Given that North Carolina somewhat diluted its anti-transgender law and the Texas’ legislature recessed without passing similar legislation, it may seem as if the bathroom wars are on hiatus. On the contrary, two states — Massachusetts and Montana — will face ballot initiatives of their own next year, rolling back basic rights for transgender people if they’re passed.
Massachusetts’ fight is a novel attack on transgender rights, and equality proponents are trying to fight Montana’s initiative in court to keep it from being on the ballot at all. In both states, conservatives are using the same smear tactics to demonize transgender people as a threat to others’ safety.
The proposed law mirrors North Carolina’s HB2, defining “sex” as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth” and dictating that all government-run restrooms and locker rooms must be separated accordingly. It would effectively segregate all transgender people in government buildings, schools, and universities, with single occupancy facilities available only “for special circumstances upon request.” It would also entitle individuals who felt their privacy was violated to sue for monetary damages.
The ACLU of Montana has been working to undermine the initiative. In September, it succeeded in asking the state Supreme Court to mandate some changes to the initiative’s language so that prospective signers would better understand its impact. This week, the ACLU, representing several transgender individuals and joined by the cities of Bozeman and Missoula, filed a new suit to try to keep the initiative from reaching the ballot.
The lawsuit argues that the initiative is unconstitutional because it “legalizes discrimination.” As Roberta Zenker, one of the trans plaintiffs, explained to The Missoulian, “What better way to discriminate against a class of people than to effectively exclude them from public places.” The ACLU hopes the state Supreme Court will rule the measure invalid before the state’s citizens even have the opportunity to vote for it.
The Montana Family Foundation criticized the lawsuit, claiming the initiative is about protecting girls — not-so-subtly rejecting the legitimacy of transgender identities in the process. “High school girls shouldn’t be forced to shower in front of a boy, even if he does think he’s a girl,” president and CEO Jeff Laszloffy said in a statement. “The Montana Locker Room Privacy Act is about protecting privacy, safety, and dignity for all Montanans. Males and females use different locker rooms. This isn’t some new idea, it’s just common sense.”
The group has until June to collect some 26,000 signatures to qualify I-183 for the 2018 ballot.
Last summer, Massachusetts Gov. Charlie Baker (R) signed into law legislation that extended public accommodation protections to the transgender community. Prior to that, “gender identity” was only protected in employment and housing in Massachusetts, but not in public spaces. The new law filled the gap, extending the full nondiscrimination protections that had already covered other classes like race and sexual orientation to transgender people as well.
But following its enactment, the Massachusetts Family Institute (MFI) collected signatures to challenge the law with a referendum on the 2018 ballot. This will be the first time ever that U.S. citizens will be asked to vote on repealing a trans rights law. And it could prove to be a confusing campaign, because even though the referendum was brought by opponents of transgender equality, those who agree with the law will be asked to vote “Yes” to keep it on the books.
The Institute’s anti-trans campaign, “Keep MA Safe,” is churning out propaganda to convince Massachusetts voters that protecting transgender people somehow requires endangering women and girls. Their examples of how this would happen refer almost entirely to cisgender men committing acts that are still illegal under the law, like spying on or taking photos of people in restrooms. They thus have nothing to do with the law against which they’re advocating.
Simultaneously, MFI is advocating for a legislative solution to undo the protections. One proposed bill (H.2321) would simply repeal the 2016 law, while another (H.2281) would require that access to public accommodations be dictated by “an individual’s anatomical sex of male or female, regardless of that individual’s gender identity.” Both bills were scheduled for hearings this week, but it’s unclear that they have any chance of advancing.
It’s also unclear that the initiative has the support necessary to repeal the law. Even before the law was enacted last year, 53 percent of likely Massachusetts voters supported the legislation, with only 30 percent opposed and 15 percent undecided. The law has now been in effect for well over a year, and it’ll have another year on the books before voters see it in the ballot. Voters will likely see that none of the consequences MFI warns about will come to fruition, just as they haven’t in states that have had such protections for well over a decade.
Regardless of the outcome of either ballot initiative, both will likely have consequences for the trans communities in their respective states. As research on the many votes states held on same-sex marriage bans has shown, public debates and votes on civil rights have a negative psychological impact on the group being debated, as well as their friends and family. This holds true whether they’re involved in the campaign efforts or not.
Australia is currently seeing the exact same effect play out as it holds a nationwide poll on the question of same-sex marriage. Counselors there that serve LGBTQ youth have seen a 20 percent increase in calls, with most of the calls referencing the marriage poll. Likewise, the campaign sparked such antipathy that the Australia parliament passed emergency legislation outlawing anti-LGBTQ intimidation and threats of harm.