The State We're In: Part II
A History of "Gender Identity" in Massachusetts Law (2011-2016)
Public Accommodations
On May 16, 1865, Massachusetts became the first state to legislate anti-discrimination in public accommodations. The Act Forbidding Unjust Discrimination on Account of Color or Race stated, "[n]o distinction, discrimination or restriction on account of color or race shall be lawful in any licensed inn, in any public place of amusement, public conveyance or public meeting.” Since then, Massachusetts has continued to pass legislation to protect the categories of class, religion, national origin, sex, sexual orientation, and in 2016, “gender identity.”
Massachusetts defines public accommodations as “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.” This can include but is not limited to, hotels, restaurants and bars, theaters, service establishments, fitness facilities, healthcare facilities, and childcare facilities. Public accommodations also include sex-segregated spaces such as “a rest room, barber shop, beauty parlor, bathhouse, seashore facilities or swimming pool, except such rest room, bathhouse or seashore facility as may be segregated on the basis of sex.”
Sex-segregated Spaces
In 1887 Massachusetts took another historical first step by becoming the first state to legislate sex-segregated bathrooms statewide by passing “An Act to Secure Proper Sanitary Provisions in Factories and Workshops.”
Sect. 2. Every person employing five or more persons in factory, or employing children, young persons or women, five or more in number, in workshop, shall provide, within reasonable access, sufficient number of proper water-closets, earth-closets or privies for the reasonable use of all persons so employed; and wherever male and female persons are employed in the same factory or workshop, sufficient number of separate and distinct water-closets, earth-closets or privies shall be provided for the use of each sex, and shall be plainly designated, and no person shall be allowed to use any such closet or privy assigned to persons of the other sex.
There are those such as Terry Kogan, a professor at the University of Utah's College of Law, who believe that the 1887 law was passed for sexist or Puritan reasons. W. Burlette Carter, however, argues in her paper, Sexism in the “‘Bathroom Debates’: How Bathrooms Really Became Separated by Sex”, that these laws were enacted to protect women from sexual harassment.
There is very little available on the legislative history of the 1887 Massachusetts statute. However, we do know about other similar statutes passed in other jurisdictions around the same time. New York established its factory inspection system in 1886. The 1886 New York factory inspection report argued for sex‐separation of bathrooms and even different entrances as a curb on sexual harassment in the workplace (Sexism in the “Bathroom Debates,” 280).
Continuing its first-in-the-nation track record, Massachusetts became the first state to allow single-sex health clubs by law. In 1998, a provision was added to the General Laws, Chapter 272, Section 92A, which would allow fitness facilities to discriminate based on sex as long as “such facility does not receive funds from a government source.” This law was enacted as a response to a court case in 1997 when a lawyer named James Foster sued Boston-based Healthworks Fitness Centers for Women for discriminating against men. The court ruled in favor of Foster and found that the fitness center violated the public accommodation law against discrimination based on sex. Healthworks and other women-only fitness centers turned to the legislature for an exemption to allow single-sex fitness centers. At the public hearing about the proposed law, “[n]umerous women who had been ordered by doctors to exercise for various ailments testified they would quit if men were allowed to join their clubs. They cited concerns such as timidity, performance anxiety, body image problems and sexual abuse,” reported South Coast Today on Feb. 6, 1998.
Massachusetts has a long history of recognizing the importance of protecting sex-segregated spaces for women. In 2013 a bill would be proposed that would end those protections in favor of “gender-identity.”
An Act Relative to Transgender Anti-Discrimination
In 2011 Massachusetts passed “An Act Relative to Gender Identity” which added “gender identity” protections for employment, housing, credit/lending, and public education. Protections for ‘gender identity” in public accommodations were proposed in the 2011 bill, but ultimately omitted due to strong dissent from the opposition, and the bill was ultimately passed without them. In 2015 Senate Bill 735 or “An Act Relative to Transgender Anti-Discrimination” (previously S.643, 2013-2014) was presented by Senator Sonia Chang-Diaz, and House Bill 1577 (Previously 1589, 2013-2014) was presented by representatives Byron Rushing and Denise Provost. The text of the bills consisted of the excised portions of the 2011 bill. This not only included adding “gender identity and expression” to existing public accommodations laws, but also a paragraph that would turn “sex-segregated” spaces into “gender-segregated” spaces.
An owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement that lawfully segregates or separates access to such place of public accommodation, or a portion of such place of public accommodation, based on a person’s sex shall grant all persons admission to, and the full enjoyment of, such place of public accommodation or portion thereof consistent with the person’s gender identity.
The advocates for “An Act Relative to Transgender Anti-Discrimination” stressed that the bill was sorely needed and should have been included in the 2011 bill. They argued that as employees, trans-identified individuals were protected from discrimination, but they could still be discriminated against if, for example, they were to enter their place of employment, not as an employee, but as a patron. Despite the section on sex-segregated spaces being the most contested piece of the proposed legislation, advocates never sought to pass a modified version of the law that would prohibit discrimination against trans-identified people, but also allow businesses to keep certain spaces sex-segregated. Advocates did, however, try to hide this proposed change in sex-segregated spaces from the public.
Changing Hearts, Minds, and Votes
Trans advocacy groups lobbied hard for the proposed bill. According to the website of the Massachusetts Transgender Political Coalition (MTPC), one of the groups that also lobbied for the original 2011 bill, “[o]ver the course of five years, MTPC successfully lobbied for the passing of An Act Relative to Transgender Anti-Discrimination, despite ambivalent support from Governor Charlie Baker.” Another group, Freedom Massachusetts (now, Freedom for All Massachusetts) held a lobby day to talk to lawmakers with the hope that hearing personal stories could make a difference. “When you think back to our battle with marriage equality, when lawmakers heard stories it really changed hearts, minds, and votes,” said Kasey Suffredini, co-chair of Freedom Massachusetts (Rainbow Times, Oct. 3, 2015).
Freedom Massachusetts claimed to be a bipartisan coalition formed in June 2015 to lobby for nondiscrimination protections for trans-identified people. According to their website1, their coalition included:
More than 250 businesses large and small
More than 350 clergy, faith leaders, and congregations across the state
11 labor unions representing more than 750,000 families
16 statewide women’s and victim’s advocacy groups
14 mayors from across the state
Every major New England professional sports team
The state’s leading statewide law enforcement associations and dozens of local law enforcement leaders
The entire Massachusetts Congressional delegation
The attorney general, and bipartisan leaders in the House and Senate
It is implied by the website that all of these people and businesses agreed with the proposed legislation in its entirety. However, much of the information on the website neglected to inform the reader of the impact the legislation will have on sex-segregated spaces. For example, sex-segregated spaces were not mentioned in the pledge readers were urged to sign their name to:
State law currently provides nondiscrimination protections for sexual orientation and gender identity in employment and housing, but does not extend to transgender people in public accommodations. That means there are no explicit protections for transgender people in the places everyone is when they’re not at home, work or school – such as malls and restaurants, parks and government offices.
Sign the pledge if you agree it's time to update the law and right this wrong!
As a Massachusetts resident, I strongly support protecting all people -- including transgender Bay Staters -- from all forms of discrimination.
The only two references to sex-segregated spaces on the website fact sheet were a note that the law will not require “new construction of restrooms or other sex-segregated facilities,” and that “[the 2012 DESE] guidelines ensure that transgender students may use sex-segregated facilities consistent with their gender identity. There have been no issues with implementation.” The fact sheet does not inform the readers that the law would turn all public sex-segregated spaces into mixed-sex spaces by basing entry on an individual’s “gender identity.”
Emotional Arguments
A public hearing for bills S.735 and H.1577 was held by the Joint Committee on the Judiciary on Oct. 6, 2015. This hearing was different in tone from the one held in 2011 for the “gender identity” bill. In the 2011 hearing, the chairman was adamant that both sides of the debate would be heard and she admonished the gallery anytime they clapped or cheered for a particular side. In the 2015 hearing, Chairman Fernandez, although he allowed ample time for both sides to present testimony, his bias in support of the bill was clear. After the testimony of Senator Chang-Diaz, he allowed the crowd to applaud. Later in the hearing, he voiced his strong support for the testimony of Brandon, a 14-year-old trans-identified girl. “I was very impressed by his [sic] statement today and by his [sic] courage,” said Chairman Fernandez.
