How America started giving a crap about which bathroom you use
Bathrooms have become a major political battleground in America.
Just consider what happened on Wednesday, May 4, alone. The Department of Justice told North Carolina that its anti-LGBTQ law was in violation of federal civil rights law by preventing transgender people from using the bathroom that corresponds with their gender identity. Several hundred miles away, Oxford, Alabama, after facing legal threats, repealed a law that threatened to lock up trans people who used the public bathroom of their choice.
Up in Chicago, the anti-LGBTQ Alliance Defending Freedomfiled a lawsuitagainst a local school district and federal agencies for allowing trans people to use the bathroom that corresponds with their gender identity. Meanwhile, the anti-LGBTQ Family Research Councilannounced an ad campaignfor social media that will criticize President Barack Obama's administration for letting trans students use the bathroom they want.
How did the US get to a point where bathrooms, out of all things, are at the center of the country's culture wars?
The current bathroom battle does not start in North Carolina, which passed its anti-LGBTQ law in March and has since dealt with a national firestorm. While the bathroom issue has popped up in small fights over the years, its current use really goes back to Houston, Texas, the first place where it was proven to be a serious issue. And it's not really about bathrooms — although the debate has largely gone to the toilet, it is actually about a much bigger struggle to expand rights for LGBTQ people.
The fight is really about the next phase of the LGBTQ movement
The current bathroom battle began in a little-known electoral contest in 2015, in Houston.
There, the city council in 2014 passed the Houston Equal Rights Ordinance (HERO), which would have prohibited discrimination in the workplace, housing, and public accommodations (restaurants, hotels, and other places that serve the public) against people based on a variety of traits, particularly sexual orientation and gender identity. The local ordinance was meant to fill a gap in Texas's — and most states' — laws: LGBTQ people aren't currently included in nondiscrimination statutes.
But conservative opponents, who argue that businesses should be able to discriminate against LGBTQ people who violate their religious values, managed to get a referendum on HERO on the November 2015 ballot after lengthy legal battles.
The referendum against HERO, at first, seemed to have no chance of success. Polls consistently found HERO surviving the challenge, such as one survey taken weeks before the election that found HERO had plurality support — 45 percent of adults in Houston would vote for it, 36 percent against, and 20 percent were unsure.
CONSERVATIVES MANAGED TO TURN PUBLIC OPINION TO OPPOSE AN LGBTQ NONDISCRIMINATION LAW BY SCARING PEOPLE ABOUT BATHROOMS
Then conservatives began scaring people about bathrooms. They argued that HERO would let trans people use the bathroom that corresponds with their gender identity. Once that happens, they said, men will disguise themselves as trans women to sneak into women's bathrooms and sexually assault women. (This has never happened as a result of states' nondiscrimination laws. More on that later.)
The tactic worked: In November, voters rejected HERO, which once looked invincible in the polls. Conservatives managed to turn public opinion to oppose an LGBTQ nondiscrimination law by scaring people about bathrooms.
Religious and social conservatives celebrated the win. Finally, after losing fights over Don't Ask, Don't Tell and same-sex marriage for years, this was a talking point that seemed to actually push back against the expansion of LGBTQ rights.
So when Charlotte, North Carolina, passed a nondiscrimination law that sought to ban discrimination against LGBTQ people in public accommodations, North Carolina Republicans immediately turned to bathrooms to repeal the measure.
Gov. Pat McCrory warned, "This shift in policy could also create major public safety issues by putting citizens in possible danger from deviant actions by individuals taking improper advantage of a bad policy. Also, this action of allowing a person with male anatomy, for example, to use a female restroom or locker room will most likely cause immediate State legislative intervention which I would support as governor."
Republicans in the state legislature got on board. On March 23, all within 24 hours, the legislature introduced, it passed, and McCrory signed into law a measure that bans all local nondiscrimination ordinances that include sexual orientation and gender identity, and effectively prohibits trans people from using the bathroom and locker rooms of their choice in schools and public buildings.1
The legislature, then, managed to use fears about transgender people in bathrooms as a cudgel to successfully repeal laws that protected LGBTQ people from discrimination.
Since then, North Carolina's law has become a national controversy, with businesses, celebrities, and politicians chiming in on both sides. Many spoke out against the law, but some places considered their own anti-LGBTQ and anti-transgender measures. As theNew York Times noted, the nation is in the middle of a "bathroom hysteria."
