While the media is focused on which party will serve as the majority in the House and Senate after the midterm elections, voters in 37 states also have the opportunity to vote on more than 150 statewide measures. Important issues like marijuana, voting rights, fracking, abortion rights, and trans rights, are all on the table this election.
One of the most vital midterms measures is Massachusetts' question 3, a measure that could repeal the state's landmark 2016 transgender rights law. The law was an important milestone in the battle for much-needed protections for the transgender community, ensuring individuals could use public restrooms and locker rooms according to their gender identity, and generally exist in public spaces without fear of discrimination. It was passed with almost 90% support in the state senate and over 75% support in the Massachusetts House of Representatives, signed into law by Republican Gov. Charlie Baker, and widely celebrated by a large range of LGBTQ+ business and civil rights groups, as well as New England's five major sports teams.
Governor Charlie BakerPolitico
The initiative to repeal this law is not the result of a movement by the people of MA, but rather the consequence of concerted efforts by a small, right-wing, Christian organization called the Massachusetts Family Institute and their allied organization Keep MA Safe. These critics say the law is "ripe for abuse," and could be taken advantage of by sex offenders entering women's bathrooms and dressing rooms with the aim of assaulting and harassing women and children. Debby Dugan, the chairwoman of Keep MA Safe, wrote in a Boston Globe piece last month that, "The way this law is written, an attempt to block someone who self-identifies as belonging in a women's locker room, dressing room, or bathroom — including convicted sex offenders — could result in penalties of up to a year in prison, and fines of up to $50,000 for multiple offenses."
The law was written with the expectation of this argument from the opposition, and includes a provision by directing Attorney General Maura Healey, who wrote that if, "an employee of a public accommodation has reasonable grounds to believe that a person, regardless of gender identity, is engaged in improper or unlawful conduct, they should do whatever they would normally do to address the situation, including asking the patron to leave or calling security or law enforcement." This means a person will not be legally liable for discrimination if they intervene in a suspected sexual assault, as long as they had reasonable cause to believe intervention was necessary.
Despite this, critics tend to frame the conversation as though the law protects offenders from legal consequences. But as Justice Healey wrote, "This new law does not provide any protections for someone who engages in improper or unlawful conduct, whether in a sex-segregated facility or elsewhere, nor does it provide a defense to criminal charges brought against someone engaged in unlawful conduct." Also, as many supporters of the law have pointed out, if someone had the intention of doing something unlawful in a public restroom, it is unlikely they would be deterred by gendered bathrooms in the first place.
It's difficult to believe that the people behind Keep MA Safe are actually concerned about the safety of Americans, given the lack of evidence that there is any correlation between assaults and trans rights laws, and the ample evidence that the trans community is constantly at risk of violence and harassment. The sex offender centered argument is a thinly veiled excuse for bigotry, as assault and harassment, regardless of the spaces they occur in, are illegal in the state of Massachusetts, and this law does nothing to change that. Additionally, the anti-discrimination law has been endorsed by the Massachusetts Chiefs of Police Association and the Massachusetts Coalition Against Sexual Assault and Domestic Violence.
Healey's office noted that in the 18 other states with transgender anti-discrimination laws, reports of "improper assertion[s] of gender identity have been exceedingly rare." In June, Rep. Joe Kennedy III told Boston.com that there is "not one single incident that they can point to of any sort of assault or danger that's taken place as a result [of the law]". Researchers at the Williams Institute — a think tank at the UCLA School of Law that focuses on sexual orientation and gender identity law — backed up Kennedy's assertions, announcing that they found no correlation between the passage of the 2016 law in Massachusetts and any change in the "number or frequency of criminal incidents in restrooms, locker rooms or changing rooms."
According to Logan Nelson, a transgender Massachusetts resident, the assertion that sex offenders may pretend to be transgender is absurd. "All I want to do is f*cking pee. The claim that sex offenders will pretend to be transgender is just wildly offensive and inaccurate. You can't 'pretend' to be transgender. Wearing different clothing doesn't make you transgender. The whole thing is essentially just an attack and there has been no aggression from the trans community that warrants this. All it is, is a hate infused attack. And of course, trans women of color already have the highest mortality rate in the trans community, so this is forcing them even further into extinction."
While it is clear that the law does not offer any protection for sexual assailants or others who would seek to act unlawfully, it does offer vital protections for Transgender individuals. The National Center for Transgender Equality reports that "more than one in four trans people has faced a bias-driven assault, and rates are higher for trans women and trans people of color." Additionally, the Human Rights Campaign has reported 22 deaths due to fatal violence against transgender people in 2018 so far, most recently the death of Ciara Minaj Carter Frazier on Oct. 3. Despite these harrowing statistics, the Trump administration has made discrimination against the transgender community a part of their agenda, aiming to define gender based on anatomy at birth and exclude non-cisgender individuals from legal protections.
In part because of Trump's harmful rhetoric, even if Massachusetts voters vote to keep the law, there is much work to be done in terms of providing transgender individuals with the rights and protection they deserve. As Mr. Nelson went on to say, "I'm not gonna stop using the bathroom. You know, cause I'm a human being who has to shit sometimes. And even without question 3, I still feel unsafe in bathrooms. I always have. Part of the trans experience is not having your rights respected or heard until they're in question. I have always felt unsafe and I will continue to. All this Question 3 stuff does is highlight the fact that Americans don't want transgender people to exist, that there are so few of us that the 'majority' (cisgender women and girls, men) matter more, and that there is zero education and cultural competency training in regard to gender in politics, the education system, and in popular culture."
While there is alway more work to be done in protecting trans Americans from systemic discrimination and violence, the outcome of Massachusetts vote on question 3 will have heavy implications for the rest of the country. If the referendum is successful in repealing the law — an unprecedented outcome in measures of this nature — supporters say a dangerous precedent could be set for other, less-liberal states where laws against discrimination on the basis of gender identity have been passed. In an America where division is actively encouraged by the President, it is important now more than ever to safeguard the legal protections of at risk communities. While we urge Massachusetts voters to vote "yes" on question 3, it's equally important for all Americans to continue to work to be better allies to the entire LBGTQ+ community.