Transgenders gained more visibility during the past two years than at any time since Christine Jorgenson’s transition now more than 60 years ago. Time used a May 2014 cover to proclaim “the transgender tipping point,” while HBO debuted the award-winning comedy series “Transparent” last fall. And “call me Caitlyn” Jenner drew a record-setting TV audience in May as she went up close and personal for two hours with ABC’s Diane Sawyer.
Fear-mongering on transgender rights, however, proved to be politically effective last week in dooming a broad equal rights ordinance in Houston, the nation’s fourth most populous city. An omnibus anti-discrimination measure officially entitled the Houston Equal Rights Ordinance (HERO) went down to defeat in a referendum on Tuesday [Nov. 6] at the hands of 61 percent of the voters.
Public opinion polls demonstrate increasing acceptance of transgenders. A poll conducted after the Caitlyn Jenner broadcast by the British-based market research firm found that a majority of those surveyed 53 percent saw being transgender as “morally acceptable.” Still, 31 percent of those surveyed found it unacceptable. A narrow plurality 41 percent to 39 percent said they would be “upset” or “very upset” if their child said he or she was transgender.
Social and political conservatives exploited that discomfort in Houston in defeating what they called “the bathroom ordinance.” In a radio ad, the former Houston Astros star Lance Berkman warned, “No men in women’s bathrooms; no boys in girls’ showers or locker rooms.”
Houston’s openly lesbian mayor Annise Parker aptly accused opponents of mounting a “campaign of fear-mongering and deliberate lies.” She and other supporters emphasized that existing law, unchanged by the ordinance, prohibited entering a restroom of the opposite sex with the intent “to create a disturbance.”
Equal rights advocates from the White House on down decried the result, but transgender rights advocates must do more than view with alarm to realize their goal. Gender identity remains a third rail of civil rights legislation; the tipping point may have been reached, but the path to future acceptance and equality is unlikely to be smooth or uninterrupted.
In an unintended coincidence, the Houston referendum came the day after the federal government adopted for the first time the formal position that discrimination on the basis of gender identity is already illegal as sex discrimination. The U.S. Department of Education’s Office of Civil Rights took that stance in an action against a suburban Chicago school district for restricting a transgender girl’s access to the girls’ locker rooms and athletic facilities.
The school district in the suburban village of Palatine had gone at least part of the way in trying to accommodate the transgender girl identified only as “Student A.” The student, born male but self-identified as female from an early age, was allowed to register under a female name and participate on girls’ athletic teams.
The school district’s initial effort to balance her rights with the privacy rights of other girls meant that she had to change in a single-user restroom, away from her teammates. The arrangement caused the girl to be late getting to class and to miss some important team communications.
Now, the school wants the girl to change in the locker room but behind a privacy curtain. Representing the girl, lawyers for the American Civil Liberties Union, argue she should be allowed to make that decision voluntarily.
In a 14-page letter [Nov. 5], the Education Department said that the school’s policy violated Title IX, the provision that prohibits sex discrimination by schools receiving federal assistance. “Unfortunately, Township High School District 211 is not following the law because the district continues to deny a female student the right to use the girls’ locker room,” Catherine Lhamon, the assistant education secretary for civil rights, explained in a statement.
Mara Kiesling, executive director of the National Center for Transgender Equality, says the Illinois case is the exception, not the rule, among school districts nationwide. Most schools are accommodating transgender students with little difficulty or controversy. But she acknowledged that complaints from parents in the Palatine district have reached the center’s office in Washington.
Daniel Cates, superintendent of the 12,000-student school district, told The New York Times that parents had made it clear they wanted “some measure of privacy expectation” in locker rooms. Cates insisted the school system has not violated Title IX but said he hoped to negotiate a settlement with the Education Department, as the department offered in its letter.]
The defeat in Houston should not have come as a surprise. Twice before, Houston voters had gone to the polls to reject gay rights measures, in 1985 and 2001. Houston itself may be a blue, increasingly diverse jurisdiction, but it is still part of Texas, a determinedly red state despite its rapidly increasing Latino population.
In the aftermath, political observers blamed supporters themselves for the defeat. While outspending opponents, the supporters supposedly failed to develop a politically effective message to answer them. Bob Stein, a political scientist at Rice University in Houston, told the Houston Chronicle that supporters should have warned about the potential economic consequences of rejecting the ordinance. “It doesn't take a rocket scientist to figure out that the economic argument was a salient argument,” Stein said.
Politics and law intertwined in the seesaw, decades-long fight for marriage equality. For transgender rights advocates, the problem in Houston needs to be merely a reminder that the path ahead is uncertain however sure they may be of the goal.