There's just one problem: The basis for concerns about trans people in bathrooms is a myth.
The debate over bathrooms is based on a myth
Supporters of anti-trans laws like North Carolina's claim that letting trans people use the bathroom or locker room of their choice will allow men to disguise themselves as trans women to go into women's bathrooms and sexually assault and harass women.
But even if trans people are allowed to use the bathroom that aligns with their gender identity, sexual assault remains illegal.
Moreover, there's no evidence that nondiscrimination laws — and other policies that also let trans people use the bathroom of their choice — lead to sexual assault in bathrooms and locker rooms. In two investigations, Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had no increases in sex crimes after they enacted their policies.
Conservatives usually counter that there are examples of men sneaking into women's bathrooms to attack women. But as PolitiFact reported, none of the examples cited in the US happened after a city or state passed a nondiscrimination law or otherwise let trans people use the bathroom of their choice. Instead, these seem to be examples of men doing awful things regardless of the law — which has, unfortunately, happened since the beginning of civilization.
One example is a case in Toronto, Canada, which now has a nondiscrimination law, in which a man disguised himself as a woman and attacked women in shelters. But the attacks happened months before Ontario (Toronto's province) protected trans people in a nondiscrimination law. So the law couldn't have been the cause.
"THERE'S A VULNERABILITY WE FEEL IN PUBLIC RESTROOMS WE DON'T FEEL IN OTHER PLACES"
While the issue is now being used primarily against trans people, historically bathroom fears have been regularly deployed against civil rights causes. It was used against black people to justify segregation — by invoking fears that black men would attack white women in bathrooms. And it was used to stop the Equal Rights Amendment, which tried to establish legal equality between men and women, because opponents claimed it would lead to the abolition of bathrooms for different genders, potentially putting women in danger.
Conservatives have latched on to this insecurity to propagate myths about the power of discriminatory laws to stop horrible attacks in bathrooms. And even though these are plainly myths with no evidence behind them, they have worked to sustain discrimination, from Jim Crow policies to North Carolina's anti-LGBTQ law.
Anti-transgender bathroom laws are bad for transgender people — but also for business
Obviously, the foremost victims of anti-transgender bathroom laws are trans people. Under these measures, trans people have to constantly fear using the bathroom that corresponds with their gender identity. As Lily Carollo wrote for Vox, "From now until the law is repealed or settled in court, or until my birth certificate is amended, I will keep breaking the law. I'm not the only one. I will be an anxious mess every time I use the bathroom, but I don't see any option. It's all I can do, really. I am a woman."
But these measures have also proven to be bad in another way: They cost jobs.
After North Carolina passed its law, PayPal and Deutsche Bank pulled expansions into the state that would have created hundreds of jobs. Several musicians, such as Bruce Springsteen and Pearl Jam, canceled concerts in the state. A+E Networks and 21st Century Fox said they would reconsider using North Carolina as a filming location in the future. And nearly 200 CEOs signed a letter asking Gov. McCrory to repeal the law.
THESE MEASURES HAVE ALSO PROVEN TO BE BAD IN ANOTHER WAY: THEY COST JOBS
Businesses have a financial incentive to act this way: A major goal of theirs is to attract new talent. But young hires are also more likely to be more accepting of LGBTQ issues,including trans people in bathrooms, and some of them may be LGBTQ themselves. So appearing supportive of LGBTQ rights can be one way that a company shows it shares the values of the up-and-coming workforce.
Whatever the reason, businesses' resistance to anti-LGBTQ laws is enough to make any lawmaker reconsider whether to pass these bathroom measures.
"Whether you're a Democratic governor or a Republican governor, virtually without exception, goal No. 1 is to keep jobs in your state and to attract new jobs that you don't currently have," Chad Griffin, president of the LGBTQ rights group Human Rights Campaign (HRC), previously told me. "That is one thing that is shared between conservative governors, liberal governors, moderate governors."
Most states still allow discrimination against LGBTQ people
So why do conservatives tap into these bathroom myths, risking a huge backlash as North Carolina has? They are essentially trying to stop the spread of LGBTQ rights. Specifically, they are trying to sustain a reality in which employers, landlords, businesses, and schools can discriminate against LGBTQ people without legal consequences.
Most states don't ban discrimination based on sexual orientation and gender identity in any of these settings.
