The November midterm elections are poised to offer, in some sense, a referendum on the Trump administration’s two-year assault on the rights and liberties of women, immigrants, people of color, and LBGTQ communities. In Massachusetts, the referendum is literal: Voters will be asked on the ballot whether they want to uphold or repeal anti-discrimination protections for transgender people in the state.
In 2016, one month prior to Donald Trump’s presidential election, Massachusetts Gov. Charlie Baker signed into law a bill that updated the state’s civil rights statutes to protect transgender individuals from discrimination in public places, including restrooms, locker rooms, restaurants, stores, and medical offices. Now, thanks to the concerted efforts of anti-transgender opponents using transphobic misinformation and scaremongering, Massachusetts will become the first state to question whether to uphold or repeal such hard-won protections.
The 2016 law, and those like it around the country, far from assured an end to rampant anti-transgender discrimination. But a repeal on the grounds framed in the Massachusetts referendum — steeped as it is in bigoted, anti-transgender myths — would not only assert that transgender lives do not matter, but that they constitute a public threat.
“I truly believe that this is one of the most pivotal moments in the trans legal, political movement of this decade,” Chase Strangio, a staff attorney with the American Civil Liberties Union and a transgender rights activist, told me. “If we lose in Massachusetts and the protections are repealed, it will send a message to lawmakers across the country that trans people are unworthy of legal protection and animate new fights to restrict our access to public space.”
The measure, now named Question 3, was put forward by opponents to the 2016 law. The activists were able to gather a sufficient number of signatures to force the law onto the ballot for possible repeal. Only 32,375 signatures were needed; the Massachusetts commonwealth has a population of 6.86 million. Come November, voters will be asked to vote “yes” to uphold the protections or “no” to repeal them. Keep MA Safe, the group leading the repeal campaign, and Massachusetts Family Institute, a conservative Christian public policy organization, have pulled their alarmist and baseless narrative straight from a well-worn transphobic playbook: They claim that legal protections for transgender people in public places provide cover for sexual harassers to spy on and assault women and children in bathrooms.
A Keep MA Safe campaign video, titled “Creeper,” opens on a large man in a hooded sweatshirt fondling the wall of a women’s locker room door before entering and hiding in a bathroom stall. He waits and watches until a young blonde woman enters and starts to undress; he slowly opens the door, she looks up in terror, and then the scene fades out. “What does Massachusetts Question 3 mean to you?” the voiceover asks. “It means any man who says he is a woman can enter a women’s locker room, dressing room, or bathroom at any time — even convicted sex offenders.”
In perhaps the most disingenuous aspect of the campaign, a section on the Keep MA Safe website lists “examples of privacy violations.” Every one of the examples listed is a report of undisguised cisgender men spying on, recording, or harassing women in public bathrooms, changing rooms, or locker rooms. There is not a single case presented in which the violator is a transgender individual or a cisgender man pretending to be a woman. Furthermore, in no such instances could a perpetrator have taken advantage of the anti-discrimination law.
“The ‘No’ side claims that providing basic protections for transgender people reduces safety, but the facts disprove this,” said Kasey Suffredini, president of strategy at Freedom for All Americans, an LBGTQ advocacy group, and campaign co-chair of “Yes on 3.” “It’s illegal to harass anyone in a public place, and this nondiscrimination law doesn’t change that. That’s why there’s been no uptick in safety incidents in the two years since this law was passed.” According to the “Yes on 3” campaign, the 18 states and more than 200 municipalities with laws protecting transgender people from discrimination have reported no problems.
In the last 15 years, there has been just one case in the entire country of a transgender perpetrator of an alleged sex crime in a changing room, according to a June report published in the peer-reviewed Journal of the American Academy of Psychiatry and the Law. The forensic psychiatrists behind the report also found only one instance of a cisgender man claiming he was allowed access to a women’s bathroom under a new transgender protections law. “Frankly,” wrote one of the report authors in the Huffington Post, the man in question “sounds like a provocateur.” Furthermore, the report found only 13 cases since 2004 in which cisgender men dressed up as women to enter bathrooms or changing rooms and allegedly committed crimes. “The safety concerns of those opposing the expansion of transgender bathroom access aren’t based in reality,” the author, forensic psychiatrist Brian Barnett, wrote.
The claims of the “no” campaign are not based in reality, but they are grounded in a bigoted conviction that transgender people constitute a perversion and a threat. This conviction, when projected onto public ignorance, risks creating an even more brutal reality than the one transgender individuals already face. A 2013 survey found that 65 percent of transgender individuals living in Massachusetts had experienced discrimination in a public place in the previous 12 months. “We have seen even false narratives can take hold and completely transform our political landscape,” said Strangio. “The more people are taught to fear us and our bodies, the more violence we can expect against our community — particularly trans women of color, who are already facing staggering rates of physical violence and discrimination.”
The 2016 anti-discrimination protections were voted through the state legislature with strong bipartisan support. Polls suggest voters will choose to uphold the law in November. WBUR, Boston’s public radio station, reported that 71 percent of respondents to their poll would vote ‘Yes’ on Question 3. The station also noted that there had been concern about whether the referendum was confusing. For the most part, voting “yes” on a ballot means voting for some sort of change, while voting “no” is to vote against the change. As WBUR noted, “Question 3 is the reverse: a ‘yes’ vote approves of the 2016 law that offers protections for transgender people in public accommodations, while a ‘no’ vote disapproves and aims to remove it from the books.” The station’s poll found the confusing framing could indeed mislead voters. Twenty-one percent of respondents said they planned to vote “no,” but when the question was clarified, nearly 40 percent of those would-be “no” voters changed their vote.
Despite potential confusion, all predictors point to the Massachusetts voters upholding the anti-discrimination protections. Yet the very existence of Question 3 in a referendum sets a troubling precedent for other states to follow; 32 states have no laws specifically protecting transgender people from discrimination in the first place.
Strangio stressed that the legal protections under threat are limited tools in the LBGTQ struggle for true equality. Cities like New York where transgender people have long had robust legal protections are still rife with anti-transgender violence and discrimination. “That said, once we have formal legal protections, stripping them away at the ballot does way more harm than if the protections were never there in the first place,” he said. “That compounds existing trauma and validates the notion that trans existence is fraudulent and unworthy of protection.”