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Massachusetts votes to keep transgender protections with Question 3

Midterm voters’ approval of Massachusetts Question 3 means transgender people will remain protected from discrimination.

The LGBTQ flag, with the transgender flag in the background. Samuel Kubani/AFP via Getty Images

Voters in Massachusetts on Tuesday chose to keep a law that protects transgender people from discrimination.

The Massachusetts law, passed in 2016 by the state legislature, bans discrimination based on gender identity in public accommodations, such as hotels, restaurants, and other places that serve the public. But the law’s opponents got enough signatures to put it on the ballot as a referendum in the 2018 midterm elections.

On Tuesday, voters voted yes for Question 3 — and upheld the law.

Currently, federal law does not explicitly prohibit discrimination based on gender identity in any setting, even as the federal government bans discrimination based on other factors, like race, sex, religion, and nationality. Most states’ civil rights protections also do not extend to trans people.

The result is that in most states, it is not explicitly illegal for an employer to fire someone from a job, for a landlord to evict someone from a home, or for a business owner to kick someone out of a business just because he doesn’t approve of the person’s gender identity.

LGBTQ advocates argue that existing bans on sex discrimination should protect trans people, since discrimination based on gender identity is rooted in expectations about the sex someone was assigned at birth. But that interpretation of sex discrimination bans must be validated by the US Supreme Court or all lower federal courts before it becomes the law of the land.

So states like Massachusetts are filling in the gaps one by one. Massachusetts had already prohibited discrimination based on gender identity in the workplace and housing, and its latest law extends these protections to public accommodations.

The myth behind opposition to Massachusetts’s transgender protections

The opposition to Massachusetts’s law — the conservative, fearmongering No on 3 — built its case on the bathroom myth: If trans people can use the bathroom or locker room that aligns with their gender identity, men will take advantage of the law and act like women to go into women’s bathrooms or locker rooms to sexually harass or assault 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, the 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.

Experts say LGBTQ nondiscrimination laws do not lead to sexual crimes in bathrooms. Media Matters

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 that some trans people experience that can cause depression, anxiety, and even suicidal ideation.)

But conservatives and other opponents of LGBTQ rights have latched onto the insecurity over bathrooms to oppose civil rights gains. And although these are plainly myths with no evidence behind them, they’ve been used in attempts to perpetuate discrimination since the Jim Crow era.

At least in Massachusetts, though, the latest attempt at perpetuating the myth failed — and trans people remain protected under the law.

For more on the myths surrounding trans people, read Vox’s explainer.

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