The supporters of the proposed legislation claimed that the bill was sorely needed in the state, but few offered concrete proof that trans-identified people were at grave risk of discrimination while patronizing public businesses or services. The leader of the MTPC testified “I am here to deliver approximately 300 pieces of testimony in support of this legislation” and that “the Mass Trans Political Coalition gets hundreds of calls every year of trans facing discrimination.” However, she claimed that the testimony was personal and wouldn’t provide any specific detailed examples in her public statement. Without more specific information it is unclear how many of those 300 complaints were legitimate cases of discrimination.
Other trans-identified speakers testified about their fear of being discriminated against in public transportation or restaurants, but this fear was not based on any previous experience of discrimination at those establishments, only an imagined fear that they would face prejudice. Many of these same advocates testified to their fear of being stigmatized by hospital or emergency room staff, but again this fear was not based on any active discrimination against them, but rather based on the thought that they would be forced to reveal their true sex in order to receive care.
Other speakers, such as a trans-identified man named Chastity, shared experiences that failed to make a strong public accommodation discrimination case. “I was on the B-line train and I was assaulted by six guys because I had a trans rights sticker on my book bag. They began to call me names. It turned physical. I was actually thrown off of the train.” Chasity shouldn’t have been harassed on public transportation for his identity, but harassment by patrons of an establishment or service is not the same as discrimination by an establishment or service. Chastity was allowed to use the subway in the same manner as everyone else. He wasn’t denied service or forced to sit in a specific “transgender-only” section. The people who harassed and assaulted him were not specified in his story to be employees of MBTA and when he was thrown off the subway it was for engaging in a physical fight that endangered the safety of the other passengers, not because of his identity.
The supporters of the bill denied that allowing males into female spaces would make women and girls unsafe, with Senator Chang-Diaz calling the argument a “red herring.” A woman on behalf of the Women’s Bar Association testified “I am not buying the fact that sexual predators are going to use this law to come into rooms like this, a bathroom or a locker room to commit their crimes. As we all know, they commit the crimes in the dark parking lot, in dark parks.” This was her testimony despite hearing multiple examples in the five hours preceding her time in which opponents of the bill cited cases in Oregon, Toronto, and California, where men did, in fact, dress as women to commit crimes, such as harassment and sexual assault, in female sex-segregated spaces.
Many supporters of the bill, including Attorney General (now current governor) Maura Healey, claimed that transgender-identified people were at risk of harassment when made to use the sex-segregated space that matched their sex and not their “gender identity.” “What we do see and what is real is that transgender people are targeted for crime, are harassed and are attacked in restrooms, locker rooms and in other places of public accommodation,” said Healey. However, none of the testimony by supporters included an example of a trans-identified person being harassed or assaulted in a restroom by members of their own sex.
Brandon, the trans-identified female student testified, “I asked to use the boy’s bathroom because that's where I felt safe. Because that's who I am. I am a boy. I was told no because of the fact that my anatomy was not male. I was then offered the staff bathroom, and when I used the gender-neutral bathroom, male students would push and shove me into the wall and call me a freak.” Her harassers at the school were male, so it can be assumed that Brandon would not have been safe in the boy’s room, despite her claims to the contrary. Other speakers testified that they were harassed or assaulted not for using the bathroom consistent with their sex, but for trying to use the bathroom of the opposite sex.
Throughout the hearing, advocates of the bill continuously compared discrimination against trans-identified people with the historical discrimination against black Americans. When an opponent of the bill asked the committee “What do we say to those 200 girls” who walked out of a Missouri school when forced to share a locker room with a male student, a member of the committee responded with, “What we said to the students at Little Rock.” Comparisons to other historically marginalized people, such as Jews or people with disabilities were also made in the testimonies of supporters. Johnathan Alexander, legal council at the Massachusetts Family Institute testified that these comparisons were “intellectually dishonest:”
While it's true that there was a time in our country where bathrooms were labeled white only and some others labeled colored only, we as a society have rejected that segregation because we recognize that there is no rational basis for limiting bathroom access based on the color of someone's skin. However, there is a rational basis for requiring biological men to use the men's room and biological women to use the women's room. That's the whole purpose of having separate bathrooms for the two sexes.
