As I write this, the LGBT community is struggling with a situation in Maryland where the provision for “public accommodations” has been removed from a bill that proposes to extend human rights to trans people, due to the ongoing “bathroom bill” panic-generation tactic. In Canada, Bill C-389 passed despite this same fearmongering, but faces an increasingly precarious situation in the Senate. In Montana, the state is proposing legislation that aims to erase the protections for all LGBT people that had passed the previous year in the City of Missoula, where the “not my bathroom” rhetoric failed… and where most pretexts of it have now been dropped in the battle against equality. Elsewhere in North America, potty panic has been used to stir up an emotional “ick” response to any legislation that protects trans people, and even some non-inclusive LGB protections. And once the emotions have been engaged, logic has to work five times harder to dispel the myths.
But in Maryland — which in 2007 was the birthplace of this wave of “bathroom bill” spinmongering — the tactic needs to be addressed head-on before it forever changes the face of how we accord and apply human rights. Because the recent removal of “public accommodations” affects far more than washrooms, all because of an irrational fear of the possibility of behaviour that isn’t actually facilitated by trans protections and doesn’t actually happen in real life.
Human Rights In Principle
The whole premise of human rights is that all people should have equal access to employment, housing, medical and social services, and opportunities. The understanding is that people should be judged on their individual merits or faults, and not on characteristics that other people may have prejudicial associations about. We specify classes because bigoted people keep trying to make excuses to assert exceptions to the rule. You shouldn’t have to tell society that it’s wrong to place life barriers for people just because others find their body weight objectionable, for example, but as it becomes increasingly demonstrated that discrimination persists, it becomes apparent that you do. Without specifying these classes, a false equivalence is asserted in which one’s human rights can be trumped by another’s irrational fear of having to coexist with them.
Because classes are open-ended (i.e. “race” includes white people as much as non-white people), the whole idea that people in codified classes have “special rights” is a myth. The intent is that a person should not be excluded from participating in society because of assumptions or constructions associated with a trait, but rather their own merits or failures should form the basis of how we decide to interact with them. The playing field needs to be levelled to that there is equal opportunity in principle (although it doesn’t always happen in practice).
You don’t narrowly define these classes: once you start doing that, you start codifying into law when it becomes legally acceptable to discriminate against a group of people. That is why when you include a class like “disability,” you don’t make an exception for people with mental illness. There is an example of this in the ironically-named Equality Act, in the UK, where legislation outlines when it is considered perfectly lawful to disenfranchise trans people.
The good news is that this has not happened in the current situation in Maryland. Although public accommodations have been dropped from the bill, there haven’t been any codified exemptions to create legally-sanctioned discrimination. Consequently, areas not outlined in legislation become a matter for the courts, and the incrementalist perspective expresses hope that if there is no opportunity to introduce a better bill later, then the judicial system will at some point read in these protections on the basis of what is already codified in law. LGBT Marylanders who have taken the “anything is better than nothing” approach have this to place their hope in, and it’s not substanceless.
However, we know that anytime unabashedly homophobic and transphobic people perceive that they can push LGBT people into the margins, they will almost always attempt to do so. There is no guarantee that public accommodations will be read in or added later, and in the meantime, there will be people falling through the cracks of an incomplete bill.
There is also a concern that if Marylanders see it as acceptable to drop public accommodations from trans human rights legislation, then future legislators will see it as reasonable to do the same. In a way, this move surrenders the washrooms to our opponents.
And more. As Monica Roberts points out, “public accommodations” cuts a far wider swath than simply gendered stalls, showers and urinals:
A place of “public accommodation” is defined as “an establishment either affecting interstate commerce or supported by state action, and falling into one of the following categories: (1) a lodging for transient guests located within a building with more than five rooms for rent; (2) a facility principally engaged in selling food for consumption on the premises, including such facilities located within retail establishments and gasoline stations; (3) any place of exhibition or entertainment; (4) any establishment located within an establishment falling into one of the first three categories, and which holds itself out as serving patrons of that establishment; or (5) any establishment that contains a covered establishment, and which holds itself out as serving patrons of that covered establishment. Bishop v. Henry Modell & Co., 2009 U.S. Dist. LEXIS 104830, 39-40 (S.D.N.Y. Nov. 9, 2009)
In other words, if this bill is passed and I travel to Maryland, I potentially lose my rights when dealing with hotels, restaurants, theatres, shopping malls… all because irrational people assume that being trans somehow automatically makes me a sexual predator.
