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Advocates, opponents of trans rights bill to have their say on Beacon Hill

by Ethan Jacobs
Sunday Mar 2, 2008

Brace yourselves. If opponents of transgender rights have their way, the discussion at a March 4 hearing on the transgender rights bill, House Bill 1722, will be derailed in favor of dredging up age-old arguments about who gets to use which bathroom. The landmark hearing will take place before the Joint Committee on the Judiciary and will mark the first time that any committee of the state legislature has heard testimony exclusively related to trans rights. The bathroom argument - essentially, that women will be harassed by men in the ladies room, an argument that was successfully employed to torpedo the Equal Rights Amendment - is an old one.

Already the anti-gay Coalition for Marriage and Family has sent an action alert to its members, warning them of the alleged dangers posed by the bill to bathroom safety. The alert called on supporters to call legislators and parrot that same argument. Meanwhile, on the fringier end of the anti-LGBT movement Amy Contrada of the group MassResistance has been slowly releasing pieces of what she purports to be a 75-page report warning against "the coming nightmare of H.B. 1722." (see"Contrada warns of trans apocalypse.")

But the advocates who drafted the bill and the lawmakers who are pushing for it say the arguments of groups like the Coalition and MassResistance are a red herring, distracting from the bill's true purpose: to extend the state's non-discrimination and hate crimes protections to a population that desperately needs them. In the run-up to the hearing the Massachusetts Transgender Political Coalition (MTPC) and its allies are mobilizing members of the transgender community and their supporters to testify to the discrimination the trans community faces and the impact that passing H.B. 1722 would have on addressing it.

H.B. 1722: The breakdown
Opponents of the bill have accused it of doing some outlandish things. Contrada, for instance, alleges that it would force hotels to host BDSM conferences against their will. But Laura Langley, one of the drafters of the legislation and chair of the Massachusetts Lesbian and Gay Bar Association's committee on transgender inclusion, gave Bay Windows a breakdown on what the language of the bill actually does. H.B. 1722 will add "gender identity and expression" to the state's hate crimes laws. It will also add protections based on gender identity and expression to state non-discrimination laws covering education, employment, housing, credit, and public accommodations. The bill requires the inclusion of "people of diverse gender identities or expressions" on the advisory boards of the Massachusetts Commission Against Discrimination (MCAD), the state's lead civil rights agency. Finally, the bill expands the name and mission of the Massachusetts Commission on Gay and Lesbian Youth to include transgender and bisexual youth.

The legislation defines the terms "gender identity and expression" to mean, "a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual's assigned sex at birth."

Langley said the bill's language intentionally casts a wide net, covering anyone who may be discriminated against because of either their gender identity or the way they express their gender.

"As with any non-discrimination statute the term that's put in really encompasses everyone. ... By drafting it as gender identity or expression we're including all people, whether their gender identities and expressions are stereotypically gender conforming or gender non-conforming," said Langley.

Jennifer Levi, an attorney for Gay and Lesbian Advocates and Defenders (GLAD) and another of the drafters of the legislation, said the language was designed to ensure that the bill would protect the wide range of members of the transgender community.

"It is intended to protect transsexual people. It is intended to protect transgender individuals who don't take medical steps to align their gender identity with their physical expression of their gender," said Levi.
She said the bill would also protect non-transgender-identified people who do not conform to society's gender norms, including many gay and lesbian people.

"It's not new language. It exists in a number of states that have passed trans-inclusive laws," said Levi. Currently thirteen other states and the District of Columbia have banned discrimination based on gender identity or expression, as have the cities of Boston, Cambridge and Northampton.

According to a report by the National Gay and Lesbian Task Force on transgender-inclusive non-discrimination laws, the scope of those laws varies state by state. Like H.B. 1722, the laws passed in Iowa, Maine, Minnesota, New Jersey, Oregon, Washington and the District of Columbia all include protections around employment, public accommodations, housing, and education. But some of those laws go even further than the proposed Massachusetts legislation. In an interview with Bay Windows last month, MTPC steering committee chair Holly Ryan singled out the New Jersey law as the gold standard of transgender-related legislation, noting that the law contained strong provisions that addressed bullying of transgender students in schools and outlawed the use of the so-called transgender panic defense in criminal trials. "We consider that the best law," said Ryan.

