Last year, North Carolina Republicans passed a sweeping anti-LGBTQ law that, among other measures, prohibited transgender people from using the bathroom that aligns with their gender identity in schools and government buildings. The law inspired a furious backlash, leading businesses to boycott the state and contributing to Gov. Pat McCrory’s defeat on Election Day.
Despite the backlash, Texas is gearing up to pass its own law prohibiting trans people from using the bathroom that aligns with their gender identity.
On Thursday, Lt. Gov. Dan Patrick unveiled SB6. The bill, if approved by the legislature, would prohibit trans people from using the bathroom or locker room for their gender identity in schools and other public buildings, with violations enforced through a civil fine of at least $1,000 per offense. It would also let businesses set anti-trans bathroom policies, overriding any local laws that say they can’t.
In some ways, this is anti-trans bathroom hysteria coming full circle. The current fight over trans people in bathrooms began in 2014 in Houston, where voters overturned a law that protected LGBTQ people from discrimination based on sexual orientation and gender identity in the workplace, housing, and public accommodations. Critics of the Houston law propagated a myth that the statute would allow men to pose as trans women so they could go into women’s bathrooms and sexually assault women. There are no such cases of this happening in US jurisdictions with nondiscrimination laws for LGBTQ people.
Still, the myth was apparently potent enough to get Houston voters to turn against their local nondiscrimination measure.
Patrick argued the statewide bill was necessary to protect women after a federal guidance from the Obama administration asked publicly funded schools to let trans people use bathrooms and locker rooms for their gender identity. (The guidance is currently in court, with Texas leading the challenge.)
But in doing this, Patrick is once again pushing the same myth that worked in Houston and North Carolina — and now threatens to get a bathroom bill passed in Texas, even though there’s no evidence to support it.
Anti-trans bathroom laws are based on a huge myth
Let’s be clear: The argument for laws like SB6 is based on a myth. Supporters claim that letting trans people use the bathroom or locker room for their gender identity will allow men to disguise themselves as trans women to go into women’s bathrooms or locker rooms and sexually assault and harass women.
But even if trans people are allowed to use the bathroom or locker room that aligns with their gender identity, sexual assault remains illegal.
There’s also no evidence that nondiscrimination laws — and other policies that let trans people use the bathroom for their gender identity — lead to sexual assault in bathrooms and locker rooms. In two investigations, left-leaning media watchdog organization Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had no increases in sex crimes after they enacted their policies.
Conservatives usually counter that there are examples of men sneaking into women’s bathrooms to attack women. But as PolitiFact reported, none of the examples cited in the US happened after a city or state passed a nondiscrimination law or otherwise let trans people use the bathroom or locker room for their gender identity. Instead, these seem to be examples of men doing awful things regardless of the law — which has, unfortunately, happened since the beginning of civilization.
One example is a case in Toronto, Canada, which now has a nondiscrimination law, in which a man disguised himself as a woman and attacked women in shelters. But the attacks happened months before Ontario (Toronto’s province) protected trans people in a nondiscrimination law. So the law couldn’t have been the cause.
While the issue is now being used primarily against trans people, historically bathroom fears have been regularly deployed against civil rights causes. It was used against black people to justify segregation — by invoking fears that black men would attack white women in bathrooms. And it was used to stop the Equal Rights Amendment, which tried to establish legal equality between men and women, because opponents claimed it would lead to the abolition of bathrooms for different genders, potentially putting women in danger.
Some people are also, frankly, just bothered by the idea that someone in the same bathroom or locker room won’t share the same genitalia as them.
This gets to the heart of the issue: Bathrooms are places where really private things happen, and that makes people feel vulnerable in all sorts of ways. “People are afraid because they’re exposed,” Kathryn Anthony, author of Designing for Diversity: Gender, Race and Ethnicity in the Architectural Profession, told the Guardian. “There’s a vulnerability we feel in public restrooms we don’t feel in other places.”
But a lot of things happen in public bathrooms that people aren’t comfortable with — and people have managed to deal with it to accommodate others’ rights and needs.
So if it’s not harming anyone, perhaps it’s best, LGBTQ advocates argue, to let trans people use the facility for their gender identity without making them feel ostracized and discriminated against. (Discrimination is a huge contributor to gender dysphoria, a medical condition some trans people experience that can cause depression, anxiety, and even suicidal ideation.)
But conservative lawmakers have latched on to the insecurity over bathrooms to propagate myths about the power of discriminatory laws to stop horrible attacks in bathrooms and protect people’s privacy. And even though these are plainly myths with no evidence behind them, they have worked to sustain discrimination, from Jim Crow policies to Texas’s anti-trans bill.
This is part of a broader battle over nondiscrimination protections for LGBTQ people
At some level, it might be bewildering that the discussion about LGBTQ rights has now become largely about bathrooms. How did we get to this point?
Simply put, the discussion is about bathrooms because conservatives have found the topic a winner in their fight against civil rights laws that protect LGBTQ people from discrimination.
In most states, it is legal under local and state law to discriminate against someone based on their sexual orientation or gender identity in the workplace, housing, public accommodations, and schools. So under most states’ laws, an employer can legally fire someone because he’s gay, a landlord can legally evict someone because she’s lesbian, and a hotel manager can legally deny service to someone who’s transgender — for no reason other than the person’s sexual orientation or gender identity.
This is essentially what Houston was trying to fix with its measure: It wanted to make sure that, at least within the city’s borders, people couldn’t get away with this kind of discrimination against LGBTQ people.