The Porcelain Red Herring
That’s the infuriating part of all of this. I’m transsexual, and have been using the womens’ restroom ever since I transitioned, years ago. It has never been illegal for me to do so. Making it an issue at this point in time is archaic on a level that is mind boggling. The Transgender Law and Policy Institute notes around 130 jurisdictions in the US where explicit legal inclusion for transgender and transsexual people exists (some back to 1975), and yet the only incident of the kind being imagined by opponents was staged by opponents (more on this in a moment). The conflation of trans people with sexual predators is a fallacy.
It’s also ludicrous to speculate that a cisgender / cissexual sexual predator would risk drawing attention to himself by crossdressing, in order to access a washroom that he’d have better luck just sneaking into when no one is looking. This is simply a meme designed to generate a quick panic response, and exploit the “ick” factor for people whose idea of what trans is hasn’t evolved past Shirley Q. Liquor.
In the US south, decades earlier, there was reluctance to desegregate washrooms because of “delicate sensibilities” and beliefs in the inferiority and impurity of entire groups of people. In the advent of HIV, there were ignorant comments about gay men in washrooms, borne by fears that had not yet been dispelled by science that AIDS could be contracted from a toilet seat. I even remember discussions in the 1980s when disabled washrooms were first proposed, in which people expressed their “discomfort” of encountering amputees in intimate spaces (which is a pretty chilling and disgusting objection nowadays, isn’t it?). And every time, there was hysteria. Every time, it was unfounded. Every time, our society ultimately moved toward progress, inclusion and accommodation, anyway, and bigots just had to bloody well get over it. And every time, we looked back and realized that the potty panic was just plain offensive.
Exactly Because This Persists
What people are failing to see is that potty fear is in fact the strongest argument FOR trans human rights inclusion. And I strongly believe that the moment we realize that and confront Bathroom Bill rhetoric head-on and turn it back on the homophobes and transphobes, we will have human rights opponents tripping over themselves to disavow it.
If we are prepared to stand up and say something.
Human rights protections are necessary exactly because this irrational fear persists. It’s necessary exactly because trans people still get conflated with sex predators and child predators, or labeled as “sick,” “perverse,” and “freaks.” It’s necessary exactly because people become so clouded with assumptions and myths that they argue for our deliberate exclusion from human rights under the pretext that granting them would be “dangerous” or “scary.” It’s necessary exactly because this bias is so entrenched that people think nothing about broadcasting it openly as though fact. It’s necessary exactly because this “ick factor” response is seen as justification for not allowing an entire group of people to share the same space, to terminate their employment or to evict them. It’s necessary exactly because it is so pervasive that discrimination becomes not only likely but inevitable — especially if there is no explicit direction in law to the contrary on the matter.
Politics is local. In 2007, Montgomery County, Maryland teleported itself into the middle of the conflict between far right Christian Nationalists (as opposed to Christians, some of whom are affirming) and LGBT people, when the NotMyShower website was established and “Citizens for a Responsible Government” (CRG) took the “ew, ick” impulse that cisgender people had about their mythic impression of trans people, mixed it with their feeling of vulnerability in washrooms and came up with the modern version of the “Bathroom Bill” formula. The meme was originally about showers (where actual nudity could theoretically happen) before they discovered that making it about public restrooms better enabled their scaremongering to go viral. This probably wasn’t a previously unheard-of objection, but it was polished and perfected into a political technique in Maryland.
Complete with a washroom invasion at a gym and spa in Gaithersburg. Here is how it was reported on by a local ABC television affiliate, on Tuesday January 15, 2008:
A man dressed as a woman walked into the women’s locker room at the Rio Sport and Health Club in Gaithersburg Monday, spawning concerns over a new controversial law designed to protect transgendered people.
Around 1 p.m. Monday, a man wearing a dress walked into the women’s locker room surprising Mary Ann Ondray who was drying her hair. “I could see his muscles, I could see his large hands. He was wearing a blue ruffled skirt that came down to above the knee.”
The male left without saying anything, but Ondray says, “I was very upset, I’m still upset. There’s a lot he could’ve seen.”
