Back to Beacon Hill

The transgender community and its allies will return to Beacon Hill July 14 for a hearing before the Judiciary Committee on a bill to add trans-inclusive language to the state's non-discrimination and hate crimes laws. The hearing will mark the second time the committee hears testimony on the bill, known this session as House Bill 1728 (H. 1728); the judiciary held a hearing last session, but the bill died in committee. In the legislature as a whole LGBT advocates have numbers on their side, with a majority of the House and Senate signed on to the bill as co-sponsors, but in order for the legislation to advance it must win a vote in the judiciary, and it is unclear whether it has the votes. Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus and one of the advocates coordinating testimony for the bill's supporters, declined to give a head count of votes on the committee, but she said advocates have their work cut out for them.

"We have a tough road to hoe on this one. It's a very conservative committee, and while we have a very supportive chair on the Senate side there remains a lot of lobbying that still needs to be done of the rest of the committee," said Isaacson, referring to Newton Sen. Cynthia Stone Creem (D), one of the bill's co-sponsors. The Caucus is part of a coalition of organizations led by the Massachusetts Transgender Political Coalition (MTPC) working to pass the bill. Other partners in the coalition include MassEquality, Gay and Lesbian Advocates and Defenders (GLAD), the Massachusetts Lesbian and Gay Bar Association, and the Massachusetts chapters of the American Civil Liberties Union (ACLU), the National Organization for Women (NOW), and the National Association of Social Workers (NASW).

Isaacson said for much of this session lawmakers have been occupied with the economy and the budget, but with the passage of the budget last month she said MTPC and its allies are stepping up their lobbying of committee members. She said for the bill to have an optimal chance at passage this session she believes the committee must give it a positive vote by early fall, although she said it could still pass if the committee votes on it later in the session.

"There's a nice coalition of organizations, and everyone's been doing their thing, lobbying legislators, contacting their constituents, and that will continue going forward. But what will happen in the coming months is what's going to really make the difference in terms of lobbying, because the legislature has not been focused on this issue at all, as we knew they would [not] be. ... Now we're really going to start turbo-charging the lobbying more," said Isaacson.

Gunner Scott, director of MTPC, said a major component of that effort is recruiting members of the transgender community and their families to tell their stories to lawmakers and give them a personal connection to the issue. In the run-up to the hearing Scott is working with members of the trans community to prepare them to testify and share their firsthand experiences of discrimination, but he said for many of them it is difficult to talk publicly about these incidents.

"I've been meeting with individual folks and having them tell me their story and helping them craft it so they can write it or orally testify. There's been a lot of crying and handholding. It's particularly difficult to go back and live through that again ... It's hard to tell your story, particularly if you've suffered discrimination, because it is painful," said Scott.

Matt O'Malley, political director of Mass-Equality, said his organization has been running phone banks to urge voters in districts represented by judiciary committee members to contact their lawmakers and urge them to support the bill. He said MassEquality has also been working to get its members in those districts to lobby their lawmakers in person, although he declined to say how many Mass-Equality members have met with lawmakers or who they have lobbied.

"It comes down to contacts, and the single most effective lobbying tool is having constituents meet with their rep or senator, and that's what we're trying to facilitate and empower our membership to do," said O'Malley. Mass-Equality, MTPC and other organizations in the coalition have also been asking their supporters to e-mail their legislators and to send them postcards calling on them to support the bill.

Scott said one of MTPC's goals is to empower the transgender community to feel confident in demanding their full rights from the legislature.
"We're not asking for special rights, and that's one of our messages. ... I think that's the hardest part, reminding people we deserve this," said Scott.

"Bathroom bill" and other roadblocks

One obstacle to winning the committee's support may be Creem's House counterpart, Rep. Eugene O'Flaherty. As House chair of the committee O'Flaherty's support for the bill is seen as crucial to its passage. Isaacson said when the bill was first introduced O'Flaherty did not support it, but advocates have been reaching out to him to try to win him over. O'Flaherty co-chaired the committee last year, along with Creem's predecessor, former Sen. Robert Creedon, when the bill failed to come up for a vote.

"O'Flaherty is clearly trying to be thoughtful about this bill. He certainly wasn't a supporter originally. He's continuing to ask questions and look at the issue fairly. He certainly knows where Cynthia Creem is," said Isaacson.
O'Flaherty did not respond to multiple requests to comment for this story.
It also remains to be seen how much support the trans rights bill will win from the rank-and-file members of the committee. Only three of the 17 committee members - Creem, Sen. Thomas McGee (D-Lynn), and Rep. Katherine Clark (D-Melrose) - signed on as co-sponsors, despite an aggressive effort by advocates to recruit as many legislative co-sponsors as possible. Meanwhile, four other committee members - Reps. James Fagan (D-Taunton), Colleen Garry (D-Dracut), Lewis Evangelidis (R-Holden) and Daniel Webster (R-Pembroke) - regularly oppose LGBT rights legislation, and they were among the minority that voted unsuccessfully in 2007 to pass a constitutional amendment banning same-sex marriage.
Clark said she is "cautiously optimistic" that the bill will win a majority vote on the committee, but she said many of her fellow members have not yet decided whether or not to support the bill.

