As the whole US waits anxiously to see what the outcome of the November 6 elections will be for the balance of power in Congress, Massachusetts weighs an additional battle: Question 3, which asks whether the state will uphold a 2016 law providing public accommodations protections for trans citizens. Specifically, the bill the ballot measure is in reference to, Senate Bill 2407, says that access to public accommodations like bathrooms and locker rooms should be determined by a citizen’s self-identified gender rather than the gender assigned to them at birth.
Slightly confusingly, the ballot question doesn’t address any new legislation, but asks if the previously passed legislation should be upheld (a Yes vote) or repealed (a No). This may be part of what’s fueling concern that the ballot question is neither well publicized or well understood. Recent polling as well as historical trends in MA politics suggest that voters largely support Yes on 3 — when surveyed about support of legal protections for trans individuals, the majority MA voters support them — but some wonder whether the confusing setup of the referendum and misinformation surrounding the bill will impact voters at the ballot box. CBS Boston found not-insignificant confusion when they polled voters:
“The poll found 74-percent of likely voters said they are against repealing the law. However, researchers said it seems many voters had trouble understanding the ballot question and what their vote would mean. “Nearly a quarter of respondents gave inconsistent answers on their views when asked about the ballot question and whether transgender individuals should be required to use restrooms corresponding with their birth gender or should be allowed to use those associated with their gender identity,” researcher Joshua Dyck said in a statement.”
Back in September, WBUR also polled voters and found that while most people understood the question and knew how they planned to vote on it, most wasn’t all — 71% of those they polled said they planned to vote yes on 3, but only 85% of those gave the same answer once the ballot question was restated to them “in simpler terms.”
Of course, like bathroom bills elsewhere, Question 3 and Senate Bill 2407 have both been subject to unfounded and fearmongering attacks — like those of the organization Keep MA Safe, which has claimed that the law is too “broad and vague,” and will somehow make restrooms a site rife with sexual assault. Keep MA Safe chairwoman Debby Dugan wrote in the abovelinked Boston Globe op-ed, “The way this law is written, an attempt to block someone who self-identifies as belonging in a women’s locker room, dressing room, or bathroom — including convicted sex offenders — could result in penalties of up to a year in prison.”
The Yes on 3 movement has received vocal support elsewhere — in contradiction with Dugan’s op-ed, the Boston Globe editorial board has endorsed Yes on 3; Governor Charlie Baker has donated to the Yes on 3 campaign out of his own pocket; Laverne Cox spoke at a Yes on 3 rally, saying “Massachusetts has an opportunity to send a message to this administration, has an opportunity to send a message to the rest of the country that this is not who we are as Americans, that this is not who we are as human beings, that we respect the humanity of everyone.”
Although the passing of Question 3 seems likely at this point based on polls, the stakes are high, and no one wants to take the win for granted. “I truly believe that this is one of the most pivotal moments in the trans legal, political movement of this decade… If we lose in Massachusetts and the protections are repealed, it will send a message to lawmakers across the country that trans people are unworthy of legal protection and animate new fights to restrict our access to public space,” Chase Strangio of the ACLU told the Intercept. The first US state to issue same-sex marriage licenses, Massachusetts is considered a progressive vanguard when it comes to LGBT issues, and a loss there would be devastating. Question 3 was put forth by anti-trans organizers betting on the hope that they had more of a foothold in public discourse now than they did two years ago; No on 3 would prove them right.
Aside from the terrifying litmus test in play, the impact of a trans public accommodations bill is about to be very different now than it was when passed in 2016. The Trump administration’s newly reinvigorated assault on trans legal protections — most recently, forcing a limited legal definition of gender based rigidly on sex as assigned at birth and rejecting the term “gender” altogether — mean that these state-level protections will become crucial. Whereas it was previously possible to interpret federal-level Title IX as protecting trans citizens, the Trump administration is bent on specifically arguing that it does not.
Before federal marriage equality was passed, same-sex marriage flickered in and out in an inconsistent, patchy fashion across the nation. You could get married in Massachusetts, but that meant nothing on your road trip through Idaho; if your spouse were hospitalized in Utah, you may well be shut out of the room, legally a perfect stranger. If the Department of Justice accepts the new legal arguments about gender at the end of the year, trans and gender-nonconforming people may be in a similar situation — legally protected in some places, but not most, subject to geographic and legal happenstance. As the Intercept points out, 32 states in the US are without any of these trans-inclusive legal protections. Massachusetts does have generally progressive LGBT legislation; it’s also an extremely expensive place to live, and for a vulnerable trans population subject to a great deal of economic injustice, relocating to safer parts of the country isn’t necessarily feasible.
Bathroom bills are always a cruel referendum on trans people’s humanity and right to basic dignity in public spaces, even when people like Debby Dugan try to reframe them as threats to cis people’s safety. Question 3 in MA has the additional weight of happening in a specifically loaded and dangerous time, when what’s owed to the trans community by local government and by community is more than ever. Until the polls close on November 6, it will be up to advocates to educate and get out the vote for progressive candidates and for Yes on 3.