Transgenders rights bill still faces fight in legislature

by Ethan Jacobs

Bay Windows

Thursday March 19, 2009

LGBT advocates have already persuaded a majority of the legislature to back the transgender rights bill, but that doesn't mean that passage of the bill is a done deal. In fact, the bill's fate will ultimately be determined by a handful of legislative "gate-keepers" who must decide both to support it and to make it a legislative priority. Without their support and commitment to expend political capital on the measure, the bill is dead in the water this session.

There are four key figures in particular who will be crucial to the bill's success: House Speaker Robert DeLeo (D-Winthrop) Senate President Therese Murray (D-Plymouth), and Judiciary Committee co-chairs state Sen. Cynthia Stone Creem (D-Newton) and state Rep. Eugene O'Flaherty (D-Chelsea), whose committee has jurisdiction over the bill. Of those four DeLeo and Creem support the bill and are signed on as co-sponsors, while Murray and O'Flaherty have yet to take a public position. But even if all four of these gate-keepers agree to support the bill, it's unclear whether they will make its passage one of their priorities, given the impact of the failing economy on the legislative agenda. The success of the bill also depends on the support of the other members of the Judiciary Committee, who must give the bill a majority vote to send it to the full House and Senate.

"There's three categories of people that really matter," said Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus. "Category one are the co-chairs of the committee, the Judiciary Committee, category two, the members of the committee, and category three, the leadership of the House and Senate. So if we look at the landscape through that filter, you get an analysis which is mixed."

On the Judiciary Committee, Senate co-chair Cynthia Stone Creem (D-Newton) strongly supports the trans rights bill and was an original co-sponsor, unlike her House co-chair O'Flaherty (D-Chelsea), who has been lobbied on the bill but has not gone public with his position. O'Flaherty did not return a call to comment for this story. O'Flaherty co-chaired the committee last session with socially conservative former state Sen. Robert Creedon when the trans rights bill was filed for the first time. The bill came up for a committee hearing relatively late in the session, in March 2008, and under O'Flaherty and Creedon it died in committee. Advocates and lawmakers backing the bill declined to speculate on whether O'Flaherty, a conservative Democrat who was a late but faithful convert to the pro-marriage equality camp, currently supports the bill. But state Rep. Carl Sciortino (D-Medford), one of the bill's lead sponsors, said he is optimistic O'Flaherty will give the legislation a fair hearing.

"Chairman O'Flaherty was very engaged in working with us last session, and I'm hopeful we'll be able to work with him again this session to move the bill through expeditiously," said Sciortino.

As for the rest of the committee, support for the bill appears to be weaker than it is in the legislature as a whole. Advocates brought together an impressive number of original co-sponsors for the bill last month, with 21 senators and 83 House members signed on, representing majority support in both chambers. But that success did not extend to the members of the judiciary committee, where just three of the 17 members - Creem, state Sen. Thomas McGee (D-Lynn) and state Rep. Catherine Clark (D-Melrose) - signed on as co-sponsors. The House members of the committee may be a particularly hard sell. Four of the 11 House members - Reps. James Fagan (D-Taunton), Colleen Garry (D-Dracut), Lewis Evangelidis (R-Holden) and Daniel Webster (R-Pembroke) - are reliable opponents of LGBT rights legislation who voted in favor of a failed constitutional amendment to ban same-sex marriage in June 2007.

State Sen. Ben Downing (D-Pittsfield), the lead sponsor in the Senate, said that he would soon reach out to Creem to discuss timing for moving the bill through the committee, and he believes that ultimately proponents will find the necessary votes.

"I plan on bringing it up with [Creem] in the not-too-distant future. I think we have some work to do on the House side, but I think the House side is open to the proposal. ... I think there may be some work to do on the committee, but the committee co-chairs, even if they have different ideas about certain issues, are both individuals open to people making the case for their priorities," said Downing.

One factor that might determine how much support the bill picks up in committee is how much support it gets from the legislature's two leaders, Murray and DeLeo. The speaker has come out forcefully in favor of the legislation, signing on as a co-sponsor and announcing his intention to have the House take up the bill at the MassEquality Valentine's Day Gayla event last month. DeLeo won election as speaker at the end of January, and his vocal support for the legislation so early in his tenure is seen as a strong demonstration of his commitment to the cause.