"I think it is difficult to get a true read on the committee. It has members who are supporting the bill and members who are opposed and a lot of members who want to hear testimony before they make up their mind," said Clark.
Bay Windows contacted all members of the judiciary to comment for this story, but only Clark and Creem's offices responded.

For many of those on the fence, Clark said, the biggest stumbling block to winning their support has been concerns raised by opponents of the bill about its impact on safety in public restrooms and other facilities. The bill's chief opponent, the conservative Christian advocacy group Massachusetts Family Institute (MFI), has branded H. 1728 "the bathroom bill" in a series of radio ads airing on WBZ radio, claiming that it would put women and children at risk by allowing male sexual predators entry into women's bathroom and locker room facilities. MFI has urged its supporters to email members of the judiciary and to repeat the charge that the bill would threaten bathroom safety.

"I think this issue around transgender people being able to use the public restroom for the gender they are living their lives as is just an issue for some people, and we've certainly received a large volume of emails on that particular aspect of the bill," said Clark. "And I think people want to think about that, think about how some of the definitions work in conjunction with other areas of the law before they make up their mind."

She said the hearing will give advocates of the bill a chance to refute MFI's claims, and she believes many will find their argument persuasive. MTPC and its allies argue that the bill will not make it legal to harass or assault people in public facilities, and they have pointed to the experience in cities and states with similar laws where there has been no notable increase in victimization in bathrooms. Boston, Cambridge and Northampton all have transgender-inclusive non-discrimination ordinances, as do 13 states.
Rep. Carl Sciortino (D-Medford), one of H. 1728's lead sponsors and one of the lead strategists working to advance the bill through the legislature, said he believes MFI is getting less mileage out of the "bathroom bill" rhetoric than it has in the past. He said in conversations with colleagues many have said they find MFI's arguments about bathroom safety "disingenuous."
"That's not to say we don't have a lot of work to do to preserve and build our support, but I think MFI is going to be called out for what they are, which is very misleading in their tactics," said Sciortino, who is gay.

Isaacson said countering the "bathroom bill" rhetoric is one of the coalition's top priorities, and they expect to have representatives from women's groups and the law enforcement community on hand either at the hearing or speaking to the media to dispute MFI's attempt at branding the bill. She said the specific details of that plan are still under discussion. Last year the domestic violence and sexual assault coalition Jane Doe, Inc., and the Massachusetts chapter of the National Organizations for Women (NOW) wrote a joint letter to lawmakers announcing their support for the bill and accusing opponents of resorting to "scare tactics" in making the bathroom argument.
Another question mark going into the hearing is whether House and Senate leadership will make passage of H. 1728 a priority this session. Their support could put pressure on the judiciary to give the bill a favorable vote, and if it succeeds in the judiciary then leadership will determine whether or not it comes up for a vote before either chamber. House Speaker Robert DeLeo (D-Winthrop) has been a vocal supporter of the bill, signing on as a co-sponsor and announcing his support for the bill last February at MassEquality's Valentine's Day Gayla event, but it is unclear whether or not he has communicated with O'Flaherty to urge him to pass the bill. DeLeo's spokesman, Seth Gittell, declined to comment on any conversations DeLeo may have had with O'Flaherty, but he said DeLeo expects the House could take up the bill this fall.

"Until just now the House has been very busy on reform items such as transportation, ethics and pension reform, and he would look to it coming up later in the fall," said Gittell.

Senate President Therese Murray, a strong ally to the LGBT community during the marriage equality battle and on other issues, has not yet taken a position on H. 1728. Her spokesman, David Falcone, sent Bay Windows a statement about the bill reading, "As you know, President Murray supports equity and individual rights. This bill is in the Judicial Committee and will go through the usual committee process. President Murray looks forward to hearing recommendations from the committee chair when the time comes."

Clearing the decks

One factor working in favor of the bill is that the legislature has already dealt with many of the issues expected to dominate this session. At the beginning of the year many expected that the economy and reform proposals around ethics, pensions and transportation would consume much of Beacon Hill's attention. Yet lawmakers have already passed reform bills around the latter three areas, and last month Gov. Deval Patrick signed the budget for the new fiscal year. Lawmakers say that could free up the legislature to focus on other issues, including the transgender rights bill.

"I think we do have a good opening to make the case for this bill to come up for a vote this year. ... I know Speaker DeLeo made clear early in the session that this is a priority of his as a new speaker, and we're working closely with his office to bring the bill up for debate and favorable passage," said Sciortino.

Rep. Liz Malia (D-Jamaica Plain), a co-sponsor of the bill who has been part of the team working to pass it, said she believes the timing is right to begin a more forceful push for the bill.

"The hearing I think will be effective in terms of just getting people organized and focused on it. We've finished some of the most urgent fiscal discussion, and hopefully we'll be able to make progress on a couple of policy issues now," said Malia, who is gay.

Richard Powell, chief of staff for judiciary co-chair Creem, agreed, saying by the fall he expects the legislature will begin taking up a broader range of issues than those that have dominated the first half of this year.

"[The issues around the budget and reform legislation] have been resolved, so I think the legislature has been freed up to a certain extent, and I think we will be looking at more priorities towards the fall," said Powell. "Hopefully this will be one of them."

Ethan Jacobs can be reached at [email protected]