A Bill Becomes Law
At Boston Spirit's LGBT Executive Networking Night on April 13, 2016, Governor Charlie Baker was booed off the stage for not enthusiastically endorsing the proposed legislation. “You have my commitment tonight that if and when the bill gets to my desk I will make sure I talk to all parties involved before we make any decision.” Protestors chanted that he “sign the bill,” and held signs that read “Public Spaces = Our Spaces.” Governor Baker, a Republican, had voiced his opinion in interviews that the new bill was unnecessary and that the trans-identified community in the Commonwealth was sufficiently served by the passing of the 2011 bill and the Massachusetts Committee Against Discrimination (MCAD). However, on Tuesday, May 31, 2016, he agreed to sign the House version of the bill if it passed, which it did on June 1, 2016.
The bill passed by a vote of 116 to 36. The House and Senate versions of the bill differed, with the House bill stipulating that “The Attorney General’s Office shall issue regulations or guidance for referring to the appropriate law enforcement agency or other authority for legal action any person who asserts gender identity for an improper purpose….” The Senate and the House bills were rectified before the bill appeared on the governor’s desk, with the Senate bill adopting the stipulations proposed by the House.
After the bill was signed by Governor Baker on July 8, 2016, two supplementary documents were created to help businesses and other places of public accommodation comply with the new law. MCAD created the “Gender Identity Guidance” and Maura Healey and the office of the Attorney General released “Gender Identity Guidance for Public Accommodations.” Examples of the guidance in the Attorney General’s document include:
Does the law prohibit sex-segregated facilities, including men’s/women’s restrooms, locker rooms, and changing rooms? No. Places of public accommodation may still maintain sex-segregated restrooms, locker rooms, and changing rooms. However, under this law, individuals may use whichever sex-segregated space is most consistent with their gender identity,
As well as:
Employees of a place of public accommodation should not assume an individual’s gender identity solely by appearance. The fact that a woman, whether transgender or not, is perceived as having a “masculine” appearance is not a legitimate reason to exclude her from, or question her presence in, a sex-segregated facility intended for women.
The guidance insists that an owner or manager of a place of public accommodation should believe a person’s stated “gender identity” without any additional proof. “In the vast majority of cases, it is not appropriate for a place of public accommodation to request documentation of an individual’s stated gender identity.”
Public Spaces = Our Spaces
In her guidance document, Maura Healey tried to make a case that the new public accommodations law wouldn’t change anything. That the state wouldn’t prohibit sex-segregated spaces. But by allowing people to choose which sex-segregated spaces to use based not on their sex but on their “gender identity,” the law turned all public accommodations into mixed-sex spaces, which includes bathrooms, locker rooms, and other private facilities.
As much as supporters of the bill tried to hide it, this law was always about granting men access to women-only spaces. There could have been many alternative solutions to make trans-identified people feel safe and free from discrimination without giving up the safety and comfort of women. Massachusetts considered none of those alternatives.
The protest signs held by activists at the governor’s speech reading “Public Spaces = Our Spaces” were true. With the passage of the public accommodations law, the state now holds the privileges of trans-identified men as more important than the comfort, privacy, dignity, and safety of all the women in Massachusetts. Despite the two supplementary documents accompanying the new law, the category of “gender identity” in Massachusetts is still nebulous, contradictory, and ill-defined. But the Commonwealth has shown time and again, that when “gender identity” and sex come into conflict, “gender identity” will always come out on top.
The Repeal Motion
The passing of the bill did not mark the end of organized opposition to the bill. The State We’re in Part III will explore the 2018 fight at the ballot box to repeal the 2016 public accommodations law.
Part I in our series can be read here: The State We’re In Part I: 1997-2011
This is an archive link. The original Freedom Massachusetts website is no longer being hosted online. For reference, the linked page is an archive of “http://www.freedommassachusetts.org/facts/” from June 29, 2015 using the Wayback Machine.
Good work. Most people in Ma. probably have no clue what was done. This makes clear how female rights were stolen. We have got to hold accountable each legislator who voted in "gender identity". Our boundaries are gone, our safety, dignity and privacy with them.
Thank you for this history--I am remembering the Massachusetts of 1887 with gratitude because of it.