Club officials say he is a male club member, but it’s still unclear why he was dressed as a woman or why he didn’t use a designated family restroom.
(Incidentally, the use of a single-stall locking restroom is in fact the policy for pre- or non-operative trans people at the health club in question)
Speculation abounded almost immediately afterward, and was so blatantly obvious that CRG’s Theresa Rickman eventually admitted to having staged the incident — but it’s still sometimes pointed to by opponents, since the media didn’t as widely report the deception:
THERESA RICKMAN: Yes, at Rio Sport and Health up in Germantown. A guy dressed as a girl went into the ladies bathroom. And, ah you know, essentially what uh, that was meant to get some media attention, you know, and the guy left immediately apparently, I mean but there was, this is the Rio Sport and Health Club, you know and Sport and Health has steam rooms, and there are ladies changing in those locker rooms, people in various stages of undress [laughing] all the time, so there’s lots a guy can see.
Transphobia has fomented in Maryland with a peculiar intensity in the past four years,where an odyssey unfolded which saw trans protections pass in Montgomery County, only to have opponents push a petition drive fiercely enough to put the option on the ballot for voters to repeal it… only for the courts to then recognize that enough of the petition’s signatures were questionable or likely to have been obtained under false pretenses to invalidate it. Montgomery County also saw a murder attempt that was investigated as a hate crime in 2009, and attempts to destroy Dana Beyer’s political career.
Context is everything, and it’s important to recognize how the “Bathroom Bill” spin cycle progressed in Maryland, and where it differs or is similar to what happened elsewhere.
Transsexuals — those people who are primarily being villainized in the washroom territory dispute — face challenges to their very existence regularly during a transition process that is recognized by medical authorities as valid and necessary. Zoe Brain outlines quite vividly the kinds of hoops we need to go through when we begin our transition… and how it is far from a whim.
That’s not good enough for Charles McVety. He feels that:
“Bill C-389 is a danger to our children,” said Charles McVety, president of the Institute for Canadian Values. “If ‘gender identity’ is enshrined in the Criminal Code of Canada, any male at any time will be permitted in girls’ bathrooms, showers and change rooms as long as they have an ‘innate feeling’ of being female.”
If one has the innate feeling of having a doctorate — and the cash — on the other hand, why not?
McVety and other homo/transphobes started up the spin cycle almost from the moment that trans protections went to committee for second reading. Gwen Landolt of REAL Women of Canada tried to exploit mental health prejudices by repeatedly citing a pamphlet by the American College of Pediatricians (a legitimate-sounding medical body that screens its membership according to far-right views on abortion and homosexuality, and whose publication has been disavowed by the American Academy of Pediatrics — the accepted authority in ACP’s domain). The website No Apologies openly proclaimed allegations that trans people are “sexual predators and voyeurs.” The Association for Reformed Political Action (ARPA) Canada was notable among several online initiatives by automating the process so that with a click of a button, people who were sufficiently frightened by the rhetoric could click a button and mail every Member of Parliament with a prepared letter.
And although mainstream media — outside the Harper government -influenced Sun Media, which is currently trying to launch a preferentially-treated television network that is referred to as “Fox News North” — refused to dignify much of the washroom scare tripe (and sometimes printed notably positive editorials), trans voices were largely excluded the conversation about trans rights almost altogether. This happened despite the fact that trans people across Canada approached media with a willingness to speak on the issue.
But regardless of all of this, on February 9th, 2011, the Government of Canada passed Bill C-389, An Act to Amend the Canadian Human Rights Act and Criminal Code (gender identity and gender expression) on a narrow vote of 143-135. In a nation that hadn’t encountered “Bathroom Bill” spin before and had been somewhat insulated from similar discussions that happened south of the border, it had fared better… but still (thus far) failed.
Incidentally, McVety runs an organization directly funded by John Hagee and Focus on the Family, Landolt uses talking points that are almost verbatim those used by Andrea Lafferty of the Traditional Values Coalition (and derived from CRG), and Tristan Emmanuel — mentor to Timothy Bloedow and the original founder of both No Apologies and a centre dedicated to training Evangelicals and Christian Nationalists to try to form a biblically-driven government — now runs a company that publishes Matt Barber. If we don’t think these folks are trading strategies, we’re fooling ourselves.
