On December 26, the Washington State Human Rights Commission enacted new rules guaranteeing access to bathrooms and other facilities on the basis of gender identity, and conservative lawmakers are now scrambling to find a legislative solution to undo these protections.
The new nondiscrimination rules cover a variety of clarifications related to both sexual orientation and gender identity, but the section that most concerns conservatives addresses “gender segregated facilities.” Any employer with eight or more employees must allow individuals access to such facilities that are consistent with their gender identity. Anyone who expresses discomfort should be pointed to a separate or gender neutral facility, and no one should be removed from a restroom for their identity. Schools should similarly make their facilities inclusive.
“This is the next step in this war on gender,” said Joseph Backholm of the conservative Family Policy Institute of Washington. His organization attacked the new rules, describing transgender people as people “confused about their gender” and misgendering them. “Sexual predators look for opportunity,” he wrote. “This provides it.” Backholm has encouraged people to call their lawmakers to complain, and some are already responding.
For the past two weeks, Rep. Graham Hunt (R) has talked about nothing except this issue on his social media. Last week, he introduced HB 2589, which amends the Washington Law Against Discrimination to include a new exemption that allows any entity to ban entry to a person “if the person is preoperative, nonoperative, or otherwise has genitalia of a different gender from that for which the facility is segregated.” In other words, it would undo the Commission’s new rules and makes them unenforceable.
“I’ve tried to make this about genitalia,” Hunt admitted to the Heritage Foundation’s Daily Signal. “If you don’t have the parts… if you don’t have the plumbing, then you don’t go in.”
In an interview earlier this month, Hunt made clear he sees male genitals as a “security concern” in and of themselves. “If you’re non-operative or pre-operative, having access to a facility that is different from the genitalia that you have, that’s where the security concerns come in.”
Like Backholm, Hunt contends that the rules somehow enable sexual predators access to facilities. On his Facebook account, he has repeatedly referred to various incidents of men cross-dressing to gain access to women’s facilities, but he never notes that they were all arrested for illegal activities — activities that remain illegal even with protections for people who are actually transgender women. Such protections have existed in other states for years and in no way have actually increased or enabled illicit behavior like he claims.
“I see this as a privacy, safety and a security issue,” he wrote in one post, proceeding to argue that he has been unfairly painted as being anti-transgender. “I am concerned by the language used by the Human Rights Commission that says if you are uncomfortable with somebody who is of opposite gender using the facility with you then YOU should leave and find somewhere else to change, use the restroom, shower, etc. I don’t like the thought that one groups [sic] rights trump the rights of another.”
Hunt isn’t alone. Sen. Doug Ericksen (R) is also planning legislation to reverse the Commission’s rules. In fact, his bill is expected to ban the agency from initiating any further rules related to transgender inclusion in sex-segregated facilities. He believes individual entities should be able to make their own decisions on the matter, even if that’s profiling and discriminating against transgender people. “Isn’t that a unique thought, that individual businesses, individual school districts can make the choices that are best for them?” he joked with The Daily Signal.
Ericksen similarly worries specifically about genitals, explaining, “I shouldn’t have to worry about my young daughters having to come face to face with things that they should not have to be exposed to at their age.”
None of the opponents of the rules have indicated which facilities they believe transgender men should use. Though they were assigned “female” at birth, transgender men often take on particularly masculine appearances as a result of their hormone therapy. Hunt, Ericksen, and Backholm’s policy positions would require these men to use the women’s room.
Ericksen’s bill has not yet been filed, and Hunt’s seems to have already been stalled by Democrats. Rep. Laurie Jinkins (D), the openly lesbian chair of the Judiciary Committee, is currently refusing to even hold a public hearing on his bill. She has described the backlash against the rules as “a lot of fear-mongering.”
“It is already illegal for men to go into women’s restrooms with some intent to harm someone. That is criminal and it should be prosecuted. To try to equate these things is unconscionable in my mind,” she told The Stranger. “If there’s somebody in the locker room who is inappropriately engaging with someone else, then stop it and tell whoever runs the locker room about it. Call 911 if you need to. But if someone is just in the locker room, minding their own business, changing, it’s just beyond me why people want to make up theoretical problems that don’t exist.”
Washington lawmakers first added “gender identity” and “gender expression” to the state’s list of protected classes way back in 2006. The Human Rights Commission held several public work sessions in 2012 about how to implement the law, and very few people showed up. The new rules are simply the final implementation of a law that passed 10 years ago.
Another new bill, HB 2782, has been filed to try to counter the Human Rights Commission's new rules. Introduced by Rep. Brad Klippert (R) and Tom Dent (R), the bill asserts that bathrooms shall be divided according to anatomy and DNA:
Nothing in this chapter or in any other provision of state law grants the right to any person who possesses male anatomy or male deoxyribonucleic acid (DNA) to enter into or use a public or private facility that is open to the public and is or has been segregated by gender for the private use of those who possess female anatomy or female deoxyribonucleic acid (DNA) including, but not limited to, a bathroom, restroom, toilet, shower, locker room, or sauna.
Nothing in this chapter or in any other provision of state law grants the right to any person who possesses female anatomy or female deoxyribonucleic acid (DNA) to enter into or use a public or private facility that is open to the public and is or has been segregated by gender for the use of those who possess male anatomy or male deoxyribonucleic acid (DNA) including, but not limited to, a bathroom, restroom, toilet, shower, locker room, or sauna.
The bill does not address people who are intersex or who may have chromosomes that do not match the XX/XY dichotomy.