Massachusetts faces grueling, two-year fight over where trans people can pee

The commonwealth’s new protections are under attack from multiple fronts.

CREDIT: AP Photo/Steven Senne
CREDIT: AP Photo/Steven Senne

Perhaps because it was the first to have marriage equality, Massachusetts has developed a reputation for being on the forefront of queer rights. But after finally approving transgender public accommodation protections this year, it’s set to become a significant battleground for trans rights for years to come, with multiple challenges advancing against the new law.

This week, opponents of LGBT equality announced that they had successfully collected enough signatures to ask voters in 2018 whether to repeal the ordinance, which prohibits businesses and other public accommodations from discriminating against transgender people.

Keep MA Safe, a campaign of the Massachusetts Family Institute, bragged about the accomplishment:

We are extremely grateful to the thousands of people who courageously signed the petition, at times in the face of threats and intimidation. As voters began to learn about the full impact of this law, we saw them often move from alarm to action.  We look forward to spending the next two years continuing to raise awareness about the dangers of this law and making sure voters are fully educated on what is at stake. We remain committed to defending the fundamental rights to privacy and safety, particularly for women and children, in our Commonwealth.

That’s going to be a long two years of anti-trans rhetoric. When collecting signatures, volunteers were instructed to call the nondiscrimination law “the Bathroom and Locker Room Bill.” The campaign’s page is dripping with anti-trans language and warnings that women will be put at risk. “All one would need to do to abuse this law is decide, in their own mind, that they are the opposite sex for an hour, day, year, or whatever amount of time they deem appropriate,” the site claims, despite the fact that gender identity is, by definition, not something that flips like a light switch, but a consistent aspect of person’s life.


The site also argues that “the law would create an enormous public health risk by enabling sexual predators. If men can enter women’s restrooms, what prevents a child predator from legally awaiting his prey in places where little girls or boys are most vulnerable?” Prior to Massachusetts, 18 other states and Washington, DC had identical protections, with zero evidence of increased predation and zero examples of the law being abused in this way. Nevertheless, the site also links to a list of “privacy violations” in women’s facilities, all of which have been debunked as either not being committed by transgender people or not actually being a violation of anyone’s privacy.

While the campaign to repeal the protections rages on for the next two years, another fight will be playing out in the courts. A group of churches, represented by the anti-LGBT Alliance Defending Freedom (ADF), have filed a federal lawsuit claiming that the law is unconstitutional as applied to churches and ministers.

The complaint, which mirrors a similar ADF suit filed against Iowa’s gender identity protections, argues that the law infringes on religious liberty by treating houses of worship as “public accommodations” that are not allowed to discriminate against transgender people. According to guidance issued by the Massachusetts Commission Against Discrimination, “Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.” The churches claim that there is no such thing as a secular event — that every activity that is open to the public is a “religious expression,” including spaghetti suppers.

These churches and their ministers want to have written policies that prohibit transgender people from using restrooms that match their gender identities, policies that they would publicly promote. The law prohibits advertising an intention to discriminate in such a fashion.


They also want to enforce those policies, as the suit explains: “If an individual wanted to use the sex-specific facility of the opposite biological sex, the Churches would inquire and question that individual and prevent the individual from entering the opposite sex facility.” The complaint offers no context for how the churches would determine who should be “prevented”or how they would go about “preventing” that individual’s access to the bathroom.

Interestingly, the churches claim the law violates their beliefs by asserting things the law doesn’t even say. “Requiring the Churches to allow individuals to use the facilities reserved for the opposite sex forces the Churches to speak a message that they do not want to speak; namely, that sex is fluid, that it is based on subjective experience, and that God approves of biological males using restrooms and showers with females, and vice versa.” Gender identity is neither subjective nor fluid, and the churches do not explain where God expressed opinions about restroom usage.

ADF requests a ruling declaring the law unconstitutional as applied to all churches and pastors in the state. This would mean that transgender people could be subject to legalized discrimination any time they enter a church, and that would include when churches are used as polling places, as many across Massachusetts are.

ADF has filed numerous lawsuits across the country challenging LGBT nondiscrimination protections.