It was a California law that, no matter what, was bound to generate interest: Public school students would be allowed to use bathrooms and locker rooms corresponding with their gender identities, not their anatomy at birth.
Transgender rights advocates hailed the first-of-its-kind measure, signed by Gov. Jerry Brown two years ago, as a significant victory.
Detractors soon mobilized, submitting more than 600,000 signatures for its repeal. After coming up short, the Privacy For All alliance is working to place the issue on next year’s ballot.
The law took things “just a bit too far,” said Karen England, a group spokeswoman. “It is common sense to want to have privacy and to expect privacy when we’re in government-funded buildings” such as schools and parks.
They can expect further policy disputes. LGBT leaders, following their successful effort to legalize same-sex marriage across the country, say expanding transgender rights is the next boundary in the culture wars. Last month, a coalition of lesbian, gay, bisexual and transgender organizations formed to fight the ballot proposal to nullify the bathroom law, calling it a “recipe for harassment.”
Assemblywoman Susan Talamantes Eggman, chair of the Legislature’s LGBT Caucus, characterized the measure as an offensive invasion of personal privacy motivated by “a new wave of wholly unjustified panic about transgender people.”
“This is exactly why so many of us, though we celebrated the Supreme Court’s marriage decision, were already looking ahead to the next fight,” said Eggman, D-Stockton.
Opponents, however, say they are the ones being marginalized in the debate. England, executive director of the family values group Capitol Resource Institute, said she considers the ongoing effort a matter of common sense and not an affront to the transgender community.
“We don’t think that wanting privacy and modesty is the same as hate,” she said. “Whether this person is an 8-year-old, an 18-year-old or an 80-year-old, when they go in and they disrobe, no matter how sincere they are in their belief about their gender identity, it doesn’t change the reality of their gender. And, that’s what we are talking about.”
The new measure, cleared for signature gathering, would effectively replace the current law. It would bar people from using government-funded facilities that don’t relate to their sex as determined by birth, medical examination or court judgment acknowledging a gender change, according to the summary.
Those who felt their rights were infringed upon could sue in civil court and would be entitled to at least $4,000 from a government or person found in violation. It also would allow businesses to ban transgender customers or employees from using their facilities.
Proponents are objecting to the fiscal analysis prepared by the state, which estimates a potential significant loss of federal funding along with an increase in state government court costs from civil claims “not likely to exceed a few tens of millions of dollars annually.”
“It’s entirely disingenuous,” England said, noting that California includes a right to privacy in the state constitution. “We won’t lose federal funds.”
They have roughly until year’s end to submit 365,880 signatures to qualify for the November 2016 ballot.
California lawmakers over the years have labored to increase the rights of LGBT communities. Assembly Bill 1266, by then-Assemblyman Tom Ammiano, D-San Francisco, permitted transgender students to use school facilities and participate on organized sports teams that aligned with their gender identity, regardless of what was listed on their records.
Earlier this month, a new law took effect requiring officials to list on death certificates the gender identity preferred by transgender people.
Eggman this year introduced legislation to amend the term “gender” to include a person’s gender identity and gender expression, and to allow anyone subjected to sexual orientation violence to bring legal action. Other measures would forbid discrimination against transgender jurors during the selection process, prohibit state agencies from signing certain contracts with firms that discriminate against workers based on gender identity and require that foster children and dependent adults in out-of-home care be placed according to their gender identity.
Meanwhile, the University of California beginning this fall will allow students to voluntarily self-identify their gender identity and sexual orientation on undergraduate applications, a move officials said would help them better meet the needs of students. UC also announced that new buildings and facilities undergoing renovations would receive so-called “gender-neutral” restrooms and changing rooms.
Such facilities, often a small bathroom used by one person at a time, are becoming more common in cities and airports, and even exist for staff and visitors of the White House.
More far-reaching policy changes involving transgender people are occurring nationwide.
President Barack Obama in an executive order this spring banned discrimination against transgender and gay workers at companies that do business with the federal government. The Pentagon moved this week to strike its ban on permitting transgender people to serve in the military, after the federal government urged private employers to expand workplace services to transgender employees.
Transgender people are being humanized in politics and pop culture, with the rise of shows like “Transparent,” “Orange is the New Black” and “Glee.”
Advocates considered it a historic reference when Obama used “transgender” in his State of the Union address this year. And some swelled with pride when Obama sent an encouraging tweet about Caitlyn Jenner, the Olympic decathlon champion and TV personality who recently unveiled her transition.
Rick Zbur, executive director of Equality California, one of several groups against the proposed ballot measure along with the ACLU of California, Human Rights Campaign and the Transgender Law Center, said he’s concerned about the types of messages supporters may use if the measure qualifies for the ballot.
“They realize that our community is a wedge issue, but really the damage is in people that don’t think about our community much and don’t understand,” he said, adding, “We don’t like to see that (misinformation) because it results in people saying a lot of things that aren’t true.”
Much of the debate could center on schools, as it did during the run-up to AB 1266. While officials and courts in Colorado and Maine have affirmed students’ access to the restrooms of their choosing, conservative lawmakers in Nevada, Florida, Texas and other states have tried to limit transgender students with so-called bathroom-focused bills of their own.
Zoey Luna, a transgender girl from the Los Angeles area, and her mother, Ofelia Barba, helped advocate for the California law. In an interview, the pair said that taking away Zoey’s right to use girls’ bathrooms and locker rooms to change for P.E. could erode her self-esteem and grades.
“It would be bad for any student to be questioned or harassed just for basically using the facilities,” Barba said.
Zoey likened a possible reversal to a time when bathrooms, drinking fountains and doors were segregated based on race. Though she’s experienced bullying at school, Zoey said she believes the world is becoming more accepting. Now 13 and entering high school, she added that she hasn’t encountered any serious problems of late. “When I go to the bathroom, I just go to use it and then come out,” she said.
Others assert the law has caused all kinds of problems. Kevin Snider, chief counsel at the Pacific Justice Institute and an author of the new ballot measure, said he regularly fields calls and emails from irate parents, teachers and school board members complaining about their inability to stop students from using what they consider to be the wrong restrooms. Snider keeps a list of stories from around the country in which gender-identity laws have caused trouble.
Looking ahead to a campaign, he said supporters of transgender men and women using facilities that correspond with their gender identity too often rely on traditional propaganda: Demonizing their opponents; trying to show that the voter is part of a growing crowd of supporters and using popular people such as celebrities to act as surrogates.
“There are people in the entertainment and journalistic media who think that I and other people like me are bigots because we still believe in biological reality,” Snider said. “There is a view out there that gender has been artificially constructed, and it’s not a biological reality,” he added. Our position is that it in fact is a biological reality.”