Bans on same-sex marriage are now relics of the past. But for LGBT activists, the broader fight for civil rights isn’t over yet. In municipalities across the country groups and campaigners affiliated with the Religious Right have re-focused their energies on a new target: anti-discrimination measures.
“They’re grasping at straws to make people afraid that adding LGBT protections will hurt them,” Rose Saxe, a senior attorney for the American Civil Liberties Union’s LGBT and HIV Project, told Church & State.
The tactics resemble the Religious Right’s response to 1973’s Roe v. Wade ruling, which legalized abortion in America: The U.S. Supreme Court settled the issue, but opponents began seeking ways to restrict the ruling’s impact.
This isn’t a new strategy. Attacks on local ordinances and state bills that prohibit discrimination against LGBT people precede Obergefell v. Hodges. A number of small business owners have challenged these laws, typically after they’ve been fined for violating them.
These cases have thus far not succeeded in courts. In 2014, the Supreme Court refused to hear an appeal of the New Mexico State Supreme Court’s verdict in Elane Photography v. Willock, which found that a self-employed photographer had violated the state’s anti-discrimination law by refusing to photograph a same-sex wedding. (The high court’s refusal to hear the case left the lower court’s ruling intact.)
And last February, a Washington district court judge ruled that Barronelle Stutzman, who owns Arlene’s Flowers in Richland, Wash., had violated the state’s anti-discrimination law when she refused to provide flowers for a same-sex wedding. The case, Ingersoll v. Arlene’s Flowers, is currently on appeal.
But lesbian, gay and bisexual people aren’t the only individuals targeted by the Religious Right. Transgender people are often singled out for special attacks, and these assaults appear to be growing.
In Houston last fall, those attacks crushed a proposed anti-discrimination measure known as the Houston Equal Rights Ordinance (HERO). It would have created citywide protections for LGBT people and a host of others, but it faced major obstacles from the beginning.
The Houston City Council originally passed HERO in May 2014. At the time, the law enjoyed significant support from LGBT activists and the city’s business community, but it lasted a mere three months before a legal challenge from local right-wing pastors halted its enforcement. The Texas Supreme Court eventually ruled that Houston must put the measure to a public referendum, and right-wing activists mobilized quickly to prevent it from remaining law.
“This ordinance will allow men to freely go into women’s bathrooms, locker rooms and showers. That is filthy, that is disgusting, and that is unsafe,” one ad blared.
That’s typical of the rhetoric produced by the ad’s creator, the Campaign for Houston. The group, organized by former Harris County Republican Party chair Jared Woodfill, latched onto the controversial issue of transgender rights as a way to defeat the measure.
On its website, Campaign for Houston damned HERO as an attack on the “traditional family” and a threat to “free speech and religious expression.” Its members, it claimed, did not want “their daughters, sisters or mothers forced to share restrooms in public facilities with gender-confused men.” Its activists successfully branded the measure as the “bathroom bill” and disseminated graphics that read “No Men In Women’s Bathrooms!”
Last November, they won. Voters soundly rejected the bill, killing the issue for now. “Our message worked,” Woodfill said at the time.
Their message, of course, is that transgender women are actually confused men and that their presence in public bathrooms, locker rooms and dressing rooms poses a threat to women. LGBT activists have heard this rhetoric before, and they say it’s far out of step with reality.
The National Center for Transgender Equality defines transgender people as individuals “whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth.” Transgender people may identify as straight, gay, lesbian or bisexual and may or may not undergo surgery to confirm their gender identities.
Since there’s no federal law prohibiting discrimination against LGBT people, local ordinances are all that prevent businesses and other entities from refusing to serve someone because of their gender identity or perceived sexual orientation. Without HERO, Houston’s LGBT community is still vulnerable.
Dr. Amy Stone, an associate professor of sociology and anthropology at Trinity University in San Antonio, told Church & State that anti-discrimination laws have “pretty consistently” been referendum issues since 1977.
