In November, Massachusetts will hold the nation’s first statewide vote on anti-discrimination protections for transgender people.
In July 1998, 24-year-old Lucas Rosa walked into a Massachusetts bank to apply for a car loan. The loan officer refused to give Rosa an application and instructed her to leave and return wearing men’s clothing before she could apply.
Rosa is a transgender woman who later won a lawsuit against Park West Bank in 2000, marking a significant victory in the emerging fight against transgender discrimination. Since Rosa’s case, the state added discrimination protections for transgender people in public spaces, including restaurants, hospitals and bathrooms.
Now, those protections are in jeopardy.
In November, Massachusetts will hold the country’s first statewide referendum on transgender rights. Voters will decide whether to keep an anti-discrimination law that Republican Gov. Charlie Baker signed in 2016 protecting transgender people in public spaces.
“No one should be discriminated against in Massachusetts because of their gender identity,” said Baker after signing the bill two years ago.
When it comes to LGBTQ rights, Massachusetts is hailed as a leader. In 1974, former state Rep. Elaine Noble became the nation’s first openly gay candidate elected to a state legislature. In 2003, the state became the first to legalize same-sex marriage. In 2011, former Gov. Deval Patrick signed the state’s first round of transgender protections, which covered employment, housing, education, and credit and lending.
Despite this history, transgender advocates are worried.
“We cannot be complacent and assume Massachusetts will do the right thing because of its inclusive and progressive reputation,” says Janson Wu, executive director of GLBTQ Legal Advocates and Defenders (GLAD).
In public polls this summer, one from WBUR and another from Suffolk University, 52 percent and 49 percent, respectively, of Massachusetts voters said they opposed repealing the law. But a more recent Suffolk University poll asked voters about the law again, and this time, 73 percent said they would keep it.
Wu says the drastic difference in poll results could be attributed to their language. The first two polls focused on bathroom access, which has become a contentious national issue. The second Suffolk poll used broader language with no mention of bathrooms. While the law applies to any place that is “open to and accepts or solicits the patronage of the general public,” opponents of it focus on bathroom access because it is easier to stir up fear about women’s safety, says Deborah Shields, executive director of the advocacy group MassEquality.
The actual ballot language does not mention bathrooms or transgender people specifically. Instead, it asks whether voters want to keep the current law, “which prohibits discrimination on the basis of gender identity in places of public accommodation.”
For Yvette Ollada and other opponents of Massachusetts’ transgender protections, the issue of bathrooms and public safety is significant.
Ollada is a spokesperson for Keep MA Safe, the group that petitioned to get the measure on the ballot. She says Keep MA Safe formed after House Republicans tried unsuccessfully to amend the 2016 bill to require registered sex offenders to use bathrooms corresponding with their biological gender. Her group makes a common argument: that sex offenders could pretend to be transgender and commit sexual crimes in bathrooms and locker rooms.
It’s an argument that has continually proven to be untrue.
A study published this month from the Williams Institute at UCLA School of Law concludes that anti-discrimination laws like Massachusetts’ are not related to the frequency of sexual offenses in these facilities. The researchers looked at Massachusetts specifically because, prior to 2016, some localities in the state had anti-discrimination policies for public accommodations and others did not, says Amira Hasenbush, one of the study’s authors. They made a public records request for crime data before and after the 2016 law and compared localities with similarities in crime rates and demographics to determine the effect.
“The point of our research … is that it takes out some of the other background noise and only looks at the impact of that law because we’re looking both at a place with the policy and without the policy,” says Hasenbush.
Still, Ollada has concerns.
“This particular law in Massachusetts is written where it’s very, very broad,” she says. “The definition covers anyone who self-identifies. So there’s no requirement to be under any sort of treatment, any sort of hormone treatment, have had any sort of surgery.”
Those procedures — gender reassignment surgery, hormone therapy, breast augmentation, facial reconstruction — can cost up to $100,000 collectively. Transgender people are frequently denied coverage for these operations, and some don’t want to transition medically. Currently 19 states (including Massachusetts) and the District of Columbia have laws that prohibit discrimination in various forms on the basis of gender identity and sexual orientation. None of these laws include a provision addressing sex offenders, according to Amanda Johnston of GLAD. Sexual offenses are already illegal, and anti-discrimination measures don’t change this, she added.
Both sides of the issue agree that the vote in Massachusetts will have national implications because it could lead to similar ballot measures in other states. The vote will also hold significance for the transgender community, says Wu.
“It would just be devastating for the transgender community to have these rights stripped away through a popular vote,” says Wu. “Especially for young transgender people who already have higher rates of depression and suicide because of society’s stigma on who they are.”