When it comes to transgender issues, there’s more than just a ‘bathroom bill’ at stake
I don’t typically touch transgender issues, because I tend to focus on issues of governmental transparency and accountability. But we’re at a unique point where the transgender conversation meets with the governmental accountability conversation. The other reason I generally avoid the subject is because I’m transgender, and I already get enough threats for my reporting.
Transgender rights are a pressing national issue, especially after North Carolina passed the notorious HB2. The law does a number of vile things, including forcing transgender people to use bathrooms that don’t match their gender identity and barring municipal governments from passing ordinances that protect transgender people’s right to use the appropriate facilities. The law is bad enough that it prompted the Washington Post to report on the potential health crisis that it may cause among the state’s transgender youth.
The fallout since HB2 became law has been incredible. There have been travel bans and boycotts. Many businesses have canceled plans to move to or expand their interests in North Carolina, and many entertainers are refusing to perform there. Several other states have banned their employees from nonessential travel to North Carolina and Mississippi, the latter of which has a similar law. But not “progressive” Massachusetts.
Though the Boston City Council passed a travel ban for its employees, Governor Charlie Baker refused to add Mass to the list (boo!). Maybe Baker refused because he understands that banning travel to another state over its abuse of transgender people would be hypocritical since Mass continues to sentence transgender women to torture and sexual assaults (boo!).
Massachusetts is considering a bill, dubbed the bathroom bill, that would protect everyone’s right to use the bathroom that matches their gender identity. It would mandate that establishments that are open to the public and offer gendered restrooms must allow everyone to use the bathroom that matches their gender identity. The bill has been held up by Baker and the state legislature, which led to some folks, who I assume just want to use the correct bathroom, booing Baker off the stage last month at Boston Spirit magazine’s LGBT Executive Networking Night.
Passing the bathroom bill would protect everyone’s right to use the correct bathroom. Using myself as an example, I’m female. Both the Commonwealth of Massachusetts and the federal government legally recognize me as such. Since I am legally female, any establishment that forces me to use the men’s room would legally be able to do the same to any other woman (trans or cis). Failure to pass the bill allows any establishment to force people into the wrong bathroom (or to refuse to accommodate them completely). This isn’t strictly a transgender issue either; just last week, RawStory reported on a cis woman being hauled out of a women’s room by the police.
This isn’t just about bathrooms. Legally mandating this protection would stop governmental institutions from abusing transgender people too. This is a real problem because Mass legally recognizes transgender people, me, as the gender they transitioned to, but are knowingly keeping people in the wrong prison facilities. While I have never been arrested or charged with a crime, those who follow my work will know that I have faced repeated threats of arrest. Terrifyingly, if imprisoned in the Mass Department of Correction, I would likely be housed with men.
The DOC places transgender women into men’s facilities (and vice versa) based on a particular prisons’ security and operational concerns over a transgender individual’s legal or medically recognized gender. It actually has a policy outlining how corrections staff are to identify and provide treatment for transgender people—even though it still houses them in the inappropriately gendered facility.
In her book Resistance Behind Bars: The Struggles of Incarcerated Women, Victoria Law cites a study from California which showed that 59 percent of transgender women housed in men’s facilities were sexually assaulted (compared to 4 percent of inmates who identified as male). The same book also provides evidence that transgender women are routinely forced into prostitution (by prisoners and guards) and shows that transgender women in male facilities are regularly placed in solitary confinement. The UN calls prolonged solitary confinement torture and has called upon America to stop using it in many circumstances, including those that arise from mental health issues.
The current corrections policy, which was authored during Baker’s administration (boo!), does not consider an inmate’s legal gender. For a pre-op transwoman, like me, who is legally female, to even be considered for appropriate housing, the policy suggests she would need to lop off her balls. Worse, even if the inmate had undergone full SRS (Sexual Reassignment Surgery), under this policy a prison superintendent could still decide to house the inmate incorrectly by citing a security or operational need to do so.
SRS is expensive and typically is not covered by health insurance. I can’t afford it and probably won’t be able to for years. Having a double orchiectomy now is medically unnecessary, painful, and expensive, and it would take weeks for me to recover from. Worse, the side effects could include potentially not being able to function sexually (at least until I completed SRS). This is an arbitrary and cruel line to draw, and it’s a different line than the one set by Massachusetts for recognizing a legal gender change.
But the policy isn’t all bad. At least the policy “may contain recommendations regarding access to cross-gender clothing and canteen/cosmetic items approved for inmates.” Because, surely, having gender-appropriate clothing during sexual assaults is comforting. Silver linings, right?
Meanwhile, the argument against the Massachusetts bathroom bill appears to be that a man could legally put on a dress and enter the women’s room, and then sexual assaults would happen. However, state law already defines gender identity (hint: It’s not by asking, “Are you wearing a dress?”). The statute reads, “‘Gender identity’ shall mean a person’s gender-related identity … Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity.”
Contrary to the ignorant commentary that abounds, the bill does not protect a man who throws on a dress to enter the women’s room. He would have to live as a female full time and/or have medical records backing up his claim. And since the bathroom bill does not change any of the criminal code for sexual assault, indecent exposure, etc, anyone who committed any such act would still be prosecuted (as well they should be). Any predatory activities, like the sexual assaults opponents to the bill claim to be afraid of, would still result in the same amount of jail time that they do now.
The ultimate argument boils down to people claiming transgender women are all just men in dresses who want to attack women … which is neither a medically nor a legally sound argument. When weighing such claims, remember that the local group presenting this argument also believes that watching porn is linked to cannibalism. And for some reason Baker just can’t decide if he wants throw his hat in with this idiot cabal.
It’s shameful that Baker (boo!) and some leading state Democrats have held up passage of the so-called “bathroom bill.” Baker (boo!), who the Boston Globe (boo!) reported as being against similar measures previously, now appears unlikely to veto the bill. He still hasn’t said if he would use his veto (supporting the bill could hurt him nationally, while vetoing it could hurt him in Mass). The Democrat leadership waited to put the bill on Baker’s desk, citing the potential veto, which is political cowardice on all counts (BOOOO!). The bill appears to be moving forward now that Baker’s spokesperson suggested that a veto is unlikely.
Finally, instead of sympathizing with the overwhelming need to criticize Baker, the Globe published an editorial blasting transgender advocates who booed the governor offstage last month. The editorial suggested that such protests could lead Baker to continue to oppose transgender rights. Or, to frame it more accurately, the Globe knocked transgender advocates for being heard at a GLBT event.
The Globe’s insulting editorial offered this nugget of advice: “Save the boos for when and if that [Baker vetoes the bathroom bill] happens.” But in reality the booing put Baker in the hot seat and was widely covered in the media. While Baker has yet to make any real decision, his spokesperson has since signaled that he probably won’t veto the bill.
Baker should be buried in boos until he, as governor, puts an end to the deliberate and dangerous misgendered housing of inmates. His cowardice about the bathroom bill deserved boos too. To the governor and the Globe’s editorial staff—from me, a transgender woman—boo to all of you.
*Author’s note: In this piece I only broke down the issue looking at gender as binary, which it isn’t. This isn’t to keep the folks elsewhere on the spectrum invisible, but rather because I cannot speak from experience about non-binary gender issues, and also because it’s not clear how the bill would affect people outside the binary. One reading would be that if a person didn’t constantly and provably identify as a gender they wouldn’t have a protected right to access either gendered bathroom. Another possibility is that the bill would protect you based on a doctor’s recommendation… Until there is case law it would be wrong for me to speculate. -M.S.