Missoula, Montana: The Little City That Could
Alberta is very much a community caught between Montana’s ranchman culture, Texas oil culture and our trademark Canadian complacency. As well as being the birthplace of the Harper government and a hotbed for Christian Nationalism, we were home to the Stephen Boissoin “religious persecution” hate speech case heard around the world, provided a home (and tenure!) to a military psychiatrist who was accused of using horrific techniques to cure gays in South Africa, and witnessed the firing of a teacher by a publicly-funded Catholic school board that explicitly stated the termination was because of his transition to male. At some moments, we’re embarrassingly regressive, and yet there is a fiercely progressive streak among the public not often reflected by provincial politics or social issues. It is this stubborn live-and-let-live silent majority that has endeared me to Alberta and kept me here, and it is because Montana is quite similar in this regard that I had followed the events in Missoula closely.
To me, Missoula signaled the beginning of the end of the Bathroom Bill tactic. There, opponents took the (by this time) highly original approach of creating the NotMyBathroom website and engaged in several distortions. But there was a difference. With a little information, people saw through the fearmongering.
In a panel hosted by Forward Montana and featuring a Wyoming Republican, a pastor, a veteran and a past chairman of the Montana College Republicans, the latter stated in support of LGBT protections: “I cannot believe we’re fighting issues like this in 2010.” And although members of CrossPoint Community Church and senior pastor Dr. Bruce Speer disrupted a meeting of community religious leaders who came together to express support for the ordinance, the affirming leaders soldiered on, forming Flush the Fear, which declares:
“All people should be free from discrimination based on their sexual orientation and gender identity or expression. Faith communities value dignity, fairness, diversity, and justice, and we know our strength as a community is based on treating each other fairly and with respect. Our group will be a strong and peaceful voice for the full inclusion of the LGBT community in non-discrimination policy.”
Allies and affirming people of faith stood with us. Cisgender people who realized that they too were the focus of hatred for thinking outside the stereotypically male and stereotypically female boxes stood with us. And on April 10th, civic legislators passed an ordinance to protect LGBT people at a margin of 10-2. Don’t get me wrong — this didn’t happen without vile rhetoric and loud opposition… but enough people saw through it to do the right thing.
Once that happened, opponents of LGBT rights (because it wasn’t only trans people who the ordinance protected) realized they couldn’t use pee fear in an overt capacity, and pushed the state government to pass legislation that would invalidate Missoula’s ordinance under the pretext of making human rights protections consistent throughout the state, thereby avoiding confusion. If that sounds spurious, you’re not the only one. Especially when cast against the disgusting comments by Dr. William Wise during discussion of a concurrent bill to remove sodomy from the Montana penal code.
Although, that hasn’t stopped the “Bathroom Bill” meme from being used under the radar:
Sen. Bruce Tutvedt, R-Kalispell, defended the right “not to be overregulated.”
He said he has heard comments from people asking about whether a business, under the ordinance, could legally keep “a certain sector” out of a multi-stall public restrooms. It was an apparent reference to transgender men [sic] using women’s restrooms, an issue raised by some people testifying against the bill in hearings.
But ultimately, washrooms (which — like anywhere else trans protections exist — have not experienced an actual trans predator since the ordinance passed) were never the issue at all: refusal to coexist with lesbian, gay, bisexual and trans people was.
(Montanans who want to petition legislators or find out how they can be involved can find out info via the Montana Human Rights Network. The bill was recently amended to narrow it so that it specifically changed ONLY Missoula’s protections based on sexual orientation and gender identity)
So the struggle comes right back to Maryland, with a state-wide ordinance HB235. This time, because peoples’ concerns about washrooms had put intense pressure on her, Del. Joseline Pena-Melnyk (D-Prince George’s and Anne Arundel Counties) dropped a provision for “public accommodations” from it. Pena-Melnyk had sponsored trans-inclusive legislation since 2007, and this was reportedly a difficult decision — but ultimately, the support that she would have needed to overcome the “Bathroom Bill” meme just wasn’t there.
Noting that supporters were unable to get the bill out of committee during the past three years, [Equality Maryland Executive Director Morgan] Meneses-Sheets said most supporters believe an incremental strategy of advancing employment and housing protections for transgender people this year is a “far better” option than seeing the bill go down to defeat and having no protections at all.
