When same-sex marriage was legalised nationwide by the US Supreme Court in 2015, American equal rights proponents regrouped for a state-by-state attempt to tackle remaining areas of LGBTQI discrimination in the workplace and in access to services. They're failing.
Debate has devolved from arguing for the protection of workers and customers to protecting people in public bathrooms. It's an argument employed by those who champion religious freedom over equality for a single reason: it works.
In November last year, arguably the most notable example of using public toilets to stonewall equal rights occurred in Houston, Texas. Voters decided to rollback a city council ordinance which protected residents from discrimination based on sexual orientation, gender identity, and 13 other factors - this despite having a lesbian mayor since 2010.
Opponents of LGBTQI protections focused their attacks on the outlawing of discrimination based on gender identity, implying it would lead to sexual predators occupying women’s bathrooms. (Buzzfeed's Dominic Holden has a good analysis here of how equality groups failed to counter arguments framing it as a “bathroom ordinance”.)
Following the 61%-39% loss in Houston, elements of the queer community directed their anger and disbelief internally. The defeat had followed several years of consecutive legal victories, and the conclusion from the unfathomable loss was that a fear campaign with the trans community at its centre was the cause. Fears about men in women's bathrooms were preventing same sex-attracted people from accessing the equal rights and protections of their fellow citizens.
Fears about men in women's bathrooms were preventing same-sex attracted people from accessing the equal rights and protections of their fellow citizens.
The week after the soul-searching in Houston, a petition appeared online asking the most prominent US LGBTQI advocacy groups to drop transgender people from the queer acronym. It read:
"We are a group of gay/bisexual men and women who have come to the conclusion that the transgender community needs to be disassociated from the larger LGB community; in essence, we ask that organizations [sic] such as the Human Rights Campaign, GLAAD, Lambda Legal and media outlets such as The Advocate, Out, Huff Post Gay Voices, etc., stop representing the transgender community as we feel their ideology is not only completely different from that promoted by the LGB community (LGB is about sexual orientation, trans is about gender identity), but is ultimately regressive and actually hostile to the goals of women and gay men."
The successful campaign against state-based equal rights protections had worked two-fold: it stopped the rights ordinance from going ahead and it had turned the queer community against itself. The heads of equality groups may not have been prepared for the campaign in Houston, but they saw the danger in this argument immediately. GLAAD president Sarah Kate Ellis responded with a strongly worded statement:
"GLAAD stands firmly with the transgender community and unequivocally rejects the outrageous and destructive idea that the ‘T’ be removed from LGBT. For decades, transgender people have worked alongside lesbian, gay, and bisexual people to advance equality for everyone, often leading the way in the movement for full equality and acceptance. Many trans people are also lesbian, gay, and bisexual — they are an inextricable and invaluable part of the LGB community. At a time when anti-LGBT activists continue to attack the basic rights and protections essential to all of our lives, we must stand together, rather than succumb to the ruin of divisiveness."
The debate over public bathrooms has now been used in a number of US states to successfully prosecute the argument against equal rights for LGBTQI people. It's become a Trojan horse for pushing so-called "religious freedom" bills.
The debate over public bathrooms has now been used in a number of US states to successfully prosecute the argument against equal rights for LGBTQI people; it's become a Trojan horse for pushing so-called "religious freedom" bills.
In the state of Georgia this month, politicians passed a bill allowing business owners to discriminate against LGBTQI people if it was in keeping with their faith. The legislation was this week vetoed by Georgia's governor only after large corporations threatened to boycott the state.
Citizens of North Carolina weren't so lucky last week when their governor signed into a law a bill that overrides all local ordinances that ban discrimination against LGBTQI people in regards to wages, employment and public accommodation. The bill will also force trans people to use bathrooms according to the gender on their birth certificates. Again, opponents of equal rights ordinances in that state argued that predatory men would disguise themselves to sexually assault women.
In Australia, we saw the portent of 'bathroom intruders' deployed in the recent debate over the Safe Schools anti-bullying program.
"Women and girls should feel safe in their toilets and change rooms from male-to-female transgender people who have not undergone a sex change," the Australian Christian Lobby's Lyle Shelton wrote in February this year.
Rather than being used to defeat state-based rights or protections, the bathroom debate here is being used to re-frame the debate over same-sex marriage as we edge closer to a possible plebiscite on the issue.
"Since marriage was redefined in countries like Ireland and Canada, programs like Safe Schools had become mandatory," warned an ACL press release in February.
As queer people have become more visible, fear-based campaigns have become less effective and local marriage equality opponents have been forced to find new arguments to stifle reform - they've turned to their US counterparts for advice.
The question remains as to whether the argument over gender and public bathrooms will be as devastatingly effective in scuttling equality here as it has in the US.