexes with respect to spaces where biology, safety, and/or privacy are implicated. As such, policies and laws that distinguish between the sexes are subject to intermediate constitutional scrutiny, which forbids unfair discrimination against similarly situated males and females but allows the law to distinguish between the sexes where such distinctions are substantially related to important governmental objectives. (c) These findings reflect the intent of the Legislature to fulfill important governmental interests of protecting students’ dignity, health, safety, welfare, and privacy rights by enacting this neutral policy which simply treats equally those of the same and opposite biological sex "determined solely by a birth," without regard to the fluidity of how someone acts or feels. SECTION 3. The following shall be codified as Section 29-18-5, Mississippi Code of 1972: 29-18-5. Chapter definitions. For purposes of this act, the following terms shall have the meanings ascribed herein: (a) "Changing facility" means a space designated for multiple individuals to dress or undress within the same space, including, but not limited to, a dressing room, locker room, changing room, or shower room. This term does not include a single-sex or family-use changing facility. (b) "Single-sex educational housing space" means a multi-person dwelling unit, such as a room, suite, or apartment, located within a public education building functioning as housing for student residents at an educational institution and designated for use or occupancy only for members of one (1) sex, but excludes common areas designated for use by members of both sexes. (c) "Public education building" means any building, facility or space owned, operated, rented or leased by, or rented or leased to any public school, public university, public community or junior college and the institutions of higher learning. (d) "Restroom" means a space designated for multiple individuals that includes toilets and/or urinals. This term does not include a single-sex or family-use restroom. (e) "Single-sex or family use changing facility" means a room intended for a single occupant or a family in which one or more persons may be in a state of undress, including, but not limited to, a dressing room, locker room, changing room, or shower room that is enclosed by floor-to-ceiling walls and accessed by a full door with a secure lock that prevents another individual from entering while the changing facility is in use. (f) "Single-sex or family-use restroom" means a room that includes a toilet or urinal and that is intended for a single occupant or a family, 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 the room is in use. SECTION 4. The following shall be codified as Section 29-18-7, Mississippi Code of 1972: 29-18-7. Protection of restroom privacy. Any public education building that maintains a restroom shall, at a minimum, have: (a) A restroom designated for exclusive use by females and a restroom designated for exclusive use by males; or (b) A single-sex or family-use restroom. SECTION 5. The following shall be codified as Section 29-18-9, Mississippi Code of 1972: 29-18-9. Protection of changing room privacy. Any public education building that maintains a changing facility must, at a minimum, have: (a) A changing facility designated for exclusive use by females and a changing facility designated for exclusive use by males; or (b) A single-sex or family-use changing facility. SECTION 6. The following shall be codified as Section 29-18-11, Mississippi Code of 1972: 29-18-11. Protection of single-sex educational housing space privacy. Any student required to reside in housing at an educational institution shall have the right to be housed in a single-sex educational housing space with persons of the same sex. SECTION 7. The following shall be codified as Section 29-18-13, Mississippi Code of 1972: 29-18-13. Social fraternity and sorority single-sex housing facilities on public lands shall comply with state law. Social fraternities and sororities at educational institutions that have and operate single-sex housing facilities located on public land shall comply with the definitions contained within this act for purposes of maintaining such facilities as single sex only. SECTION 8. The following shall be codified as Section 29-18-15, Mississippi Code of 1972: 29-18-15. Permissible purposes to enter sex-designated restrooms, changing facilities or single-sex educational housing spaces. For purposes of this act, a person may not enter a restroom, changing facility, or single-sex educational housing space, designated for the opposite sex, except under the following circumstances: (a) To assist or chaperon a child under the age of twelve (12), a vulnerable person as defined in Section 43-47-5, or a person with a disability as defined in Section 43-6-203(b), with such child, vulnerable person, or person with a disability also allowed to enter, with a parent, guardian, or caregiver, the restroom or changing room designated for the sex of their parent, guardian, or caregiver; (b) For law enforcement, fire protection or response, or other public safety purposes; (c) For governmental purposes, including employees or contractors of governmental entities acting within the scope of their employment or contract; (d) For the purpose of rendering emergency medical assistance or to intervene in any other emergency situation where the health or safety of another person is at risk; (e) For custodial, maintenance, or inspection purposes, provided that the restroom or changing facility is not in use; (f) If the appropriate designated restroom or changing facility is out of order or under repair and the restroom or changing facility designated for the opposite sex contains no person of the opposite sex; or (g) In single-sex educational housing spaces as authorized by educational institutions for moving, visiting, administrative, health, or other authorized purposes. SECTION 9. The following shall be codified as Section 29-18-17, Mississippi Code of 1972: 29-18-17. Private enforcement. (1) A person may assert a violation of this act as a claim or defense in a judicial or administrative proceeding. (2) Any person under eighteen (18) years of age may bring an action at any time to assert a violation of this act through a parent or next friend and may bring an action in their own name upon reaching the age of eighteen (18) years of age. (3) Any attorney's fees may be awarded by the court as it deems appropriate. (4) No private cause of action against a public school, state agency, public university, public community college or junior college, or the institutions of higher learning is authorized by this act. SECTION 10. The following shall be codified as Section 29-18-19, Mississippi Code of 1972: 29-18-19. Attorney General enforcement. (1) The Attorney General shall bring an action to enforce compliance with this act. (2) This act shall not be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the State of Mississippi, or any agency, officer, or employee of the state, acting under any law other than this act, to institute or intervene in any proceeding. SECTION 11. The following shall be codified as Section 1-3-83, Mississippi Code of 1972: 1-3-83. Female, male, sex of natural persons. (1) "Female" means an individual who naturally has, had, will have, or would have, but for a developmental or genetic anomaly or historical accident, the reproductive system that at some point produces eggs. (2) "Male" means an individual who naturally has, had, will have, or would have, but for a developmental or genetic anomaly or historical accident, the reproductive system that at some point produces sperm. (3) "Sex," when used to classify a natural person, means the biological indication of male and female as observed or clinically verified at birth, without regard to a person's psychological, chosen, or subjective experience, feelings, actions, or sense of self. (4) The following additional provisions apply to the use of "sex" and related terms: (a) There are only two (2) sexes, and every individual is either male or female. (b) "Sex" is objective and fixed. (c) Persons with "DSD conditions" (sometimes referred to as "differences in sex development", "disorders of sex development", or "intersex conditions") are not members of a third sex. (d) The foregoing definition of "sex," for purposes of state law, neither requires nor precludes the accommodation of persons with a congenital and physically verifiable diagnosis of "DSD condition" (sometimes referred to as "differences in sex development", "disorders of sex development", or "intersex conditions"); however, such accommodation may be required by federal law. SECTION 12. Severability. Any provision of this act is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable herefrom and shall not affect the remainder hereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances. SECTION 13. This act shall take effect and be in force from and after its passage.