JURIST Guest Columnist Mason Dunn of the Massachusetts Trans Political Coalition discusses a recent victory in Massachusetts for transgender rights and the impact it could have around the country...

This past Election Day, voters in Massachusetts made history by winning a popular vote on transgender rights at the statewide ballot box for the first time. At a time when so many transgender people are being attacked by the Trump administration and violence against transgender people remains an epidemic in America (with the highest rates of violence targeting transgender women of color), this victory sends a resounding message that the transgender community is worthy of being treated with dignity and respect, and should have equal protections codified under the law.

The work to update Massachusetts law to include explicit and comprehensive protections for transgender people from discrimination was more than a decade in the making, beginning in 2007; and included negotiations among a broad coalition of stakeholders involved in crafting the language of the bill. In 2011, the legislature successfully passed transgender nondiscrimination protections in areas of employment, housing, credit, and education. At the last minute, lawmakers carved out protections in places of public accommodation such as restaurants, stores, hotels, government buildings, and doctors’ offices.

In 2015, Freedom for All Massachusetts formed in order to finish our work, and ensure protections in places of public accommodation. We recruited a groundbreaking coalition of supporters and allies, including hundreds of businesses, faith leaders, labor unions representing hundreds of thousands of families, and the state’s major experts working on women’s safety, including the Massachusetts Chiefs of Police Association, the Massachusetts Major City Chiefs, and the Massachusetts Coalition Against Sexual Assault and Domestic Violence. These institutions and experts testified to the well known fact that there was no correlation between protecting transgender people and an increase in public safety incidents. The legislation was signed by Republican Governor Charlie Baker and passed by a bipartisan supermajority of lawmakers in both chambers. Shortly after these protections went into effect, opponents of the law collected the small number of signatures — less than 33,000, or less than one percent of the state population — needed to force it onto the November 2018 ballot. A “yes” vote on question 3 would uphold the current law, while a “no” vote repealed that provision of the public accommodations law.

The No on 3 campaign lacked substantive infrastructure or paid staff, but the messages they attempted to send to the electorate were predicated on misinformation and lies that have no legs to stand on from a legal perspective. While our campaign for Yes on 3 aired informative ads from a diverse array of messengers expressing support for the transgender nondiscrimination law and introducing voters to real people who would be affected by the outcome, the No side’s primary ad featured actors depicting a shadowy and unrealistic hypothetical man spying on a woman in a locker room. In media interviews and debates surrounding the ballot question, the “No” side pointed to a handful of seemingly random instances across the country to demonstrate the supposed harms of the law. However, it was telling that they could not find a single actual person to speak publicly as a surrogate in their ad. That being said, it’s easy to dispel, practically and legally, any notion that ensuring basic protections for transgender people empowers criminals to enjoy increased access to women’s spaces to commit crimes.

The truth is, not a single person in any of the cases that No on 3 put forth ever included a person who committed a crime and claimed to be transgender, or claimed protection because of the transgender nondiscrimination law. In fact, in one of the most notable cases the No side continually brought up regarding a man in Plainville, Massachusetts who had photographed a woman in a restroom, the suspect was arrested and charged – as he should have been. Opponents of transgender equality claimed that the definition of gender identity under Massachusetts law was too broad and opened the door to abuse, but it’s actually the opposite. State law defines being transgender as an identity that is deeply and sincerely held and consistently asserted — it’s not something that someone can wake up one day and pretend in order to do things they shouldn’t.

In addition, guidelines by the attorney general’s office and the Massachusetts Commission Against Discrimination state that gender identity cannot be asserted or abused for any improper purpose. Anyone who is suspected of doing something inappropriate or illegal can be questioned, detained, and reported to law enforcement. Any person who sees something suspicious can say something without penalty — that’s just common sense. Fines can only be issued to businesses — not individuals — who are proven to commit multiple instances of discrimination over many years. That’s why the state’s leading women’s organizations and public safety experts endorsed the Yes on 3 campaign. Criminals don’t follow the law in the first place — that’s why they are criminals. But it’s not a crime to be in a public place and also be transgender. These protections ensure that transgender people can’t face harassment or discrimination simply because of who we are — that’s what this law is about, nothing more or less.

Transgender people value privacy, safety, and modesty like everyone else. In fact, transgender people often seek out unisex or gender-neutral spaces because we have faced such rampant rates of discrimination and negative experiences. But we shouldn’t be required to. There is no reason to think that transgender people cause distress in restrooms any more than any other type of person — and potential discomfort of a small minority of non-transgender people isn’t a legitimate reason for discrimination. From a legal perspective, creating carve-outs for certain groups of people in certain provisions of law — i.e., protecting transgender people from discrimination in all public places with the exception of restrooms and locker rooms — isn’t even sustainable or enforceable. And if No on 3 genuinely cared about preventing sexual violence or keeping criminals out of vulnerable spaces, they should work with the dozens of organizations who do the work every day to protect women and who endorsed Yes on 3, not repeal basic protections for transgender people or hurtfully equate us with criminals.

Yes on 3 ran a campaign highlighting transgender voices, showcasing a groundbreaking coalition of more than 1,500 stakeholders and influencers across the state in support of these protections, and debunking any misunderstanding that these protections could harm safety. From a legal perspective, such claims fall to shreds; but as the Massachusetts electorate has proven, it doesn’t take a lawyer to see that these lies are nonsensical and simply false. Our campaign was about treating all people with dignity and respect, including transgender people. Will discrimination against transgender people in Massachusetts end simply because a law was passed and upheld? Of course not. But the power of these protections, passed by a supermajority of legislators and subsequently upheld by 68% of voters, sends a strong message to the transgender community, here and across the country. I hope that other states take Massachusetts’ lead, until a day where all transgender people can enjoy full legal equality, as well as lived equality, no matter what state they call home.

Mason Dunn is the Campaign Co-Chair of Yes on 3 and the Executive Director of the Massachusetts Transgender Political Coalition.

Suggested citation: Mason Dunn, Historic Win for Massachusetts Transgender Protections Law Creates Pathway for Similar Fights Elsewhere, JURIST – Professional Commentary, November 14, 2018, http://jurist.org/forum/2018/11/mason-dunn-massachusetts-transgender-law.php

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org