In the campaign video, the little girl wearing ponytails and Mary Janes looks bewildered. There’s a man beside her at the sink in a public restroom. He’s putting on lip gloss.
“A little girl shouldn’t have to wonder why there’s a man using the women’s bathroom,” says the child narrator.
Expect many similar images this year as Massachusetts becomes ground zero in the latest round of the nation’s culture wars. A November ballot question asking voters whether to keep or repeal the state’s 2016 antidiscrimination law is expected to be the first statewide referendum on transgender rights, taking the national temperature on a fiery hot social issue.
If bluer-than-blue Massachusetts votes to repeal transgender rights, said Andrew Beckwith, one of those pushing for repeal, “it will send a real message to the rest of the country that this is just too much. It’s pushed beyond what common sense will allow.”
His ideological opponent is likewise aware of the stakes.
“If they succeed in repealing equal rights in Massachusetts, they can succeed anywhere,” said Phil Sherwood, campaign manager for Freedom for All Massachusetts.
The state law proposed for repeal, enacted in 2016 and signed into law by Governor Charlie Baker, added gender identity to the list of reasons people can’t be discriminated against in public spaces. Although opponents have often focused on public bathrooms, the law covers all public accommodations, including hotels, stores, restaurants, theaters, sports facilities, and hospitals.
Freedom for All Massachusetts — a coalition that includes major unions and employers, the Greater Boston Chamber of Commerce, and the Red Sox — has already raised more than $2 million to defend the law, and aims to frame the debate as a question of Massachusetts voters’ values. In the backdrop is the specter of North Carolina’s devastating experience after a 2016 bill required transgender people to use restrooms of the gender they were assigned at birth. A frenzy of opposition followed, prompting boycotts by sporting events, businesses, concerts, and consumers, costing the state money and the governor’s reelection.
Businesses, Sherwood said, “understand what’s at stake, and they don’t want to do business in a state that discriminates.”
Leading the repeal effort are conservative and religious activists and some of the same groups that tried unsuccessfully for years to prevent or stop same-sex marriage in Massachusetts. Their Keep MA Safe campaign — whose website features the bathroom video — suggests that the rights afforded by the state’s antidiscrimination law are infringing upon others’ privacy and potentially endangering women and children.
“A man can enter a woman’s space at any time, without any proof of any sort of medical or psychological condition, merely based on his internal sense of self if he says he identifies as a woman,” said Beckwith, president of the Massachusetts Family Institute.
Opponents of the law take issue with the way “gender identity” is defined — as someone’s sincerely held gender-related identity, appearance, or behavior, even if it differs from their physiology or assigned sex at birth. That definition goes beyond people who have had sex reassignment surgery, said Beckwith. And it’s not necessarily consistent over time; many people now consider gender to be fluid, meaning it could vary at different points in time.
“How do you police that?” Beckwith said.
For transgender people like Kasey Suffredini, cochair of the Freedom for All Massachusetts campaign, the law offers protection that helps him get through his daily life. “Really basic things that other people do, like go to the bank, go to the grocery store, going out to restaurants with friends,” he said. “These are the places that are at stake. They could refuse to serve us in places like that and our ability to make sure that that doesn’t happen to us would be a lot harder to enforce.”
Just as important to him is the symbolic value of being told that the law is on his side, Suffredini said. Losing that backup, he said, “sends the message that it’s okay to deny us service in these places just because of who we are.”
Still, he’s optimistic.
“Particularly in this moment, I think that people are looking for opportunities to send a different message than the message of division and discrimination that we see coming out of our federal administration,” he said. “There are few other instances in this country this year where voters will have an opportunity to send a tangible counternarrative.”
A second statewide referendum may be on the ballot this fall in Montana. If an ongoing petition drive succeeds, voters there will also weigh in on a ballot question on transgender rights.
That ballot measure would impose a requirement that people use public facilities designated for the gender they were assigned at birth, rather than repealing existing rights, as in Massachusetts.
A city nondiscrimination ordinance was upheld by voters this month in Alaska, making Anchorage the first American jurisdiction to uphold transgender protections on a standalone ballot measure. But voters in Houston rejected a transgender-rights ordinance in 2015, largely based on the same concerns that are being raised in Massachusetts — of dangerous men invading women’s bathrooms.
Massachusetts could provide the nation the first referendum by a whole state, and serve as a bellwether of the nation’s tolerance for transgender rights. And while the first state to grant gay marriage might seem like a predictable proving ground, LGBTQ activists are not entirely confident that Massachusetts will be a “firewall” protecting other states across the country from reversals of transgender rights. Internal polling, they said, shows they are slightly ahead with voters — but that’s before any television ads have been aired.
“This is winnable for the other side,” said Sherwood, the Freedom for All Massachusetts campaign manager. “They have a very successful playbook. Their playbook is really lay low, be quiet, and then the last few weeks, put up ads that really misinform the intent of the original equal protections law and use fear-based messaging.”
To defend the law, transgender activists raised $356,805 last year, according to data reported to the Office of Campaign and Political Finance. That compares to just $13,368 raised by those who want to repeal it. (The campaign did not provide a more recent estimate.)
Still, the repeal campaign is expected to reap national money in the home stretch. So transgender activists are aiming to raise much more — at least $5 million in total.
“There’s no end-zone dance there,” Sherwood said. “The numbers tell us that we need this to win.”