Melissa Sklarz

Second of two parts (Part One)

Opponents of equal rights for LGBT people have been using “bathroom scare” tactics for some years now to try and stop bills that would prohibit discrimination against transgender people, but fears about who can use public restrooms have a long history in the struggle for civil rights.

Going back to the late 1800s, Jim Crow laws in some states required separate public restrooms for “White people” and “Coloreds.” It was not until the Civil Rights Act of 1964 that the United States Congress outlawed segregation in “public accommodations,” which include public bathrooms, restaurants, hotels, libraries, and other public spaces.

In the 1970s, during the height of the women’s movement’s efforts to pass the Equal Rights Amendment to the federal constitution, opponents such as Phyllis Schafly claimed the law would lead to unisex bathrooms.

More recently, such fears have cropped up in debates about the military’s “Don’t Ask, Don’t Tell” ban on openly gay servicemembers. Supporters of the keeping the ban expressed concerns about gay and straight servicemembers showering together.

Jennifer Levi, director of the Gay and Lesbian Advocates and Defenders’ Transgender Rights Project, said that, in Connecticut, the most recent state to add gender identity and gender expression to its non-discrimination laws, opponents of the bill had raised the bathroom issue during hearings and floor debates, but “didn’t get any traction.”

The Family Institute of Connecticut, the leading group opposing the bill, consistently referred to it as the “Bathroom Bill” there, too, and ran Facebook advertising and robocall campaigns against it.

But the legislature passed the bill, and Governor Dannel Malloy (D) signed it July 6.

Bathroom scare tactics were also employed in Nevada last month against three bills prohibiting discrimination on the basis of gender identity or expression in public accommodations, housing, and employment. But the tactics failed there, too. And Nevada Governor Brian Sandoval, a Republican, signed the measure into law July 1.

GLAD’s Levi explained that the bathroom arguments failed in Connecticut and Nevada because, “they completely fall apart under any scrutiny.” When legislators really focus on the objections raised by our opponents, they realize that the bathroom issues are raised solely to tank the bill, not because they have any independent validity.”

She said advocates must take the time, though, to educate legislators, first “on who transgender people are and why we need a law to protect that vulnerable community,” and then to “[counter] specious objections raised by idealogues.”

Sarah Warbelow, state legislative director for the Human Rights Campaign, added that one of the reasons for the success of the anti-discrimination bills in Connecticut and Nevada was “a willingness from legislators to meet with transgender people and really listen to their stories.” She credits advocates in both states for “making sure legislators were constantly hearing from constituents on the importance of the bill.”

Levi noted that the Connecticut legislature also defeated several amendments that would have created a “bathroom exclusion” to the law—something no law regarding transgender protections has ever had.

“You can’t create an exception for bathrooms and come up with a workable bill,” she said.

In Maryland, Democrats supporting a bill to protect transgender people from discrimination took out protections for “public accommodations,” which include public restrooms. The measure failed to make it out of committee in April.

Dana Beyer, executive director of Gender Rights Maryland, said the failure of the transgender bill in Maryland was not the result of a right-wing campaign around bathroom fears. It was due, she said, to “internal leadership politics” in the legislature, in the aftermath of a failure to pass a high-profile marriage equality bill a month earlier.

Likewise, opponents of a New York transgender bill tried to scare away votes by warning about bathroom predators. The measure failed in June, said Melissa Sklarz, director of the New York Transgender Rights Organization, largely because of “internal, institutional” maneuverings in the state Senate and the “endless power struggle” in the capital.

Sklarz said conservatives are using the bathroom fears as leverage to “get something from the Democrats and Governor.” Republicans control the state Senate, but Democrats control the Assembly, and Governor Andrew Cuomo is a Democrat.

The New York transgender bill passed the Assembly but failed in the Senate when the Republican conference refused to let it go to the floor for a vote before the end of the session—a session fraught with political deal-making to secure marriage equality and resolve unrelated issues of rent control and property taxes.

In Massachusetts, where the legislature held a hearing June 8 on a proposed bill to prohibit discrimination against transgender people, the outcome a remains an open question. A poll conducted in November 2009 by Lake Research Partners found that over three-quarters of voters in Massachusetts—76 percent—had a positive reaction to the idea of protecting transgender people from discrimination in employment, housing, and public accommodations. This included a majority of Republicans (53 percent) as well as Democrats (90 percent), and independents (74 percent).

When asked about an earlier, but identical, version of the Massachusetts bill in 2009, 73 percent said they wanted their legislators to vote in favor of it, versus 18 percent against. Those in favor included 57 percent of Republicans, 83 percent of Democrats, and 71 percent of independents.

Half of voters (51 percent) said they would be more likely to vote for a legislator who voted for the bill, versus 14 percent who would vote against them. The remaining 35 percent said it would make no difference to their vote.

And yet an anti-gay organization in Massachusetts has employed a radio ad to characterize the legislation as “The Bathroom Bill.” The ad also borrows on the California formula used against Proposition 8—children—by suggesting parents soon won’t be able to allow their children to go into public restrooms alone.

There is no timetable yet for a committee vote on the bill in Massachusetts, said Michael Avitzur, counsel for the Joint Judiciary Committee, where the bill now sits. But all committee action for this session must be completed by March 2012.

In the meantime, the Massachusetts Transgender Political Coalition plans to continue educating legislators about transgender issues and the falsehoods in the “bathroom” ads, said executive director Gunner Scott. It is also gearing up to expand its own “I Am: Trans People Speak” public education campaign, a series of videos and written stories from transgender people talking about their lives, which it launched in November 2010. And it is raising money to run related ads in Boston-area transit locations this fall.