On the other end of the spectrum, many of the states that have passed transgender-inclusive non-discrimination laws have not provided all the protections proposed in H.B. 1722. In Hawaii advocates pressed in 2005 for a non-discrimination bill, but Gov. Linda Lingle vetoed it. In her veto statement Lingle described the bill's definition of gender identity or expression as "objectionable because it contains no limiting terms or interpretational guidelines," and contended it would likely lead to "controversy and unwarranted lawsuits." That bill's definition of gender identity and expression was similar but somewhat broader than the definition in H.B. 1722, encompassing, "a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth."

Advocates came back in 2006 and passed a much more limited bill, focused only on public accommodations. The bill passed into law without the governor's signature. And even without the passage of non-discrimination legislation around employment, the state's Civil Rights Commission already interprets the state's prohibition on sex discrimination in the workplace as providing some protection to transgender people. MCAD has issued similar rulings in Massachusetts, but advocates say legislation is needed to ensure clarity and consistency in enforcing non-discrimination protections.

Opponents conjure terror in the toilet
In its January action alert, the Coalition for Marriage and Family, which led the charge against same-sex marriage in Massachusetts in its previous incarnation as, claimed that passing H.B. 1722 would threaten the safety of women and children. The alert said the bill "threatens bathroom and locker room safety" by "creating the potential for a wave of access by those claiming to be transgender into gender-specific areas like public bathrooms." The alert urged supporters to contact the legislature and make that same argument.

That same month MFI released a statement explaining its opposition to H.B. 1722 using the same rationale, saying, "Women and children have a right to feel safe in their person when they access public rest rooms, locker rooms and bath houses at parks, recreational areas and other venues. This legislation potentially compromises that safety by, among other things, blurring the distinction of who may enter a 'women's room.'"

Gunner Scott, chair of MTPC, said the claim that H.B. 1722 would put women and children at risk for harm is unfounded.

"Clearly this law is not going to allow anyone to harass someone in a bathroom. If someone harasses someone in a bathroom they still have to face criminal charges," said Scott. He said transgender people themselves often face threats to their safety when using public bathrooms and other facilities and this law is meant to help protect them.

To neutralize the Coalition's argument MTPC has secured support from some high-profile allies. Jane Doe, Inc., the state's coalition of organizations working against sexual assault and domestic violence, and the Massachusetts chapter of the National Organization for Women (NOW) released a joint statement to lawmakers announcing their support for H.B. 1722 and arguing that the legislation poses no danger to women. The statement accuses the Coalition of using scare tactics to try to derail transgender rights legislation. (See "Jane Doe and Mass. NOW tackle the bathroom argument.")

"For [the Coalition] to deliberately create an unfounded fear about women's safety, while simultaneously ignoring the serious threats to safety experienced by many transgender and gender non-conforming people in the Commonwealth, is disgraceful," reads the statement, in part.

Levi said beyond safety the objections by the Coalition also seem to be rooted in the discomfort people may feel sharing bathroom and locker room facilities with transgender people.

"Discomfort has often been the reason why people oppose non-discrimination laws. ... It's never been a justification for not prohibiting discrimination," said Levi.

Langley said that the law would not threaten the establishment of separate bathrooms or locker room facilities for men and women, or the establishment of men-only or women-only gyms. But under H.B. 1722 those facilities would have to open their doors to anyone who identifies as and lives as the gender that they serve. A transgender person who identifies as a particular gender would be entitled to use bathroom, locker room and other single-sex facilities for that gender, regardless of whether or not they have had surgery or are taking hormones.

"It would be an incredible invasion of privacy to say we require that we check people's hormone levels or their genitals before they enter a bathroom," said Langley.

Rep. Carl Sciortino (D-Somerville), one of the bill's two lead sponsors, said in his conversations with other lawmakers they have not been swayed by the bathroom argument, particularly once they learn that the bill will not lessen the criminal penalties for harassment and assault in restrooms.

"Some of our opponents have put out what I would say are red herring issues, and legislators are smarter than that," said Sciortino. "The bill adds to the protection of all citizens and it doesn't protect anyone from engaging in criminal behavior. ... Once we make that point to our colleagues, to other legislators, they understand that, and this really is a red herring issue."

Next: Dressing for success


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