Transgender Rights Advocates Did Admirable Job of Exploiting the Inevitable

I don't know if the many advocates for the new transgender rights law in Massachusetts consciously follow the political maxim, "Exploit the inevitable," but that is what they have done.

On Nov. 16, 2011, both houses of the legislature voted to enact House Bill 3810, An Act Relative to Gender Identity, and the governor signed it into law a week later before heading off to Atlanta to celebrate Thanksgiving with relatives. Yesterday, the governor, legislative leaders, transgender advocates and supporters held a ceremonial bill signing event for HB 3810 in the Senate Reading Room in order to properly celebrate this historic law, which had been before the legislature in one form or another for six long years.

"I signed this bill as a matter of conscience," Gov. Patrick said yesterday. "No individual should face discrimination because of who they are."

Speaking on the floor of the House the night the bill was first voted on, Rep. Carl Sciortino, D-Somerville, a primary sponsor of the measure, said, "...this bill is going to make an immediate difference in the lives of the state's transgender residents, who desperately need anti-discrimination protections in housing and employment. I have been so moved by the courage of constituents who've shared their stories with lawmakers and shown the critical need for these civil rights protections."

The day the bill was enacted, the Massachusetts Transgender Political Coalition issued a press release stating it was "proud to announce" that it would become law.

The bill adds the words "gender identity" to the state's non-discrimination laws for the purpose of preventing discrimination against transgender residents seeking housing, employment, credit or post-secondary education. It also expands the state's hate crimes statutes to include violence perpetrated against transgendered men and women.

An Act Relative to Gender Identity is indeed a good and necessary addition to the laws of the Commonwealth. Through hours of deeply moving testimony from transgendered men and women who had lost jobs, been kicked out of apartments, or attacked physically simply because they are different, and through a sustained, all-out lobbying push from a coalition of civil rights and progressive groups, the case was made that Massachusetts had to do something now to protect this distinct minority group. (The transgender population of this state is said to number about 33,000.)

Nevertheless, An Act Relative to Gender Identity is significantly different from earlier versions of the bill that transgender rights advocates unsuccessfully championed. For example, the bills that didn't make it would have extended new protections to persons based on both their gender identity and their "gender expression." They also would have included public accommodations among the categories where transgendered persons could avail themselves of specific legal rights and protections. The legislature rejected both because it felt that, one, the term gender expression was too wide and ambiguous, and, two, traditional standards of privacy and gender separation should prevail in public bathrooms, locker rooms, showers, etc. Many opponents of the bill argued that someone who had not completed the physical transformation to the opposite gender, a man who was just "feeling like" a woman, for instance, could theoretically abuse the law by claiming the right to enter a women's locker room.

Two legislative sessions ago (2006-08), the first transgender rights bill was introduced containing the gender expression and public accommodations provisions. It ran into a lot of opposition and never got out of the Judiciary Committee.

Next session (2009-10), another transgender rights bill with these same provisions was filed. It, too, died in Judiciary.

Hoping the third time would be the charm, advocates again filed a bill with these provisions for the current (2011-12) session.

Obviously, though, they found that gender expression and public accommodations remained unmovable obstacles to passage. And, rather than suffer a third consecutive defeat, they decided to embrace a modified bill crafted under the prudent leadership of the House and Senate chairs of Judiciary, Chelsea's Eugene O'Flaherty and Brookline's Cynthia Creem, respectively. The modest, middle-of-the-road, O'Flaherty-Creem approach thus became the inevitability exploited by the transgender rights coalition when it trumpeted the bill in November (and again this week) as a victory, while softly conceding it is not what they had struggled long and hard to achieve.

And no one admitted that, if they had wanted to, they could have had this bill on the books three or four years ago.

Gunner Scott, executive director of the Massachusetts Transgender Political Caucus, had the final quotation in the press release issued by governor's office on Nov. 23, the day Patrick signed the bill, and it was a good one. Said Scott, "This law will make a significant difference in the lives of transgender youth and adults across the state who need jobs, a safe place to live and a quality education." Around that same time, one of the most passionate and articulate members of the transgender rights coalition, Atty. Jennifer Levi, was describing An Act Relative to Gender Identity as a "first step," and promising to push for a new and improved version of the bill in the next (2013-14) session. "We support this bill," said Levi, director of Gay & Lesbian Advocates and Defenders (GLAD). "We want complete protections for transgender people -- including in public accommodations -- but also know that in order to get there, we cannot walk away from the legislature's first step toward achieving those full protections."

We'll have to wait a while to see if the legislature, after six years of wrangling with one transgender bill, has the appetite to take on An Act Relative to Gender Identity, Part Two.