CommunityPam's House Blend

ENDA: The LGBT Community Has Ceded The "Bathroom Bill" Argument Without A Fight

It seems that whenever a civil rights movement has been fought in the United States, the battles have included public restrooms. From the segregated restrooms of the Jim Crow south, to the “unisex bathroom” arguments used in the fight against the Equal Rights Amendment (ERA), to even the repeal legislation for Don’t Ask, Don’t Tell (DADT) — where Elaine Donnelly and her Center For Military Readiness warned about the dangers of lesbian, gay, and bisexual people in bathrooms and showers — the public restroom has been used as an essential feature for pushback against civil rights and ordinary equality.

When it comes to transgender people and the issues of antidiscrimination protections for employment and housing, as well as for the issue of antidiscrimination protections with regards to public accommodation, the lesbian, gay, bisexual, and transgender (LGBT) community has ceded the ground on social conservatives’ and the religious right’s arguments of “men in dresses” using women’s public restrooms — their argument that has been shortened to “bathroom bill.”

We, as a broad community, have apparently given up on battling the “bathroom bill” meme; we in LGBT community ceded the battlespace on public restrooms.

I believe we didn’t lose the “bathroom bill” argument; I believe we’ve never fought the against the “bathroom bill” meme like it needs to be fought against.

The key points to battling the “bathroom bill” argument by social conservatives/those on the religious right are this:

• The “bathroom bill” argument is an argument that assumes transgender women are really men, and that men are predators in women’s restrooms.

*fill in the blank social conservative/religious right organization/elected “enemy” politician* has not presented even one case of a transgender woman — someone [he/she/they] identify as a “man in a dress” — in a public restroom room engaging in predatory behavior.

• For the *fill in the blank* “bathroom bill” argument to be anything but fear mongering, *fill in the blank* needs to show a.) bathroom predation by transgender women is occurring frequently in public bathrooms, and b.) if point “a.)” were actually true, then   *fill in the blank* would additionally need to prove that alleged bathroom predation occurs more frequently in states and localities that have antidiscrimination laws for transgender people than in states and localities without antidiscrimination laws for transgender people.

And then it needs to be followed up with some pithy summarizing statement, in the vein of:

When it comes to this “bathroom” bill” argument, *fill in the blank* doesn’t need to “show us the money,” but instead [he/she/they] do need to “show us the bathroom predation” that they allege occurs.

And, you can’t send that message by a press release — to work it would need direct action.

An example of what kind of a direct action would be the one used by transgender people who attended Seattle’s transgender conference Gender Odyssey in a 2007 protest against the Pacific Place Mall (also documented in the Seattle TimesMall-Restroom Evictions Raise Transgender Ire):

Essentially, two female-to-male, transgender men were humiliated in a mall restroom one day, and then on the next day the Gender Odyssey attendees held sit-ins in the mall’s restrooms to change the mall policy. In the end, the strategy worked.

[Below the fold: more on the Gender Odyssey Model strategy.]So I’d call this bathroom antidiscrimination model the “Gender Odyssey Model.” In my add to that basic model, there’d be a sit-in spokesperson would rattle off talking points and one-line summary regarding transgender people’s use of public restrooms.

Which restrooms that group of activists target would be really important. My choice of targets these sit-ins — in this order —  would be:

• LGBT civil rights non-profits who aren’t making the argument for public accommodations for transgender people. We need our friends to be our friends.

• The headquarters’ restrooms of the social conservative/religious right organizations’ that are making “bathroom bill” arguments.

• Elected politicians’ office bathrooms — such as Senators’, Congressmembers’, and State Legislators’ office bathrooms.

The “ask” for LGBT civil rights non-profits would have to be modified from the demands made of social conservative/religious right organizations, but the principle of challenging “bathroom bill” arguments would be in the same vein. So the “ask,” after rattling off anti-“bathroom bill” talking points, would be a demand-infused message delivered from an organization’s or elected politician’s office bathroom. The summary message would be something to the effect of:

For Social conservative/religious right organizations and “enemy” elected politicians, a third person summary: “…they need to ‘show us the bathroom predation’ that that they allege occurs, or they’re going to need to have us dragged away to jail.”

For LGBT civil rights non-profits and “friendly” elected politicians, a first person summary: “Transgender people and allies do not accept that we can’t fight the ‘bathroom bill’ meme, and we fully expect you to participate in putting up a fight against it. And too, we’re not going to let you use your office bathrooms until you agree to put up a fight — with full resolve — against the “bathroom bill” meme, and put up a fight for antidiscrimination laws, public accommodation laws, and equality laws for transgender people. Your only other option here is to have us dragged away to jail.”

These sit-ins — preferably accomplished by both transgender people and their LGBT community allies — would be by necessity direct actions that could (and often would) end in arrest of the participants.

There is a big problem with this model though: Very few in the LGBT community today take their own freedom, equality, and justice as seriously as suffragists, black civil rights movement activists, and feminist activists did. We in LGBT community, as a group, seem unwilling to sacrifice for our own civil rights anymore; as a community, we’ve apparently lost the burning desire for civil rights of Martin Luther King Jr.:

You may well ask: “Why direct action? Why sit ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.


Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.

As well as the exhortation on direct action by Cesar Chavez:

“…there has to be someone who is willing to do it, who is willing to take whatever risks are required. I don’t think it can be done with money alone. The person has to be dedicated to the task. There has to be some other motivation.”

We, even within the transgender subcommunity of the LGBT community, haven’t been “willing to take whatever risks are required.” It really all boils down to what suffragist Alice Paul said about equality issues:

I never doubted that equal rights was the right direction. Most reforms, most problems are complicated. But to me there is nothing complicated about ordinary equality.

That’s what transgender people in the LGBT community are fighting for: ordinary equality. We in LGBT community need to commit to ordinary equality to a level we haven’t done in awhile. The “bathroom bill” meme is working against ordinary equality — not only against the ordinary equality of transgender people, but against the ordinary equality of lesbian, gay, and bisexual people as well — and as I said previously it’s working because we in LGBT community have ceded the battlespace.

Transgender community members — as well as broader LGBT community’s members — have a moderate, equal rights agenda. What we apparently need to combat the forces that oppose us as we fight for our moderate equal rights agenda are people committed to radical strategies and tactics. If we don’t again embrace radical strategies and tactics as civil rights activists have in the past, I believe we tacitly accept the inequities many of we LGBT community members endure.

We in LGBT community need to stop thinking in tiny boxes, and stop ceding battlespace — and I’m unequivocally stating that one example before us of ceded battlespace is transgender people’s public restroom use…we have ceded to the “bathroom bill” meme.

Strategically and tactically, we need to start thinking in terms of something akin to the Gender Odyssey Model for combating the “bathroom bill” meme. If we don’t, we’ll have the next generations of LGB and T people to answer to for our failures to secure fully inclusive, ordinary equality.



* ENDA: An 800-Pound Transgender Elephant – With Issues – In The Room

* Guest column by Kerry Eleveld – The False Choice: ENDA v. Marriage Equality


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