The following was originally written in March of 2011, following a "Bathroom Bill" scare tactic used in Montana and ongoing conflicts in Maryland, and may contain some references relevant to that time. Because of a recent petition distributed by Rob Anders, the Member of Parliament for Calgary West, I am reprising it here, and editing it down because of the original length.
Human Rights In Principle
The whole premise of human rights is that all people should have equal access to employment, housing, medical and social services, and opportunities. The understanding is that people should be judged on their individual merits or faults, and not on characteristics that other people may have prejudicial associations about. We specify classes because bigoted people keep trying to make excuses to assert exceptions to the rule. You shouldn’t have to tell society that it’s wrong to place life barriers for people just because others find their body weight objectionable, for example, but as it becomes increasingly demonstrated that discrimination persists, it becomes apparent that you do. Without specifying these classes, situations are asserted in which one’s human rights are seen as justifiably trumped by another’s irrational fear of having to coexist with them.
Because classes are open-ended (i.e. “race” includes white people as much as non-white people), the whole idea that people in codified classes have “special rights” is a myth. The intent is that a person should not be excluded from participating in society because of assumptions or constructions associated with a trait, but rather their own merits or failures should form the basis of how we decide to interact with them.
You don’t narrowly define these classes: once you start doing that, you start codifying into law when it becomes legally acceptable to discriminate against a group of people. That is why when you include a class like “disability,” you don’t make an exception for or leave out people with mental illnesses that you view negatively.
The Porcelain Waterloo
That’s the infuriating part of all of this. I’m transsexual, and have been using the womens’ restroom ever since I transitioned, years ago. It has never been illegal for me to do so. Making it an issue at this point in time is archaic on a level that is mind boggling. The Transgender Law and Policy Institute notes around 130 jurisdictions in the US where explicit legal inclusion for transgender and transsexual people exists (some back to 1975), and yet there is no demonstrable pattern of incidents of the kind being imagined by opponents. [Several more have passed trans protections since May 2011, but I don't have an updated list.] The conflation of trans people with sexual predators is a fallacy.
It’s also ludicrous to speculate that a cisgender / cissexual sexual predator would risk drawing attention to himself by crossdressing, in order to access a washroom that he’d have better luck just sneaking into when no one is looking. This is simply a meme designed to generate a quick panic response, and exploit the “ick” factor for people who have never actually known someone who is transsexual or transgender, and have no other personal impression of them.
Washrooms seem to be a perennial battleground, from the racially segregated washrooms that lingered in the US south after other places were desegregated, to fears of gay men in washrooms during the advent of HIV in the 1980s. I even remember discussions when disabled washrooms were first proposed, in which people expressed their “discomfort” of encountering amputees in intimate spaces (which is recognized as a pretty chilling and disgusting objection nowadays, but at the time people seemed to think it was reasonable). Every time, there was hysteria. Every time, it was unfounded. Every time, our society ultimately moved toward progress, inclusion and accommodation, anyway, and peope just had to get over it. And every time, in retrospect, potty panic was just plain offensive.
Exactly Because This Persists
What people are failing to see is that potty fear is in fact the strongest argument FOR trans human rights inclusion.
Human rights protections are necessary exactly because this irrational fear persists. It’s necessary exactly because trans people still get conflated with sex predators and child predators, or labeled as “sick,” “perverse,” and “freaks.” It’s necessary exactly because people become so clouded with assumptions and myths that they argue for our deliberate exclusion from human rights under the pretext that granting them would be “dangerous” or “scary.” It’s necessary exactly because this bias is so entrenched that people think nothing about broadcasting it openly as though fact. It’s necessary exactly because this “ick factor” response is seen as justification for not allowing an entire group of people to share the same space, to terminate their employment or to evict them. It’s necessary exactly because it is so pervasive that discrimination becomes not only likely but inevitable — especially if there is no explicit direction in law to the contrary on the matter.
Although washrooms were sometimes used to try to fight human rights legislation for trans people, the rhetoric was polished and perfected into a political technique in Montgomery County, Maryland in 2007, when the NotMyShower website was established and “Citizens for a Responsible Government” (CRG) took a distorted image of trans people, exploited peoples' feeling of vulnerability in washrooms and came up with the modern version of the “Bathroom Bill” formula.
This was accompanied by a washroom invasion at a gym and spa in Gaithersburg. Here is how it was reported on by a local ABC television affiliate, on Tuesday January 15, 2008:
A man dressed as a woman walked into the women’s locker room at the Rio Sport and Health Club in Gaithersburg Monday, spawning concerns over a new controversial law designed to protect transgendered people.
Around 1 p.m. Monday, a man wearing a dress walked into the women’s locker room surprising Mary Ann Ondray who was drying her hair. ”I could see his muscles, I could see his large hands. He was wearing a blue ruffled skirt that came down to above the knee.”
The male left without saying anything, but Ondray says, ”I was very upset, I’m still upset. There’s a lot he could’ve seen.”
Club officials say he is a male club member, but it’s still unclear why he was dressed as a woman or why he didn’t use a designated family restroom.
Speculation abounded almost immediately afterward, and claims that the man in question was affiliated with the group -- as well as the amazingly coincidental presence of a TV crew within minutes of the incident -- raised eyebrows. CRG’s Theresa Rickman eventually admitted to having staged the incident, but the gym is still sometimes pointed to by opponents as an example, since her admission wasn't very widely noted:
THERESA RICKMAN: Yes, at Rio Sport and Health up in Germantown. A guy dressed as a girl went into the ladies bathroom. And, ah you know, essentially what uh, that was meant to get some media attention, you know, and the guy left immediately apparently, I mean but there was, this is the Rio Sport and Health Club, you know and Sport and Health has steam rooms, and there are ladies changing in those locker rooms, people in various stages of undress [laughing] all the time, so there’s lots a guy can see.
