Lawmakers raise concerns about locker rooms at trans rights hearing

by Ethan Jacobs .
Thursday Jul 16, 2009

During a Judiciary Committee hearing on the transgender rights bill July 14 some members of the committee indicated that they had concerns about the bill, particularly about its impact on bathroom and locker room facilities. In the weeks leading up to the hearing opponents of the bill, led by the conservative Christian advocacy group Massachusetts Family Institute (MFI), had waged a media and lobbying campaign to brand the legislation, House Bill 1728, as "the bathroom bill," claiming that it would enable sexual predators to dress as women and enter women's bathroom and locker room facilities. Only one committee member, Rep. Colleen Garry (D-Dracut), raised that scenario as a serious concern during the hearing, but other committee members, including House committee chair Rep. Eugene O'Flaherty (D-Chelsea), said they believed the bill might threaten the rights to privacy and modesty of non-transgender people using locker room and bathroom facilities. H.B. 1728 would amend the state's non-discrimination and hate crimes laws to make them transgender-inclusive.

Several committee members asked questions about the bill during the testimony of Jennifer Levi, an attorney for Gay and Lesbian Advocates and Defenders (GLAD) and one of the lead advocates working to pass the bill. O'Flaherty asked Levi how the law would impact his own right to privacy if he was using the locker room at a men's gym and someone else was using the facilities who he believed to be transgender.

"If an individual comes into the locker room and [is] not, either from an anatomical perspective or an expression perspective, subjectively considered by me to be considered male, and I feel that my right to privacy, along with my right to enjoy that heath club because it's a male-only heath club [is threatened], how would you answer the concerns that arise from members of those health clubs or from other facilities of public accommodation?" asked O'Flaherty.

Levi responded that the law would allow a transgender person to use gym facilities consistent with his or her gender identity or expression, which would mean transgender men would be permitted to work out at men's gyms and use the locker room facilities. She said gyms could not force transgender members to use separate changing facilities or bathrooms set apart from the rest of the club, but they could make such facilities available to other members who were uncomfortable sharing space with a transgender person.

"It would be permissible for those facilities to provide you with a more private space than the one you're in if there's a reason why you find it to be offensive to be around someone else's body you've determined to be inconsistent with your gender expression. ... It's always an option for you to make choices about having more privacy, and that will remain true," said Levi.

Another committee member, Rep. John Fernandes (D-Milford), asked how gym owners would determine whether transgender clients were eligible to use the men's or the women's facilities. Levi answered that in Boston, which has had a citywide transgender non-discrimination ordinance since 2002, some gyms have asked for a note from a medical provider indicating that the client has gone through a gender change protocol, which may or may not involve surgery. She said under H.B. 1728 gym owners could require such documentation. Fernandes replied that based on his reading of the law gym owners might not be permitted to ask for documentation of a gender change.

"I see the law as much broader than that. ... I'm not saying it might not be interpreted that way. I don't see it in the statute as written," said Fernandes. He asked whether the law might allow gyms to create separate facilities to protect "the modesty of the non-transgender women," and Levi answered that the law would not allow gyms to segregate transgender members from the rest of the gym membership.

Garry told Levi she was concerned that the trans rights bill could pose a threat to public safety, although she added she did not believe transgender people themselves would be the aggressors.

"I have a real concern, and I will say it point blank, I don't believe transgender people would be pedophiles or endanger anyone, but the fact that we have pedophiles out there that could dress like a woman and go into a ladies woman and use that opportunity, and how do you suggest we fight that?" asked Garry.

Levi replied that even without passage of H.B. 1728 there was nothing stopping a sexual predator from dressing as a woman and sneaking into a women's bathroom. She argued that the solution was "robust enforcement of our criminal laws" against people who commit crimes in bathrooms and locker rooms, but she said the goal of H.B. 1728 was to ensure, among other things, that transgender people have access to appropriate public facilities.

"The reality also is that transgender people do need restrooms and do need to use public facilities, and so what this law does is provide predictability and clarity for those individuals that manage those facilities," said Levi.

Next: Locker Room Rights debated


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