Generally, the public supports laws like Houston’s. In Texas, for example, 67 percent of Americans support nondiscrimination protections for LGBTQ people, according to a 2015 survey from the Public Religion Research Institute. That’s lower than the national average of 71 percent, but still a clear majority.
Yet scaring people about these kinds of laws with the bathroom myth has proven an effective way to turn around public opinion. In Houston, early polls showed that either pluralities or majorities supported the nondiscrimination law. Yet by Election Day, after months of discussion about how the law would play out in public bathrooms, there was enough opposition to repeal Houston’s law.
So conservatives have latched onto the myth as part of a broader effort to resist laws that shield LGBTQ people from discrimination.
Bathroom laws are bad for trans people — but also business
Obviously, the foremost victims of anti-trans bathroom laws are trans people. Forcing trans people to use the bathroom that doesn’t align with their gender identity acts as a reminder that, as far as society has come on some LGBTQ issues, it’s still not completely willing to accept trans people and their identities — even if trans people pose no danger to anyone else.
Under these measures, trans people also have to constantly fear using the bathroom that corresponds with their gender identity. As Lily Carollo wrote for Vox, “From now until the law is repealed or settled in court, or until my birth certificate is amended, I will keep breaking the law. I’m not the only one. I will be an anxious mess every time I use the bathroom, but I don’t see any option. It’s all I can do, really. I am a woman.”
But these measures have also proven to be bad in another way: They can cost jobs.
After North Carolina passed its anti-LGBTQ law, PayPal and Deutsche Bank pulled expansions into the state that would have created hundreds of jobs. The NBA and NCAA pulled sports events from the state. Several musicians, such as Bruce Springsteen and Pearl Jam, canceled concerts in the state. A+E Networks and 21st Century Fox said they would reconsider using North Carolina as a filming location in the future. And more than 200 business leaders signed a letter asking Gov. McCrory to repeal the law.
Texas business groups, meanwhile, have already lined up against SB6, with the Texas Association of Business taking a public stance against the bill.
Businesses have a financial incentive to act this way: A major goal of theirs is to attract new talent. But young hires are also more likely to be more supportive of pro-LGBTQ causes, including trans people in bathrooms, and some of them may be LGBTQ themselves. So appearing supportive of LGBTQ rights can be one way that a company shows it shares the values of the up-and-coming workforce.
Whatever the reason, businesses’ resistance to anti-LGBTQ laws is enough to make any lawmaker reconsider whether to pass these bathroom measures.
“Whether you’re a Democratic governor or a Republican governor, virtually without exception, goal No. 1 is to keep jobs in your state and to attract new jobs that you don’t currently have,” Chad Griffin, president of the LGBTQ rights group HRC, previously told me. “That is one thing that is shared between conservative governors, liberal governors, moderate governors.”
The efforts seemed to work to some extent: Surveys show public opinion in North Carolina is now against the state’s anti-LGBTQ law, and opposition to the measure contributed to Gov. McCrory’s electoral defeat. Still, the law remains in place as the state’s Republican-controlled legislature continues to refuse to repeal it. And all the backlash to North Carolina’s law didn’t seem to stop Texas from now pushing its own measure.
LGBTQ groups’ strategy to beat these laws will focus on humanization and lobbying businesses
Since North Carolina, LGBTQ advocates have been preparing for more fights over this issue. Based on my conversations with advocates, their push will rely on three parts.
First, just as same-sex couples were humanized in the same-sex marriage battle, trans people must be humanized to show the world that they are not deviant — as the link to attacks in bathrooms can suggest.
“Around the marriage issue, so many people had these false ideas of gay men as single sexual predators who were dangerous — really similar to the ways many people think of trans people,” Janson Wu, executive director of the LGBTQ group GLAD, said. “But once we were able to show that they are brothers, sisters, parents, children, and that they work in the community and volunteer in their churches and community groups, and put them in the context of their lives, it was really critical to advancing the equal humanity and dignity of all people, particularly LGBTQ people.”
That’s why LGBTQ groups like Freedom for All Americans ran ads in North Carolina that put a face on trans people. “This is clearly a piece that has been missing,” Matt McTighe, the executive director of Freedom for All Americans, told BuzzFeed. “We need to humanize this issue, and to educate people on who transgender people really are.”
Second, advocates want to rally business leaders against anti-LGBTQ laws to show that such measures can have major economic consequences. “[T]he increase in business [engagement and lobbying against these laws] has been key to our success,” Griffin of HRC told me, “and I think it will be key to our success as we engage in these battles in the future.”
The successes he’s speaking about came in Indiana and Georgia. In Indiana, legislators amended a religious freedom law to clarify that it doesn’t allow discrimination against LGBTQ people after a massive backlash in 2015. In Georgia, Gov. Nathan Deal in 2016 vetoed a religious freedom law, which advocates said allowed anti-LGBTQ discrimination, after businesses, particularly Hollywood studios that film in Georgia, threatened to boycott the state.
Finally, advocates plan to continue pointing out that there is no evidence that men take advantage of trans-friendly policies to attack women in bathrooms and locker rooms.
Combined, LGBTQ groups hope they can show voters and lawmakers that fears about bathrooms are hurting real people, cost the state jobs, and are wholly based on myths.
It’s unclear whether the strategy will work in Texas. But if it does, it could present a national model for resisting a tactic that has so far been successful for opponents of LGBTQ nondiscrimination laws.