“That’s been a tactic the LGBT community uses to get things passed at a local level,” Stone said. Anti-LGBT activists have opposed these bills for just as long, and their message has changed little over the years. “It’s just getting more press,” she explained.
Stone described the bathroom claims as “a huge fear-based tactic” that began to emerge in the 2000s.
“They [anti-LGBT activists] never refer to trans women as women,” Stone said, adding that they assert that transgender women aren’t really women at all. These activists don’t operate in a void, either. According to Stone, they turn to national groups like Alliance Defending Freedom (ADF) and Focus on the Family and its network of state Family Policy Councils for guidance.
“It really becomes a turnout game,” Stone said. “If the right can turn out their voters – and fear is a great way to turn people out – they win.”
In a recent report for Political Research Associates, Cole Parke also identified ADF as a major antagonist in the fight against extending equal rights to transgender people.
ADF promotes a model bathroom policy for public schools that rejects even the existence of transgender people by conflating gender identity with chromosomal sex. It also urges schools to restrict bathroom and locker room use to one chromosomal sex or to force transgender students to use separate facilities.
These suggestions directly contradict the federal government’s guidance on the subject. In 2014, Department of Justice officials announced that transgender students are protected under the provisions of a federal 1972 education act that prohibits sex discrimination at publicly funded schools.
The Department of Education moved quickly to enforce this: It ruled last year that an Illinois school district violated the law when it refused to allow a transgender girl to use the locker room that corresponded with her gender identity.
School districts that attempt to follow the government’s guidance increasingly run afoul of ADF and its allies. Parke reports that the group has launched “targeted attacks” on school districts that extend full protections to transgender students.
This has already resulted in legal action. The Gloucester County, Va., school district adopted ADF’s suggestions to deny transgender student Gavin Grimm access to boys’ bathrooms. Grimm sued, with the assistance of the ACLU. The case is ongoing.
According to critics, ADF’s work to restrict transgender rights is hardly a departure from its previous activism.
“ADF’s anti-LGBTQ meddling in schools dates back to at least 2005, when it launched the ‘Day of Truth’ campaign ‘to counter the promotion of the homosexual agenda and express an opposing viewpoint from a Christian perspective,’” Parke notes. The group is also a vociferous opponent of same-sex marriage.
And it isn’t the only Religious Right group at work. Last November, Liberty Counsel threatened to sue the Mount Horeb, Wisc., school district over a planned reading of I Am Jazz, a children’s book co-written by teenage transgender activist Jazz Jennings. In a letter to parents, the principal of Mount Horeb Primary Center explained that the book had been assigned to prepare students for a classmate’s gender transition.
A disgruntled parent reported the matter to Liberty Counsel, and in a legal demand letter, the group ordered the school district to cancel the reading.
“The District is not free to override parental rights and religious beliefs by subjecting impressionable children to confusion about something as important as gender and sexuality. The reading of I Am Jazz and following discussions about gender confusion and sexuality are the first step toward remaking the moral beliefs of District students, which the District may not do,” wrote Richard Mast, an attorney for the group.
ThinkProgress, a news website, reported that the school subsequently cancelled the assignment – even though the principal had stated that parents could exempt their children.
Earlier this year, Nebraska Catholic bishops urged the Nebraska School Activities Association, a body that includes both public and private schools, to require high school athletes to participate in sports based on the sex indicated on their birth certificates.
This activism isn’t limited to organizations. In 2014, Michelle Duggar of reality TV fame recorded a series of robocalls in an effort to defeat an anti-discrimination ordinance in Fayetteville, Ark. Duggar said she doubted parents “would stand for a law that would endanger their daughters or allow them to be traumatized by a man joining them in their private space”; voters initially rejected the proposal, but passed it in a special election last year.
These arguments are based on older talking points. Saxe told Church & State that’s no accident. “They wanted to stop us from getting marriage, and they were unable to do so. Some of them have moved on. I think they view trans rights as a way to stop us from getting protections,” she said.
Media Matters for America (MMFA), a progressive watchdog, noted that campaigners are “recycling” anti-gay rights arguments to oppose protections for transgender people.
