For Massachusetts Voters: A Short Debate On Ballot Question 3

Oct 29, 2018

Massachusetts ballot Question 3, if passed, would keep in place a 2016 state law that protects transgender people from discrimination in restaurants, stores, movie theaters and other public spaces.

The law, passed in 2016, also requires full access in those places to restrooms and locker rooms consistent with a person's gender identity.

A "no" vote would repeal the law, which critics call the Bathroom Bill.

Advocates say the law protects people from discrimination. Opponents say the current law creates a safety issue.

Joining us for a short debate on this referendum: Matt Wilder, who is with the Yes on 3 campaign, and Andrew Beckwith, legal analyst for the No on 3 campaign, which opposes the measure.

Kari Njiiri, NEPR: Andrew, we'll start with you, since you helped bring this ballot initiative before voters. You have said that the issue is not about discrimination per se, but about privacy and safety. How so?

Andrew Beckwith, No on 3: That's right. Because what this law does is it allows any man at any time to enter a woman's restroom, locker room, change facility, homeless shelter -- if they claim to identify as male. The way the law's written is very broad, next to impossible to enforce.

So we're concerned about the privacy issues that that raises.

On the discrimination level, the Massachusetts Commission Against Discrimination said publicly in 2015, as this law is being debated, that they already have the jurisdiction over public accommodations and gender identity cases. So the only legal difference when this law is repealed will be that now, bathrooms, locker rooms, places like that, will no longer be able to be accessed quite so easily by men of any gender identity, including those who could abuse the law to prey on people.

Matt Wilder?

Matt Wilder, Yes on 3: Well, first of all, I think it's really important for your audience to know that this law is about much more than restrooms and locker rooms. It's about every place that we go every day to live our lives, whether that be the coffee shop, or a restaurant or the movie theater -- anywhere that's not work, school or home. And so that's what's really at stake here, by repealing this law. It takes away those protections for transgender people in all those spaces that we all take for granted. And so that's why it's so important that people vote "yes" on 3.

Specifically to restrooms, I think that Andrew is focusing on something that I think really just hasn't materialized in the two years since this law has been in place.

In fact, there has been no uptick in incidents of criminal activity since this law went into place, and that's proven by the fact that the Massachusetts Chiefs of Police Association, [and] more than 50 sexual assault prevention agencies, all are in support of upholding this law. Something tells me that if this law put women and children at risk, they would not support this law.

Andrew Beckwith: So look, there was a report on Boston 25 that in Woburn -- it was at a Target at Woburn -- there was a man who tried to get into the stall in a women's room where there was a 10-year-old girl. And the mother reported it, and reported it to the police, so we're trying to get the details of that. But that's precisely the type of scenario. How does a biological male enter the women's restroom, and not get stopped, before he's trying to get into the stall of a 10-year-old girl? That's the type of scenario that this law allows to happen, because it tells people -- for example, if I was a dad standing outside that bathroom door, and I see a man walk into the women's room, where my daughter is, if I try and stop that man, or even question them, I'm in violation of this law, and I could face up to $50,000 dollars in fines, or a year in jail. So what this law does is it silences women, in particular, when they object to a male presence in these intimate spaces.

Matt, does this law increase the likelihood that something bad could happen?

Matt Wilder: Absolutely not. In fact, there is a peer-reviewed study out of the University of California law school that says there is no correlation between uptick in criminal activity when these protections are in place. But to the specific case that Andrew just brought up, I think it's really important for people to know: nothing about this law allowed anyone to enter that space. Any criminal activity is still against the law, and people will be arrested and charged, as they should be.

Andrew Beckwith: So when this law was being debated, there was an attempt to amend it, to prohibit registered sex offenders from making use of this law if they identify as female, or claim to identify as female, and the legislature voted that down, which means you can have level 2 and 3 registered sex offenders claiming a female identity, and getting access to women's locker rooms, homeless shelters, and places like that. And if anyone objects, again, it's the objector, the parent, the mom, the dad, who is subject to criminal penalties.

Matt Wilder: That's a bit of a stretch. So there are penalties in the law, for sure, but that's for repeated acts of discrimination over several years --

Andrew Beckwith: It can be a single act.

Matt Wilder: -- over several years. The law is quite clear. No one has been fined under this law in the two years it has taken place, up to $50,000.

Matt, how do you allay the concerns of people who are afraid, or just uncomfortable, that their safety is going to be threatened?

Matt Wilder: Well, first of all, I would say we all care about safety and privacy, particularly in restrooms and locker rooms. I would not advocate for a law that put my niece and nephews at risk, and I don't think anyone who is advocating for this law would do that, either.

What the facts tell us is that there is no correlation between protecting transgender people in public places and an uptick in criminal activity. There are certainly examples of creeps going into spaces that I think Andrew and I would both agree should not be in there, but this law does not allow that to happen.

Andrew Beckwith: It makes it easier for them to do it, because it says if anyone objects, the objector is subject to criminal penalties. And we should take the word of Matt's co-chair, Mason Dunn, who helped file a discrimination complaint against a female spa owner who declined to wax the genitals of a man. The man identified as female, and so they filed this claim. So what their campaign co-chair is trying to do is force female spa workers to wax male genitalia, even though they're uncomfortable with it, or face these fines and penalties. It's outrageous.

Matt Wilder: Again, that's just not true. The person that Andrew is talking about is a transgender woman who sought a manicure/pedicure.

Andrew Beckwith: That's not true.

Matt Wilder: That is actually true, Andrew, if you read the report --

Andrew Beckwith: No. I've read the five-page handwritten complaint where that man talks about --

Matt Wilder: Transgender woman.

Andrew Beckwith: He talks about his penis and how he wants it waxed.

We'll have to end it there. We've almost run out of time here. I did want to finally just ask you, Andrew Beckwith: this is a law that's already on the books, for two years. How do we make sure that folks are not discriminated against if the law is repealed?

Andrew Beckwith: Sure. We leave it up to the Massachusetts Commission Against Discrimination, which again, was clear back in 2015 that they already have jurisdiction for gender identity discrimination claims in public accommodations. So the restaurant, movie theater, those types of places are already covered. The only difference, if this law repealed, is that if a male body goes into a female private space the women have a right to object if it's inappropriate.

And Matt, what are the consequences you see happening if it was repealed?

Matt Wilder: Well, there are real consequences for transgender people all across Massachusetts. I think when this law was passed two years ago by Governor Baker, when he signed it into law, it really was a moment for them, that they felt a burden lifted off their shoulders, like the state finally had their back. This is about dignity and respect. That's what this comes down to. And again, you don't have to believe me. You can look at our supporters. The law enforcement leaders in the state and the sexual assault prevention leaders in the state, are all voting "yes" on 3, and we're urging voters to do the same.

Take a look at NEPR’s Massachusetts General Election Voter Guide 2018.