So under most states' laws, an employer can legally fire someone because he's gay, a landlord can legally evict someone because she's lesbian, and a hotel manager can legally deny service to someone who's transgender — for no reason other than the person's sexual orientation or gender identity.
UNDER MOST STATES' LAWS, AN EMPLOYER CAN LEGALLY FIRE SOMEONE BECAUSE HE'S GAY
Currently, 20 states ban at least some forms of discrimination based on sexual orientation and gender identity, while two additional states ban discrimination based on sexual orientation. Some other states protect public but not private employees from discrimination. Many municipalities have nondiscrimination laws that only apply within their local borders, even in states that don't have such laws. And some companies prohibit discrimination in their own policies.
The protections vary from state to state. Massachusetts's protections for gender identity and Utah's protections for sexual orientation and gender identity don't apply to public accommodations. Some states also include exemptions for discrimination based on religious grounds. Enforcement varies, as well: Depending on the state, private lawsuits, fines, and jail time are all possible forms of punishment for discrimination.
The same is true in schools: Most states don't have civil rights laws that protect LGBTQ people from discrimination in education. Fourteen states have education laws that ban discrimination based on sexual orientation and gender identity, while Wisconsin protects students from discrimination based on sexual orientation but not gender identity. So in a majority of states, LGBTQ students have no explicit legal protections in schools.
At the same time, Americans strongly support nondiscrimination laws for LGBTQ people. In a 2015 survey by the Public Religion Research Institute, majorities in every single state said they want protections for LGBTQ people in the workplace, housing, and public accommodations.
But as Houston demonstrated, conservatives can turn public opinion by invoking fears of bathrooms. So that's exactly what they've tried to do in the past several months — by making LGBTQ rights battles predominantly about trans people in bathrooms and locker rooms.
Even if states don't pass laws protecting LGBTQ people, or even if they pass laws that allow discrimination, there may be a way to bypass these measures: federal law. Under federal civil rights laws, sex discrimination is banned in the workplace, housing, and education (but not public accommodations). LGBTQ rights advocates argue that since anti-LGBTQ discrimination is fundamentally about gendered expectations, anti-LGBTQ discrimination is prohibited under bans against sex discrimination.
The Obama administration, through the Department of Justice, believes federal law does protect at least trans people. In response to North Carolina's law, the Justice Departmentwarned the state that it's risked millions in federal funding for schools through its anti-LGBTQ law, because the measure violates bans on sex discrimination in the workplace and schools.
The courts will likely have the final word over whether federal civil rights laws really do protect LGBTQ people. But for the time being, it's a big risk — losing federal funds — that states have to consider before they pass anti-LGBTQ measures.
For LGBTQ groups, the strategy will focus on humanization and lobbying businesses
For LGBTQ advocates, the goal isn't just to wait until courts decide in their favor. After the losses in Houston and North Carolina, they have gone back to the drawing board to try to devise a way not just to stop the spread of anti-trans bathroom policies but also to get more cities and states to pass nondiscrimination protections for LGBTQ people.
First, just as same-sex couples were humanized in the same-sex marriage battle, trans people must be humanized to show the world that they are not deviant — as the link to attacks in bathrooms can suggest.
"Around the marriage issue, so many people had these false ideas of gay men as single sexual predators who were dangerous — really similar to the ways many people think of trans people," Janson Wu, executive director of the LGBTQ group GLAD, said. "But once we were able to show that they are brothers, sisters, parents, children, and that they work in the community and volunteer in their churches and community groups, and put them in the context of their lives, it was really critical to advancing the equal humanity and dignity of all people, particularly LGBTQ people."
"SO MANY PEOPLE HAD THESE FALSE IDEAS OF GAY MEN AS SINGLE SEXUAL PREDATORS WHO WERE DANGEROUS — REALLY SIMILAR TO THE WAYS MANY PEOPLE THINK OF TRANS PEOPLE"
That's why LGBTQ groups like Freedom for All Americans are now running ads in North Carolina that put a face on trans people. "This is clearly a piece that has been missing," Matt McTighe, the executive director of Freedom for All Americans, told BuzzFeed. "We need to humanize this issue, and to educate people on who transgender people really are."
Second, advocates want to rally business leaders against anti-LGBTQ laws to show that such measures can have major economic consequences. "[T]he increase in business [engagement and lobbying against these laws] has been key to our success," Griffin of HRC told me, "and I think it will be key to our success as we engage in these battles in the future."