Murray, a strong champion for LGBT rights who was instrumental in orchestrating the defeat of the 2007 anti-gay marriage amendment and the 2008 passage of two marquee pieces of LGBT rights legislation, the MassHealth Equality bill and the 1913 law repeal bill, is so far remaining mum on whether she will back the trans rights bill.

"[Murray] knows that Speaker DeLeo supports the transgender legislation, and she looks forward to giving the bill a full review when it comes up this session," wrote Murray spokesman Dave Falcone in an e-mail to Bay Windows when queried about Murray's position.

Downing said proponents of the bill have reached out to Murray's office but have not spoken to her directly about the legislation.

"We have talked with her staff about it. We have not brought it up directly with the Senate president, although I plan to as soon as the bill has a bill number and a hearing date," said Downing.

MassEquality Political Director Matt O'Malley called Murray "an early and active and dynamic champion for equality and for building a better Commonwealth," but he declined to speculate on whether she would support the legislation.

"We know she's always given us a fair opportunity, she's just been a tremendous leader and has always been fair with us, so we're going to work with the judiciary committee and are confident she'll continue an open and fair process as Senate president," said O'Malley.

Pam Wilmot, executive director of Common Cause Massachusetts, which advocates for open and accountable government, said that if the bill wins a favorable committee vote it would be largely Murray and DeLeo's decision about whether it comes up for a full vote in their respective chambers. At that point, the committee chairs and House and Senate leadership will determine whether to send it to the House or the Senate. The bill will go to the designated chamber's steering and policy committee, which determines when to send it to the full chamber.

"It's really the Senate president and the House speaker's call. The chairs of the Steering and Policy committee in either branch can help slow something down or speed something up, but they're really a creature of the leadership. ... Usually if a bill comes out of committee it's already got some sort of nod and it's not going to get held forever in steering and policy, although there are some exceptions to that rule," said Wilmot. (For more on how the bill could progress in the legislature see "Path to Passage").

Yet Isaacson said even if leadership supports the bill, they might not be willing to spend the political capital to push it through, particularly in a session where they may have to convince the rank-and-file members to support politically unpalatable legislation to get the economy back on track.

"I have no doubt that DeLeo is supportive and going to be helpful, as will several on his leadership team. But everyone who follows the legislature understands that given the economic crisis the state is in, the nation, legislative leadership is going to use most of its political chits, legislative chits, for that issue, dealing with the economic crisis, first, foremost, and possibly exclusively," said Isaacson. "For example, if House leadership decided it needed to raise taxes this year to fund vitally important programs, that would require the leadership to put pressure on conservative legislators, and that's where they'll make a determination, are they going to put pressure on them for a vote to keep the state running or a vote for a bill we consider important? ... We can't know how they're going to weight [the transgender bill] because we can't determine in the short run what things are important they're going to pressure legislators for. But as a rule of thumb I would say we cannot afford the luxury of assuming that just because leadership is with us the bill will move."

One advantage for proponents of the trans rights bill in the current economy is that it costs nothing for the state to implement, said Isaacson.

"And there aren't many bills and measures legislators are dealing with that don't cost money. So we say, you want to do the right thing this year, if you want to do a good thing, if you want to improve things in the state and make them more fair and more just, this is an easy place to start," said Isaacson.

But Wilmot said given the state of the economy, proponents of a wide range of pieces of legislation would be making the case that their particular bill costs nothing.

"There's no money. So anything that's going to move, unless the price tag is small, is going to be cost free or cost deferred. .... There's a lot of things with no cost that are filed every year," said Wilmot.

Downing believes convincing legislative leadership to support the bill will be far less of a challenge than making the case for prioritizing it in what is already a "jam-packed schedule" for the current legislative session. He said between the economy and other issues including transportation reform and ethics reform, "All of a sudden the oxygen in the State House can get eaten up pretty quickly."

Sciortino said it is too early in the session to tell how much of a priority the transgender rights bill will be for DeLeo, but he said the speaker's comments in favor of the bill are a positive sign.

"We're lucky in that we don't have to convince anyone that we have the majority support once it comes to the floor of the House, but we have to get it there in the first place. ... I think it was really heartening to hear [DeLeo's] words at the MassEquality Gayla where he referenced the importance of passing this legislation, so I'm feeling optimistic," said Sciortino.

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