What do you call it when a person enters a bathroom but the sign outside doesn’t match the sex listed on his or her birth certificate? Disorderly conduct, according to a bill offered earlier this month by Arizona state Rep. John Kavanagh. But the measure sparked outrage in the LGBT community, which saw discrimination against transgender citizens. Kavanagh responded with a revamped, more limited version, which protects businesses that bar such practices from civil or criminal liability. After a contentious seven-hour hearing on Wednesday dominated by opposition to the proposal, a House panel voted along party lines to approve it.
As the Supreme Court considers same-sex marriage, and with gay couples enjoying more rights and protections than ever, pitched debates in state capitals are a reminder that transgender rights remain unclear and controversial. Of the roughly 9 million people in the U.S. who identify as lesbian, gay, bisexual or transgender, according to a 2011 study, roughly 700,000 say they are transgender.
One reason that transgender rights remain murky is because the American public is still coming to understand who they are: a survey released in 2011 showed that 3 in 10 Americans cannot identify what it means to be transgender and dictionary definitions aren’t cut-and-dry. (The Oxford English Dictionary’s rather tortured entry: “a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these.”) Confusion or discomfort about where gender lines are drawn make bathrooms a perennial hot-button, because those are the only places most people are self-segregating based on their gender in an average day.
The fight for transgendered rights has lagged behind that of gays and lesbians. But the measures on state dockets aren’t all a blow to the movement: while activists consider Arizona’s “bathroom bill” a setback, other states are considering expanded protections for the transgendered, who are hopeful their cause may be headed for the kind of mainstream acceptance enjoyed by the gay rights movement.
A Democrat-backed California proposal would allow students to take part in sex-segregated school programs based on their gender identity, irrespective of the sex on their records. So, a student born male but who identifies as female could play on the girls’ tennis team and use the girls’ locker room. Opponents say “gender identity” is too broad to serve as an absolute guide and warn that such a bill could leave school facilities and programs at risk for abuse. In the District of Columbia, council members are considering a proposal that would make it easier for citizens to change the sex listed on their birth certificate, requiring only an affidavit signed by a doctor rather than a court order.
The second version of the contentious Arizona bill is nearly identical to one defeated in the Maine legislature two years ago. Rep. Kenneth Fredette, the sponsor of that bill, says that the legal boundaries of what it means to be transgender are still “emerging” and that communities need to have conversations about how to deal with sex-segregated facilities and programs without “throwing darts at people for being bigots because they ask questions.” He says the purpose of his bill was to protect businesses from being sued. “It wasn’t any attempt to discriminate against anybody,” the Republican Minority Leader says.
Transgender rights attorney Lisa Mottet disagrees. She says that such bills are “mean-spirited,” back-handed ways to marginalize transgender individuals. Arizona residents are “being told that the cities they live in cannot protect them from discrimination in bathrooms, and that’s a terrible message to send to the community,” she says. Mottet, who works for the National Gay and Lesbian Task Force, argues that while statutes regulating bathroom access are rare, non-discrimination laws inherently protect the right of a transgender patron or student to use the bathroom of their choice. Sixteen states and the District of Columbia have passed such non-discrimination laws, as have hundreds of colleges and towns.
Mara Keisling, executive director of the National Center for Transgender Equality, says that labeling all single-stall bathrooms as unisex is one easy fix, though that sidesteps broader questions about the status of transgender people, when it comes to bigger bathrooms—or prisons or homeless shelters or high school sports teams. “Transgenders simply want to be themselves and not hide their entire lives,” Mottet says. “The least we can do as a society is say we respect that.”