LGBT advocates fight back against ’bathroom bill’ rhetoric

by Ethan Jacobs

Bay Windows

Saturday April 25, 2009

To hear opponents of the transgender rights bill describe the legislation, one might think it would unleash full-scale anarchy on the Commonwealth. House Bill 1728 makes the state's hate crimes law trans-inclusive and bans discrimination based on gender identity or expression in the areas of employment, housing, credit, public accommodations and public education; opponents have attempted to narrow the debate on the bill by focusing almost exclusively on the issue of bathrooms, locker rooms and women's gyms.

For instance, at an April 8 lobby day sponsored by the anti-gay Massachusetts Family Institute at the State House, former Fall River school superintendent Joseph Martins addressed attendees and painted a nightmarish scenario in which school officials would be powerless to stop hordes of teenage boys from charging into the girls' locker rooms to get a peek at their female classmates.

"It is difficult enough to control student behavior, prevent discrimination of all students, and ensure the safety of all students without having to distinguish between truth and a lie of some student claiming, at will, a gender-related identity, appearance, expression or behavior other than that assigned sex at birth, simply to gain access to the opposite-at-birth-sex locker-rooms, showers, or lavatory facilities," Martins told the crowd.

"Nothing in House Bill 1728 protects students using their birth-sex locker-rooms, showers, and lavatory facilities that may be in various stages of undress from unwanted eyeing or so-called, on purpose 'unintended' body touching by students of the opposite sex."

Another speaker at the lobby day rally, a 16-year-old girl named Katie Grayton, also argued that the bill would be exploited by boys to get access to the women's room.

"I cannot imagine what would happen if boys could freely go into girls' bathrooms for pranks. This is especially significant in schools or places where many teens hang out. This bill would create embarrassing, annoying and dangerous situations," said Grayton.

MFI added a sinister twist to the argument in a one-page brief the group prepared for legislators, claiming that the bill would allow sexual predators to pose as transgender women to gain access to women's bathrooms and locker rooms.

"Due to this wording, any man can legally gain access to facilities reserved for women and girls simply by indicating, verbally or non-verbally, that he inwardly feels female at the moment. There is no way to distinguish between someone suffering from 'Gender Identity Disorder' and a sexual predator looking to exploit this law. This is the dangerous reality of this bill," wrote MFI.

Last week trans rights advocates fought back. Gay and Lesbian Advocates and Defenders (GLAD), the Massachusetts Transgender Political Coalition (MTPC) and other members of the coalition working to pass the bill released a fact-sheet, "The Truth About H. 1728/S. 1687," (the second number refers to the House bill's identical Senate counterpart) to refute some of the misconceptions about the bill and to put to rest the claim that the bill would usher in chaos in the bathrooms.

Jennifer Levi, director of GLAD's Transgender Rights Project, disputed MFI's claim that the trans rights bill would make it impossible to maintain separate men's and women's bathroom and locker room facilities. The state's public accommodations laws currently allow facilities to operate gender-segregated "rest room[s], bathhouse[s], [and] seashore facilit[ies]," as well as single-sex gyms. H.B. 1728 says those facilities will continue to be exempt from sex discrimination laws "to the extent such places of public accommodation, resort or amusement allow persons the full enjoyment of the accommodations consistent with an individual's gender identity or expression." In practice, Levi said that means operators of facilities have to allow trans women to use the women's facilities and trans men to use the men's facilities.

As for the argument by MFI and Martins that there will be no way to distinguish between a legitimate trans person and a male trying to enter a women's locker room under false pretenses, Levi said that non-discrimination legislation puts the burden of proof on transgender people.

"The person pursuing protections under the law ultimately has to prove the legitimacy of their claim. ... The burden is ultimately on me to show that I legitimately sought to use the bathroom that's consistent with my gender identity or expression," said Levi. She said in the case of single-sex gyms, owners of the gyms would be well within their legal rights to ask to see the driver's license of any applicant to check the gender designation. This year the Massachusetts Registry of Motor Vehicles instituted a policy to make it easier for transgender people to change the gender marker on their license.

