Wednesday, April 8, 2009

The bathroom canard lives on

The incessant refrain of those who insist that anti-transgender discrimination should remain legal is "bathrooms, bathrooms, bathrooms." Prohibiting discrimination in jobs, housing and public accommodations is, to hear them tell it, an assault on the privacy and safety of women in children in loos everywhere. Perhaps the most remarkable thing about this parade-of-horribles argument is that it keeps popping up, and seemingly keeps working, despite the fact that more than a dozen states and a hundred localities have proven it false.

The bathroom canard was the main argument of the campaign to repeal my Maryland county's antidiscrimination law last year, before the state's high court ruled that the issue did not belong on the ballot. A similar campaign, based essentially on a "bathrooms" message, did go to the ballot in Gainesville, FL last month, and lost 58%-42%.

But while Gainesville voters rejected this tactic, legislators in New Hampshire apparently bought it, voting 181-149 in the state House to kill an antidiscrimination bill. This was the very same week that the House there passed a marriage equality bill 186-179. (Comparing those numbers shows that the margin by which the antidiscrimination bill failed was smaller than the number of lawmakers who cast a vote on marriage but didn't cast a vote at all on antidiscrimination! That certainly tells you something .) Following this success for proponents of discrimination, the same tactic is now being pushed heavily in Connecticut and Massachusetts.

Of course, this is part of a bigger picture of opponents of LGBT equality seeking to frame equal protection of the law as somehow being a threat to individual rights; the frequent arguments that marriage equality threatens the religious liberty of churches that reject same-sex love are just as dishonest. But they're also easier to know how to respond to - as, for example, the Iowa Supreme Court so eloquently did in the closing paragraphs of its recent marriage decision.

But I think it's harder to know what to say to an uninformed audience in response to the bathroom canard, because from the point of view of people who don't understand or accept trans identities, nondiscrimination ordinances would permit "men" to use the ladies' room and vice versa. Moreover, definitional questions about who "belongs" and who doesn't really seem to bother people. Montgomery County legislators tried to dampen these objections by specifying that the law would not apply to places that were "distinctly private and personal," opponents said this was too vague and implied that nothing short of providing carte blanche for discrimination in restroom use would be satisfactory.

Here are some talking points on the issue of from Transgender Law and Policy Institute, similar ones from the Sylvia Rivera Law Project that address these questions. They rightly focus, I think, on a handful of points:
  • All transgender people have to use the bathroom somewhere.
  • Using bathrooms consistent with their birth-assigned gender just does not make sense for trans people: it would often be more upsetting for everyone involved, and would put the trans person at risk of harassment or violence.
  • People who enter a bathroom with the intent to assault others, or who stalk or harass others in bathrooms, are and will remain punishable, regardless of gender.
  • Trans and non-trans people are not going to be watching each other potty: bathroom stalls have locking doors for a reason.
  • There is no evidence of threats to safety in privacy in the many jurisdictions that have adopted these laws.
One wonders how this is going to play out in Congress when a trans-inclusive ENDA is finally introduced. The Alliance Defense Fund's token witness at the historic first House hearing on anti-trans discrimination last year pushed the bathroom line, but I hold out at least some hope that moderate members of Congress can be convinced not to take these objections seriously.

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