(Incidentally, the use of a single-stall locking restroom is in fact the policy for pre- or non-operative trans people at Rio Sport and Health, and is a not-unreasonable accommodation for them, considering that nudity happens in locker room settings)
Context is everything, and it’s important to recognize how the “Bathroom Bill” spin cycle progressed in Maryland, and where it differs or is similar to what happened elsewhere.
Transsexuals — those people who are primarily being villainized in the washroom territory dispute — face challenges to their very existence regularly during a transition process that is recognized by medical authorities as valid and necessary. Zoe Brain outlined quite vividly the kinds of hoops we need to go through when we begin our transition… and how it is far from a whim.
Even so, "Bathroom Bill" rhetoric was brought to Canada almost verbatim from CRG's campaigns by Charles McVety, who commented (G&M article is now behind a paywall):
“Bill C-389 is a danger to our children,” said Charles McVety, president of the Institute for Canadian Values. “If ‘gender identity’ is enshrined in the Criminal Code of Canada, any male at any time will be permitted in girls’ bathrooms, showers and change rooms as long as they have an ‘innate feeling’ of being female.”
This was said during the passage of bill C-389, which is identical in language to the current Bill C-279, had passed in the previous Parliament, but died awaiting review in the Senate when the election call happened. There was not a lot of media attention at the time, so this allowed several exchanges to go unnoticed. Gwen Landolt of REAL Women of Canada tried to exploit mental health prejudices by repeatedly citing a pamphlet by the American College of Pediatricians (a legitimate-sounding medical body that screens its membership according to far-right views on abortion and homosexuality, and whose publication has been disavowed by the American Academy of Pediatrics, the accepted authority in ACP’s domain). The website No Apologies [now offline, but I've kept the link for those who are Wayback Machine savvy] openly proclaimed allegations that trans people are “sexual predators and voyeurs.” The Association for Reformed Political Action (ARPA) Canada was notable among several online initiatives by automating the process so that with a click of a button, people who were sufficiently frightened by the rhetoric could click a button and mail every Member of Parliament with a prepared letter.
Although mainstream media refused to dignify much of the washroom scare tripe (and sometimes printed notably positive editorials), trans voices were largely forgotten in the conversation about trans rights. This didn't help.
But regardless of all of this, on February 9th, 2011, the Government of Canada passed Bill C-389, An Act to Amend the Canadian Human Rights Act and Criminal Code (gender identity and gender expression) on a narrow vote of 143-135. In a nation that hadn’t encountered “Bathroom Bill” spin before and had been somewhat insulated from similar discussions that happened south of the border, it had fared better… but still (thus far) failed.
Missoula, Montana: The Little City That Could
To me, Missoula signaled the beginning of the end of the Bathroom Bill tactic [in 2011]. There, opponents created the NotMyBathroom website and engaged in several distortions. But there was a difference. Given a little more information, the public started to see through the fearmongering.
In a panel hosted by Forward Montana and featuring a Wyoming Republican, a pastor, a veteran and a past chairman of the Montana College Republicans, the latter stated in support of LGBT protections: “I cannot believe we’re fighting issues like this in 2010.” And although members of CrossPoint Community Church and senior pastor Dr. Bruce Speer disrupted a meeting of community religious leaders who came together to express support for the ordinance, the affirming leaders soldiered on, forming Flush the Fear, which declares:
“All people should be free from discrimination based on their sexual orientation and gender identity or expression. Faith communities value dignity, fairness, diversity, and justice, and we know our strength as a community is based on treating each other fairly and with respect. Our group will be a strong and peaceful voice for the full inclusion of the LGBT community in non-discrimination policy.”
Allies and affirming people of faith stood with us. Cisgender [for those not familiar with the term, this means non-transgender, because "normal" is sort of offensive when used in that context] allies (some of whom had experienced running afoul of gender stereotypes, themselves) stood with us. And on April 10th, civic legislators passed an ordinance to protect LGBT people by a vote of 10-2. Don’t get me wrong — this didn’t happen without vile rhetoric and loud opposition… but enough people saw through it to do the right thing.
Once that happened, opponents of LGBT rights realized they couldn’t use potty fear in an overt capacity, and pushed the state government to pass legislation that would invalidate Missoula’s ordinance under the pretext of making human rights protections match the state's, as if to "avoid confusion."
But ultimately, washrooms were never the issue at all: refusal to coexist with lesbian, gay, bisexual and trans people was.
So the struggle returned to Maryland, where legislators dropped "public accommodations" (which referred to not just washrooms, but housing, shelters, and many other types of public facilities) from the bill. But even then, opponents continued raising the specter of “bathroom rapes” by citing violent acts committed by people who largely weren’t trans at all, and weren’t (or wouldn't have been) enabled in any way by an extension of human rights protections to trans people. After all was said and done, the act of removing public accommodations didn't end the fearmongering... but it did cause schisms among LGBT people and allies, and also created an illusion of validity to the argument.
It’s infuriating that we should have to dignify washroom predator rhetoric with a response. But if we must, then let’s point out how it shows exactly why trans-inclusive human rights legislation is needed.
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