Martha Coakley

First of two parts (Part Two)

A right-wing group in Massachusetts has launched a new ad campaign using an old scare tactic—the fear of sexual predators in public bathrooms. The aim is not to shore up security in public restrooms. It’s to destroy a bill to prohibit discrimination against people based on their gender identity.

The campaign dubs the non-discrimination legislation as “The Bathroom Bill.” But while the ad is running in Massachusetts, similar bathroom scare tactics have failed to stop non-discrimination bills in two other states recently. And in two other states where gender identity bills failed recently, several transgender advocates say it was political maneuvering that played the more significant role in the loss.

The Massachusetts Family Institute (MFI) radio ad begins with the sounds of a playground and the voice of a little girl calling out to tell her mother that she’ll be right back. Then another woman tells the mother, “You know, pretty soon, you won’t want her to go into a bathroom by herself anymore.”

The mother reacts with surprise, and the woman tells her about “The Bathroom Bill” that the state legislature is “about to pass.”

“It lets men use women’s bathrooms,” she says, “to somehow help transgender people….Public bathrooms just won’t be safe anymore.”

A narrator then says the bill “will open up all public restrooms and school locker rooms to anyone of either sex.” He urges listeners to call their legislators and tell them to “vote no on The Bathroom Bill.”

MFI launched the campaign July 12. It includes radio spots on Boston area news and talk radio stations as well as “creative online elements,” according to a press release. MFI did not disclose the size of the advertising buy but said the length of the campaign would be determined by whether the bill passes out of committee.

The real title of the bill is the “Act Relative to Transgender Equal Rights” and simply adds four words—“gender identity and expression”—to existing Massachusetts civil rights laws. Those laws currently prohibit discrimination based on race, sex, religion, and other characteristics in employment, housing, public accommodations, education, and credit. And the bill would add the words “gender identity or expression” to the state’s hate crime law.

The Act defines “gender identity and expression” as “a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s physiology or assigned sex at birth.”

Interestingly, current Massachusetts law does not bar a man from using a women’s public restroom or a woman from using a men’s public restroom. There are laws that prohibit lewdness, “open and gross conduct,” and indecent exposure, among other behaviors, and those laws could be used against a person entering a public restroom to harass or assault a person of the opposite sex, according to the state attorney general’s office.

Massachusetts Attorney General Martha Coakley sent a letter July 20 to the Massachusetts House Judiciary Committee, where the bill now sits, expressing her “strong support” for it and directly addressing the MFI’s ads. She said the MFI Bathroom Bill ads “mischaracterize the bill to foster fear and bigotry.”

The safety and privacy of all people in restrooms and locker rooms would remain the same, she wrote, noting that the bill “only increases our ability to prosecute criminal conduct and protect the civil rights of all, and does nothing to restrict our ability to protect victims of any crimes.”

She said her office knows of no instance when someone has tried to use gender identity or expression protections “as a defense to claims of criminal conduct or violation of privacy” in any jurisdictions that have passed similar laws. And the bill, she added, does not extend any new protections to sex offenders, as some opponents have claimed.

The Massachusetts gender identity bill has been introduced twice before. In 2008, it sat in the House Judiciary Committee without getting a vote. In 2010, it failed to pass as an amendment to the House budget bill.

Although MFI ran similar ads in 2010, Gunner Scott, executive director of the Massachusetts Transgender Political Coalition (MTPC), said he didn’t think they were a factor in that bill’s failure. He blames a lack of education around transgender issues, saying many legislators assumed gender identity and expression were already covered in non-discrimination laws.

But Scott called MFI’s “Bathroom Bill” ads “inflammatory” and “dehumanizing.” A greater problem, he said, is the harassment of transgender people in bathrooms.

According to a 2009 study by the National Gay and Lesbian Task Force and the National Center for Transgender Equality, 53 percent of a survey group of transgender people across the country reported having been “verbally harassed or disrespected in a place of public accommodation.” In Massachusetts, which is considered a leader in protecting the rights of LGBT people, the number was 58 percent.

Fifteen states—California, Colorado, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New Mexico, Rhode Island, Vermont, Iowa, Oregon, Washington, and Nevada—plus the District of Columbia and 136 cities and counties, currently include gender identity and expression in their non-discrimination laws.

Ten states—California, Colorado, Connecticut, Hawaii, Maryland, Minnesota, Missouri, New Mexico, Pennsylvania, and Vermont—plus the District of Columbia, have added crimes motivated by a person’s actual or perceived gender identity and expression to their hate crimes laws.

The federal government has provided some leadership in this area. In 2009, Congress passed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act to expand federal hate crimes laws to include crimes motivated by actual or perceived gender or gender identity. But that law covers only federal crimes, such as those committed on federal land and/or using an implement that has been through interstate commerce.

And at the end of May, the U.S. Office of Personnel Management issued guidance to all executive departments and agencies, concerning the use of employee restrooms. The guidance stated that, once a federal employee “has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity.”

Part 2: Public restrooms have been the target of scare tactics used against a number of civil rights movements, not just LGBT people.