Lawmakers raise concerns about locker rooms at trans rights hearing
During a Judiciary Committee hearing on the transgender rights bill July 14 some members of the committee indicated that they had concerns about the bill, particularly about its impact on bathroom and locker room facilities. In the weeks leading up to the hearing opponents of the bill, led by the conservative Christian advocacy group Massachusetts Family Institute (MFI), had waged a media and lobbying campaign to brand the legislation, House Bill 1728, as "the bathroom bill," claiming that it would enable sexual predators to dress as women and enter women's bathroom and locker room facilities. Only one committee member, Rep. Colleen Garry (D-Dracut), raised that scenario as a serious concern during the hearing, but other committee members, including House committee chair Rep. Eugene O'Flaherty (D-Chelsea), said they believed the bill might threaten the rights to privacy and modesty of non-transgender people using locker room and bathroom facilities. H.B. 1728 would amend the state's non-discrimination and hate crimes laws to make them transgender-inclusive.
Several committee members asked questions about the bill during the testimony of Jennifer Levi, an attorney for Gay and Lesbian Advocates and Defenders (GLAD) and one of the lead advocates working to pass the bill. O'Flaherty asked Levi how the law would impact his own right to privacy if he was using the locker room at a men's gym and someone else was using the facilities who he believed to be transgender.
"If an individual comes into the locker room and [is] not, either from an anatomical perspective or an expression perspective, subjectively considered by me to be considered male, and I feel that my right to privacy, along with my right to enjoy that heath club because it's a male-only heath club [is threatened], how would you answer the concerns that arise from members of those health clubs or from other facilities of public accommodation?" asked O'Flaherty.
Levi responded that the law would allow a transgender person to use gym facilities consistent with his or her gender identity or expression, which would mean transgender men would be permitted to work out at men's gyms and use the locker room facilities. She said gyms could not force transgender members to use separate changing facilities or bathrooms set apart from the rest of the club, but they could make such facilities available to other members who were uncomfortable sharing space with a transgender person.
"It would be permissible for those facilities to provide you with a more private space than the one you're in if there's a reason why you find it to be offensive to be around someone else's body you've determined to be inconsistent with your gender expression. ... It's always an option for you to make choices about having more privacy, and that will remain true," said Levi.
Another committee member, Rep. John Fernandes (D-Milford), asked how gym owners would determine whether transgender clients were eligible to use the men's or the women's facilities. Levi answered that in Boston, which has had a citywide transgender non-discrimination ordinance since 2002, some gyms have asked for a note from a medical provider indicating that the client has gone through a gender change protocol, which may or may not involve surgery. She said under H.B. 1728 gym owners could require such documentation. Fernandes replied that based on his reading of the law gym owners might not be permitted to ask for documentation of a gender change.
"I see the law as much broader than that. ... I'm not saying it might not be interpreted that way. I don't see it in the statute as written," said Fernandes. He asked whether the law might allow gyms to create separate facilities to protect "the modesty of the non-transgender women," and Levi answered that the law would not allow gyms to segregate transgender members from the rest of the gym membership.
Garry told Levi she was concerned that the trans rights bill could pose a threat to public safety, although she added she did not believe transgender people themselves would be the aggressors.
"I have a real concern, and I will say it point blank, I don't believe transgender people would be pedophiles or endanger anyone, but the fact that we have pedophiles out there that could dress like a woman and go into a ladies woman and use that opportunity, and how do you suggest we fight that?" asked Garry.
Levi replied that even without passage of H.B. 1728 there was nothing stopping a sexual predator from dressing as a woman and sneaking into a women's bathroom. She argued that the solution was "robust enforcement of our criminal laws" against people who commit crimes in bathrooms and locker rooms, but she said the goal of H.B. 1728 was to ensure, among other things, that transgender people have access to appropriate public facilities.
"The reality also is that transgender people do need restrooms and do need to use public facilities, and so what this law does is provide predictability and clarity for those individuals that manage those facilities," said Levi.
Locker rooms rights still contested
The hearing marked the second time the committee heard testimony on the transgender rights bill. Last year the committee heard testimony on an earlier version of the bill, but it died in committee at the end of the session. This session advocates succeeded in getting a majority of lawmakers in both the House and Senate to co-sponsor H.B. 1728, all but assuring it will pass if it comes up for a vote. But in order to reach the floor of each chamber the judiciary committee must give it a favorable vote, and lawmakers' comments about bathroom and locker room facilities at the hearing suggest that some are not yet convinced. Advocates believe that O'Flaherty's support in particular will be crucial to getting a successful committee vote, but so far the House chair has declined to state a position on the bill publicly. A coalition of LGBT and allied organizations, led by the Massachusetts Transgender Political Coalition (MTPC), is working to pass the bill, which was filed by Reps. Carl Sciortino (D-Medford) and Byron Rushing (D-Boston) and Sen. Ben Downing (D-Pittsfield).
