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Will Massachusetts really allow men to enter women’s bathrooms?
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A bill creating extended protection for transgendered individuals in Massachusetts has drawn plenty of attention from supporters and opponents alike.
The bill, H.B. 1728, states that “gender identity” is to become a protected class, meaning that a person cannot be discriminated against by the government, landlords, labor unions, or employers based on the gender with which they identify, regardless of their physical sex.
But will it allow men to wander into women’s bathrooms legally like its opponents claim?
Sure enough, it will not make it legal for men to simply wander aimlessly into women’s bathrooms and locker rooms, although there are some very troubling aspects that have gone unnoticed amidst all the commotion.
The amendment created by the bill that prevents owners of public accommodations from discriminating on the basis of gender identity or expression does in fact prevent bathroom discrimination, but it is a bit more complicated than just that.
The bill states “No owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement shall…actually discriminate[e] against persons of any…gender identity or expression…in the full enjoyment of the accommodations, advantages, facilities or privileges offered to the general public by such places of public accommodation, resort or amusement.”
This includes “a rest room, barber shop, beauty parlor, bathhouse, seashore facilities or swimming pool, except such rest room, bathhouse or seashore facility as may be segregated on the basis of sex.”
Despite this clear wording, some people are grossly misrepresenting the issue. Let’s take Boston Herald blogger Holly Robichaud (holly@TuesdayAssociates.com) for example. She recently stated that “If this bill is passed public bathrooms across the Commonwealth will no longer be separated based on gender — male and female. Men will be able to use the lady’s room and women will be able to visit the men’s room.” (See http://bh.heraldinteractive.com/blogs/news/lone_republican/?p=583&srvc=news&position=recent_bullet)
This is completely factually false. In fact, it’s NOT EVEN CLOSE to what the bill says. And by the way Holly, it’s “Beacon” Hill, not “Bacon” Hill, although I do prefer your version.
While men, under this bill, could walk into a woman’s public bathroom and claim to be women, they could do so anyway. Putting a wig and a dress on will already allow any man to walk into a woman’s bathroom. This bill is just adding protection from discrimination for a specific population, which in no way allows a person to falsely state their gender identity. Just as a white person cannot claim to be black on a college application, it would still be illegal under this bill to falsely identify oneself as a member of the female gender when that person is in fact a male.
Members of the public and managers of public facilities will retain every right to protect themselves against men entering women’s bathrooms, and the right to question someone who appears to be a man entering a women’s bathroom and asking him or her for identification is not withheld by this bill.
However, the bill may bring other dangers to Massachusetts that has gone unnoticed.
The first problem here is that protection will be afforded to a new group, while many other groups are still without it. At some point, the Commonwealth needs to draw a line in the sand and stop allowing new groups to claim special protection. People are not protected based on political beliefs, areas of non-religious study, youth, or various other groupings.
Try making a Republican-leaning speech at a public university without someone disrupting it, or using a bathroom at a public coffee shop when you are too poor to avoid the coffee. A lot of groups are denied the protections that transgendered individuals will be afforded under this bill.
Second, the bill redefines “hate crime” to include “any criminal act coupled with overt actions motivated by bigotry and bias…motivated at least in part by…gender identity or expression prejudice…which seek to interfere with or disrupt a person’s exercise of constitutional rights through harassment or intimidation.
“Hate crimes,” (a phrase that should be considered redundant), represent an incredibly inconsistent area of law that treats certain crimes differently depending not on the type of crime committed, but whether or not the victim of such crime is of a certain protected class. Any expansion of this troubling area of criminal law represents further inconsistency by the courts.
Of course, these issues will go unnoticed if every opponent of the bill focuses on preventing the “bathroom” problem.
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