It has been over a year since conservatives failed to collect enough signatures to challenge California’s law protecting transgender students (AB 1266) with a referendum. AB 1266 guarantees transgender students full participation in all facilities and activities in accordance with their gender identity. Conservatives are still fighting in court to have their signatures validated, but the law is in place in the meantime — as are the many school policies that long predated the statewide law. Now, though, they have proposed a new law that will ban transgender people from using the proper bathrooms in government buildings, including schools and universities.
The so-called “Privacy For All” coalition has introduced the “Personal Privacy Protection Act” for consideration as a ballot initiative. It would require that “a person shall use facilities in accordance with their biological sex in all government buildings.” Though never using the word “transgender,” it seeks to erase transgender people by defining “biological sex” as “the biological condition of being male or female as determined at or near the time of birth or through medical examination.”
The blanket ban on transgender bathroom usage includes not only an enforcement mechanism, but an incentive to police other people’s gender. Modeled after a bill that failed in Kentucky earlier this year, the Act would create a civil claim against individuals for using the restroom in accordance with their gender identity, as well as against whatever government entity allows them to do so. “Such claim includes equitable relief and damages up to a maximum of three times the amount of actual damage but in no case less than $4,000, and attorney’s fees that may be determined by a court,” the proposed initiative reads. Anybody “whose privacy was actually violated” — presumably just by seeing a perceived-transgender person in the bathroom — or who decided not to use a bathroom because there was a perceived-transgender person inside would find relief under this claim. In other words, the law would place a bounty on transgender bathroom usage.
The breadth of the initiative far exceeds a repeal of AB 1266. By imposing a restriction on all government facilities, it would overturn all school and university policies that protect transgender students. Respecting transgender identities in any government-run facility would become illegal, and citizens would be encouraged to hunt down transgender people trying to pee in peace for a cash reward.
In an interesting sidenote, the initiative also hopes to circumvent a precedent established by the U.S. Supreme Court in the Proposition 8 case, which was dismissed because proponents did not have standing to defend it. The bathroom policing initiative declares, “If the Attorney General fails to mount a defense of the Act against legal challenge, or appoint a special Attorney General to do so, initiative proponents shall have the right to act as the agent of California for purposes of any necessary defense of this Act against legal challenge.” Whether including this language is constitutional — or would make a difference in federal court — is unclear, but it certainly projects that the coalition is committed to fighting transgender equality for years to come.
“Privacy for All” seems to be a rebrand of what was previously known as “Privacy for All Students.” The coalition included anti-LGBT organizations like the Pacific Justice Institute and the Capitol Resource Institute, and the latter is clearly still connected given its executive director, Karen England, issued the press release announcing the new initiative. England has separately been lobbying for a similar anti-transgender bill in Nevada.
England hopes California voters will have two chances to vote against transgender equality. “We hope to wrap up the court battle over the AB 1266 referendum and place that on the ballot,” she explained, “but we also expect to have this new initiative before the voters at the same time.”