“Now that the debate over marriage equality has died down, the ‘transgender slippery slope’ argument is emerging in debates over protections for trans people,” wrote MMFA researcher Rachel Percelay. “Opponents suggest that allowing transgender people to define their gender identity would open the floodgates, with people claiming to be a cat, a flower, or a Cocker Spaniel. Fox News and other conservative media outlets have deemed non-discrimination protections for transgender people a ‘slippery slope.’”
Presidential candidates have also weighed in.
“Men go to men’s rooms, women go to women’s rooms, and there really shouldn’t be a whole lot of confusion about that – public accommodations. And I don’t think we should be making life more confusing for our children,” New Jersey Gov. Chris Christie (R) said at a December 2015 rally.
U.S. Sen. Ted Cruz had some thoughts too.
“Look, these guys are so nutty that the federal government is going after school districts, trying to force them to let boys shower with little girls,” Cruz said in November. “Now listen: I’m the father of two daughters, and the idea that the federal government is coming in saying that boys, with all the God-given equipment of boys, can be in the shower room with junior high girls – this is lunacy!”
In an interview with Fusion’s Jorge Ramos, Ben Carson suggested building “transgender bathrooms” for people to use and said it’s “unfair” for transgender people to “make everyone else uncomfortable.” Carson linked the matter to the broader issue of LGBT protections, which he characterized as “special rights.”
There isn’t much, if any, evidence to support bathroom fears. Mic, a news website, reported last April that there haven’t been any documented incidents of transgender people assaulting or harassing people in restrooms.
Despite the lack of evidence, the bathroom myth remains popular. It torpedoed HERO and now threatens LGBT protections in other municipalities. It’s also inspired a spate of so-called “bathroom bills,” which would prohibit transgender people from using the bathroom that corresponds to their gender identity. Legislators have been somewhat vague on how the bills would actually be enforced.
Florida state Rep. Frank Artiles (R-Miami) told Buzzfeed News last year that his Single-Sex Public Facilities Act was intended to protect “public safety.”
“While I understand there are transgender people who want to use bathrooms however they want to feel, that is irrelevant to me,” he told the website, explaining that a person’s “plumbing” would determine which bathroom they were legally permitted to use.
As written, Artiles’ bill would have allowed customers to sue a business for allowing transgender people in the “wrong” bathroom; it also would have punished violators with a fine of up to $1,000. It died in committee.
In 2013, Mic also reported that a similar bill in Arizona would have allowed the police to stop anyone suspected of being transgender from using a bathroom restricted to a single sex. A person would then have to show “proof of sex” and if the sex on their government-issued ID did not match their gender presentation, they could be sentenced to six months in jail and a $2,500 fine. Its sponsor, State Rep. John Kavanagh (R-Fountain Hills) proposed it after the Phoenix City Council voted to pass an anti-LGBT discrimination measure. The bill died.
In Indiana, state Sen. Jim Tomes (R-Mt. Vernon) is pushing S.B. 35, which would require public schools to identify students by their anatomy and restrict bathroom access based on that identification. It would also apply the same standard to all public facilities. Violators could face a year in jail.
Max Nielson, a transgender rights activist and college student, told Church & State that bills like Tomes’ represent a serious threat to her basic civil rights.
“For many trans people, myself included, the right to make a decision about where we relieve ourselves is as much a matter of safety as it is banal necessity,” she said. “Even without legislative validation, people attempt to police my bathroom choices, informing me that I’m heading for the wrong facility regardless of which I select. Legislation like this emboldens would-be gender police to humiliate and persecute trans people for daring to participate in public life.”
Nielson said the Religious Right bears much of the blame.
“Religion directly informs the views of anti-trans rights campaigners, like Michelle Duggar,” she added. “Religious Right groups excel at presenting trans issues to people who might not fully understand them in a way that incites a kind of panic. Trans rights initiatives are defeated when the voting public is terrified of a boogeyman in a dress invading the women’s bathroom and assaulting people. Religious Right groups rely on their ability to propagate and harness ignorance and fear to block anti-discrimination legislation.”