"You could also use the same policy that is currently in place at the DMV, which is ask for a letter from a healthcare provider that confirms the person's gender identity or expression," said Levi.

Columbia Law School professor Suzanne Goldberg said that based on her reading of the law, H.B. 1728 would give no protections to men posing as women for the purpose of entering women's locker and bathroom facilities. Goldberg, a former attorney for Lambda Legal and co-director of

Columbia's Gender and Sexuality Law Program, said that if the bill passes, the operator of a public accommodation would still have the right to keep men out of the women's bathroom or deny membership at a women's gym to a man.

"If a gym owner thought that a man was trying to use the women's locker room, the owner could exclude that man. If the man brings a discrimination lawsuit, the judge or jury would have to decide who to believe, the gym owner or the patron," said Goldberg. A trans woman could show the court documentation from medical providers of her transition process and her efforts to change her name and the gender designation on her driver's license.

Goldberg said opponents of anti-discrimination laws often raise the specter of people with bad intentions exploiting the law, but in practice that has rarely occurred.

"Fraud is one of the perennial objections to anti-discrimination laws, but there simply is not documentation of identity fraud being a significant problem," said Goldberg.

The bill makes no changes to any of the laws about criminal conduct in public facilities, said Levi.

"This is a civil rights bill," said Levi. "It doesn't change any of the laws available to the prosecutors to ensure that no one is using the restroom for any improper purpose."

Levi said transgender people might have to pay a high personal cost in order to defend their rights under the law to access gender-appropriate facilities. She said transgender people who are illegally blocked from restrooms or other facilities may have to go to court and reveal deeply personal aspects of their lives to a judge, a jury and the public. They may have to reveal details of their transition process to make the case that they were accessing gender-appropriate facilities.

"Laws are not magic bullets in terms of doing away with discrimination. ... Absolutely there may be people who have to pursue claims and make the case about the legitimacy of their lives, and that's a hard process to go through. Getting the law passed is just the starting point," said Levi.

Opponents of transgender non-discrimination legislation in other states have used similar tactics as MFI, but increasingly the "bathroom bill" argument has failed to derail trans rights bills. Last year Focus on the Family, the Colorado Springs-based Christian right powerhouse, failed to stop a transgender non-discrimination bill in Colorado from becoming law, despite running a radio ad campaign attacking it as a "bathroom bill." Earlier this year opponents of a transgender non-discrimination ordinance in Gainesville, Florida, ran a commercial featuring a menacing man in sunglasses following a young girl into a public bathroom, but they were unsuccessful in overturning the ordinance. MFI has used that same video on its website.

Supporters of a transgender non-discrimination bill in New Hampshire, House Bill 415, have also had to counter efforts by opponents to label their legislation as a "bathroom bill," and thus far have been successful. In March the bill failed in the New Hampshire House after lawmakers voted 181-149 to kill it, but when it came up for a second vote April 8 it passed by one vote. The Senate has not yet voted on the bill.

Openly gay state Rep. Ed Butler (D-Hart's Location), the bill's sponsor, said the difference between the first and second vote was largely a matter of timing. When the March vote was taken many members were not present in the chamber, but in April Butler said they took a vote right at the start of the session, when most lawmakers were in attendance. But Butler said he and other supporters of the bill also had to convince colleagues that H.B. 415 was more than just a "bathroom bill" and that the apocalyptic scenarios laid out by opponents were unrealistic. He said their most effective argument in refuting the "bathroom bill" rhetoric was "to point out that there are 13 states that already have these protections and no reported incidents of problems in public accommodations, lockers rooms, places like that. ... And getting people comfortable with the fact that we're protecting a vulnerable population, we're not putting something in place that's going to threaten the majority of the population," said Butler. "It's just being forthright about it as opposed to defensive."

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