If you live in Houston, you’ve probably spent the last several weeks listening to conservatives talk about the potty.
On Tuesday, Houston voters rejected the Houston Equal Rights Ordinance (HERO) in a low-turnout election where only slightly more than a quarter of the city’s voters actually cast a ballot. Those that did turn out got to decide the fate of a broad civil rights ordinance that targeted a wide range of discrimination, from race to religion to military status to sexual orientation and gender identity.
If you paid any attention to the campaign against this law, however, you probably knew it by another name — the “bathroom ordinance.”
Anti-LGBT groups fought HERO by claiming that it would enable “any man at any time” to “enter a women’s bathroom simply by claiming to be a woman that day.” Ads featured pedophiles locking themselves in a bathroom stalls with young girls. Texas Gov. Greg Abbott (R-TX) summarized his case against HERO in five words — “No men in women’s bathrooms.”
This is not a new tactic. Indeed, it was used once before in a high-profile campaign against equality. Four decades ago, the Equal Rights Amendment — which would have required courts to treat laws that engage in sex discrimination with the same high level of skepticism applied to race discrimination — seemed all but certain to become part of the Constitution. Thirty-four of the thirty-eight states needed to ratify the amendment had agreed to do so. Then conservative activists organized hard against this amendment. Many of them also gave it a new name, the “Common Toilet” law.
Like the anti-LGBT activists who united against HERO, the ERA’s anti-feminist opponents offered similarly outlandish claims about what would happen if the ERA became law. Many conservative activists rallied behind a claim that a ban on official sex discrimination would necessarily forbid segregating bathrooms by gender. As the feminist scholar Jane Mansbridge wrote in her postmortem of the amendment fight, Why We Lost the ERA, “the unisex toilet issue fed the fervor of the anti-ERA forces by giving them something absolutely outrageous to focus on.” Among other things, “it could conjure up visions of rape by predatory males,” while igniting smoldering passions in a South that had recently experienced “the historical trauma of racial integration.”
Evidence that anyone has ever been sexually assaulted by a trans woman in a bathroom — or, for that matter, by a cis man pretending to be a trans woman in a bathroom — is extraordinarily thin. In Oregon, which has prohibited gender identity discrimination since 2007, the relevant agency “has encountered zero allegations of LGBT assault related to this public accommodation protection.” Lawmakers who oppose bans on anti-trans discrimination are flummoxed by requests for examples of such an assault. The likelihood that a woman will face this kind of assault appears to be exactly the same as her chances of being attacked by a unicorn.
Opponents of equality, however, have often been willing to spin tall tales of dangerous bathrooms based on the thinnest of evidence supporting such tales.
In 1971, for example, Harvard Law Professor Paul Freund published a law review article that briefly drew a comparison between feminism and the movement for racial justice that mentioned bathrooms. “One of the prime targets of the equal-rights movement has been the color-segregated public rest room,” Professor Freund wrote. “Whether segregation by sex would meet the same condemnation is at least a fair question to test the legal assimilation of racism and ‘sexism.’” This brief passage in Freund’s article was cited by ERA opponents as proof that “common toilets” could become a reality.
According to Mansbridge, the ERA’s proponents were aware of Freund’s statement, and the proponents who testified before Congress unanimously rejected the claim that this was their goal. They also denied that the ERA would bring lead to mandatory unisex bathrooms.
As a matter of constitutional law, the ERA’s proponents were correct. Civil rights activists did not demand integrated restrooms because justice necessarily flows from all people having access to the same toilet. They did so because Jim Crow bathroom facilities were segregated entirely because of a broader effort to maintain white supremacy. “Separate educational facilities are inherently unequal,” the Supreme Court explained in Brown v. Board of Education. The same thing was true of bathrooms, water fountains and train cars that set African Americans apart because they were deemed unworthy of the facilities offered to white people.
Gender segregated bathrooms simply do not share this history. There’s no evidence that women and men use separate toilets because of a deliberate strategy to maintain the patriarchy. Unlike racial segregation in the Jim Crow South, offering men and women different toilets does not render their restrooms “inherently unequal.”
It’s also worth noting that, while the ERA never became part of the Constitution, the Supreme Court has since held that laws that engage in sex discrimination may only survive if they are backed by an “exceedingly persuasive justification.” That means that women currently enjoy nearly as much protect against official sex discrimination as they would have enjoyed if the ERA had been ratified. Yet, somehow, we still have gender segregated bathrooms.
“One Set Of Genitals”
Yet, despite the fact that the ERA had nothing to say about separate bathrooms, fears of a common toilet law transformed many opponents into activists against the amendment. Often, these activists would offer false evidence in an effort to prove their claim that the ERA meant men and women peeing together. One anti-ERA advocate claimed that Montana’s state-level ERA forced a mining camp to implement unisex bathrooms, when in reality there weren’t even any women at that camp. Another claims that, shortly after Maryland passed an ERA, lawmakers responded with legislation requiring unisex bathrooms. This was true, to a point. The bill was actually introduced by ERA opponents seeking to highlight what they viewed as problems with formal sex equality.
The “common toilet” smear, moreover, was often coupled with even more outlandish allegations. A pamphlet highlighting Maryland’s so-called common toilets bill also highlighted a similar piece of legislative showmanship that purported to require pregnant women to serve in the state militia. Another warned that, under the ERA, women would gain the right to go topless anywhere that men could walk around without their shirts. In a preview of how anti-feminist tactics would later be wielded to fight LGBT equality, the organization led by Phyllis Schlafly, possibly the ERA’s leading opponent, published literature warning of the “ERA-GAY-AIDS-CONNECTION.”
There is, however, an important difference between how the bathroom smear was used against the ERA and how it was later used against pro-LGBT legislation such as HERO. Mansbridge writes that, while many of the most engaged anti-ERA activists rallied behind fears of unisex bathrooms, the argument largely flopped with lawmakers and the public at large. Surveys showed that only 3 percent of the ERA’s opponents listed single-sex restrooms as the first, second or third reason for their opposition. The subject of common toilets rarely came up in legislative debates, and when it did come up, it was often raised by the ERA’s supporters as an example of the unreasonableness of the other side. Schlafly abandoned references to unisex toilets early in her anti-ERA advocacy, eventually telling lawmakers “that is not one of my arguments against the ERA.”
The bathroom smear, by contrast, is the centerpiece of the case against trans equality. Many activists and state lawmakers seem to be in a competition to draft the most overbearing legislation protecting every person’s right to move their bowels far away from people who have different kinds of genitals. One ballot initiative would allow individuals to collect a $4,000 bounty against trans people who violate this so-called right. Another bill makes it a crime for anyone to use a restroom that does not correspond with the gender that was “established at the individual’s birth.”
The bathroom smear, moreover, is not simply a reason for pro-equality lawmakers to mock their opponents, as it was during the fight over the ERA. It has effectively deterred liberal lawmakers from pushing for full equality. In 2010, for example, at a time when Democrats enjoyed commanding majorities in the House and the Senate, pro-equality lawmakers struggled to find the votes they needed to enact a federal ban on anti-LGBT employment discrimination. Rep. Barney Frank (D-MA), one of the few gay members of Congress, admitted that the bill’s protections for trans workers were watered down in order to satisfy concerns raised by so-called moderates.
Under the watered down legislation, Frank told Roll Call, people with “one set of genitals” will not be able to use the same bathroom as people with a different set of genitals.