During the hearing women's and children's advocacy groups testified in support of the bill in an effort to refute claims that it would create dangers in public restrooms and locker rooms.
"By choosing to use a fear-mongering approach to limit someone's civil rights, the opposition is banking on our worst fears as women, as men, as parents, friends and colleagues, by promoting this terrible myth that women and children are most in danger with a transgender person, when in reality they are most in danger in their own homes or on dates with someone who professes to love them regardless of their attributes," said Toni Troop, director of communications for Jane Doe, Inc., a statewide domestic violence coalition. She said the majority of sexual assaults are committed in the home by someone known to the victim, not by strangers in public settings.
Christina Knowles, state director of the Massachusetts chapter of the National Organization for Women (Mass NOW), said transgender women deserve the protections afforded by H.B. 1728.
"Transgender women are women, and they do not deserve to be singled out and denied their basic civil rights," said Knowles.
Yet representatives from the health club and gym industry testified that the legislation as written would threaten their businesses. Helen Durkin, executive vice president for public policy for the International Health, Racket and Sports Club Association, said that her association would only support the bill if it was amended to exclude locker rooms and bathrooms from the provisions of the law.
"I'm the person for the last 20 years that probably more than any other person has taken the call from the health club that says, 'I have someone in my club, what do I do?' And I can tell you that this bill in its current form provides absolutely zero clarity for what a club owner can do," said Durkin. "We believe that it's possible both to protect the rights of transgender individuals as well as the privacy rights and modesty rights of men, women and children."
Durkin claimed that similar exemptions have been put in place in the trans-inclusive non-discrimination laws in Illinois, Oregon, Minnesota and New Mexico.
Levi told Bay Windows that Durkin mischaracterized the laws in those other states. She said in New Mexico and Minnesota there are general exemptions in the non-discrimination laws for bathrooms and locker rooms, but she said those provisions were added to the law before the passage of transgender non-discrimination bills in those states. She said she was uncertain whether the wording of those exemptions would allow operators of bathroom and locker room facilities to discriminate against transgender patrons. Levi said she was aware of no such exemptions in Illinois and Oregon.
During her testimony Durkin said as a club member she would be upset about her daughters seeing someone with an anatomically male body in the women's locker room.
"The real issue is in locker rooms you undress, you dress, you shower," said Durkin. "My children, my two girls, would most likely be exposed to an anatomic male, and that's something I think they have a right to be protected against."
Managers of two Boston-area gyms, Boston Athletic Club and the Boston branch of Sports Club/LA, also testified in favor of exempting locker rooms and bathrooms from H.B. 1728.
Transgender community speaks
While much of the testimony in favor of the bill came from professional advocates, many members of the transgender community also turned out to ask lawmakers to pass H.B. 1728 and to tell their own stories. Danicamarie Ali, a transsexual woman from Springfield, told committee members that she has been harassed by the police and denied jobs for being transgender. She said she has tried to move out of the dangerous neighborhood where she now lives, but several landlords have declined to rent her an apartment after discovering she is transgender. She said she has also faced blatant discrimination from banks.
"Recently I applied for credit from two local banks. I was told ... that they could not work with me based on my gender identity," said Ali. "They said they couldn't verify my gender and that they didn't usually work with people like me. I do not understand why my gender could make me ineligible for this opportunity."
Alishia Ouellette, a Danvers firefighter, told lawmakers about her experience transitioning on the job about five years ago. She said her transition was successful and the fire department was supportive, but had they not supported her she said the consequences would have been devastating.
"This decision was extremely difficult and painful. I was putting everything on the line. Not only did I have to deal with friends and family, but I was putting my career and my retirement [on the line as well]," said Ouellette. "I also believe that by coming out as a transgender woman that I was also putting my life on the line, including risking my life in various circumstances. I gave everything just to be me."
Dana Zircher, a senior software engineer for Microsoft, said her own experience transitioning on the job was also positive, but she said her story is the exception rather than the rule. She said since her transition she has continued to make positive contributions to the company.
"Since my transition I have designed new software architectures, I have been issued patents in synchronization and communications technologies, and I have been a leading contributor to the Microsoft Office suite. Being a transgender person has never negatively affected my ability to perform on my job," said Zircher.