An online petition has been started to have the provision reinstated and a Facebook group has been set up to”Tell Maryland Legislators NO to HB235 Omitting Public Accommodations.” Equality Maryland has come under fire for silencing critics of the move. On Tuesday, activists from Trans Maryland rallied outside the Supreme Court to try to have the provision reinstated (although commenters have questioned whether the rally might have been more effective at the MD state legislature).
Meanwhile, opponents continue to oppose the bill — this time, because it “redefines gender.” And even when acknowledging the removal of the public accommodations provision, they continue raising the specter of “bathroom rapes” by citing violent acts committed by people who aren’t trans at all and weren’t enabled in any way by an extension of human rights protections to trans people.
The underpinnings of every community’s political situation is always different from situation to situation. Maryland is not Canada is not Missoula is not ENDA. Toilet terror has been waged longer, fiercer and and more bitterly than anywhere on the planet so far. It is inevitable that some LGBT Marylanders will feel that something is better than nothing, at this point. But even if a best-case scenario unfolded for incrementalists and HB235 passed, with public accommodations being added in some way shortly thereafter (and before someone could be negatively affected by its absence), the act of removing the provision has already seriously fractured pro-trans forces in that state.
Missoula was the beginning of the end of washroom tactics… unless we wave the white flag of surrender.
So What is the Answer?
It’s one thing to condemn and criticize. It’s another to come up with a solution, and that is the challenge we face both in Maryland and anywhere the “Bathroom Bill” talking points are exploited. This is the moment we either rise to that challenge or turn on each other. “All right, Mr. DeMille, I’m ready for my close-up.”
In some private discussions during the quest to pass Bill C-389 in Canada, there was some talk about doing a “sit-out” protest (either at a visible government building washroom entrance or with the iconic male and female symbols put on the doors of the government buildings themselves) that uses the theme of being shut out of washrooms as a metaphor for being shut out of legislation, human rights and basic necessities. Media releases sent out the night before would use the washroom angle to generate interest, and then during a daytime rally (in the media cycle), speakers could focus on that, telling stories of exclusion from within the trans community, and having a handout.
Ultimately, too many people were afraid of possibly lending credence to the meme, and it never happened. And depending on what happens in the Senate, it may not have been necessary. But I do believe that by effective communication, and by including a diversity of people — especially cisgender people who queer their gender a bit (making the point of how gender expression protections are of value to far more than trans people) — it can turn the conversation right back on the fearmongers. Because that’s what we need to do.
But politics is local. Is Maryland the time and place to revisit this?
All of a sudden, these things just started appearing in womens’ washrooms everywhere.
And then, there’s the possibility of a stickering campaign, which could be employed anywhere that washroom panic is used to attempt to deny trans people legal protections. It would require the participation of those trans people and allies who do use a ladies’ restroom, to cumulatively make it be noticed and be effective. Because if a sticker like this started appearing in washrooms all across North America, the discussion would likely change. Completely.
(I have the URL, and would be more than happy to employ it to flush the fear on an international level. I would not, however, be able to fund and maintain it on my own.)
This would require people to have the stickers printed and place them, and is a relatively inexpensive approach that could be done on a grassroots level. It could, however, cause some blow-back, from those who would portray us as “men invading womens’ spaces.” It is the only part of the discussion that the general public will see as having merit, but it is one of the central foundations of the “Bathroom Bill” argument, and something that will need to be addressed. If we proceed on a sticker campaign, we will need to be prepared and equipped to do this.
This would be a bit different from initiatives like that of a coalition of Illinois groups, who started a campaign to highlight businesses that have trans-inclusive washroom policies.
I’m sure there are more ideas.
It’s infuriating that we should have to dignify washroom predator rhetoric with a response. But if we must, then let’s turn it right back on the fearmongers and use it to show exactly why it demonstrates that trans-inclusive human rights legislation is needed. Starting right where it all began and moving all across North America.
Because with ENDA being about to be reintroduced in the House soon (albeit more symbolically than otherwise), and being championed by a legislator who has done more to perpetuate the washroom scare than to challenge it, I doubt American trans folk can afford to let this tactic run amok, anymore.
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Edit: Thanks to Dana Beyer for reviewing the Maryland information in this article.