11/8 Daily What: The misleading No/Yes of Massachusetts Ballot Question 3

Massachusetts endorsed same-sex marriage before Barack Obama did. In 2004, when I was a senior in high school, it because the first state to recognize the rights of gay and lesbian couples to marry. In this I am and always have been proud. I took comfort when, in the troubling year of 2016, Massachusetts also passed an anti-discrimination law supporting the rights of transgender people to use the restroom that best matches their current gender identity, rather than being forced to conform with the gender they were assigned at birth. Encouragingly, gender-neutral restrooms have gone from visibly common to, frankly, barely worth noting in many establishments in the Boston area. It’s not yet sufficient, nor is Massachusetts always a model of forward thinking in all things, but it’s getting there.

All of this prepared me poorly to see a ballot question this year that sought to repeal the transgender protections established by the 2016 law, proclaiming a familiar line of concern about women and girls being preyed upon in restrooms. My first thought was, are we really rehashing the discussion that North Carolina had two years ago? In Massachusetts of all places? Question 3 made it onto the ballot this year thanks to a signature petition effort advanced by a group called Keep MA Safe (I have a real problem with some people’s use of that word, safe). Even the advocates, however, readily admit that the problem they’re trying to solve doesn’t have anything to do with transgender people an overwhelming majority of the time: the problem is cisgender men. Kaeley Triller Haver, another advocate of the ballot initiative, had this to say: “Let me be clear: I am not saying that transgender people are predators. Not by a long shot. What I am saying is that there are countless deviant men in this world who will pretend to be transgender as a means of gaining access to the people they want to exploit, namely women and children” (emphasis mine). She is correct: this is about men, not about transgender people. In a June 2018 article titled “The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science” (Barnett, Nesbit and Sorrentino, Journal of the American Academy of Psychiatry and the Law), authors have charted the actual occurrences of violence committed against women in children in women’s restrooms and locker rooms. Of the 20 total nationwide incidents since 2003, only one actually involved a transgender person. The rest? Cis men, either posing as women or, in the case of one asshole in Washington state, “did not identify as female, but stated new state law allowed him to be there.”

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Do women have reason to fear men who want to harm them using any means necessary to gain access to them? They do! Louis C.K. was right about one thing: “We’re the number one threat! To women! Globally and historically, we’re the number one cause of injury and mayhem to women. We’re the worst thing that ever happens to them!” I hate that the ringing truth of that bit has now been forever marred by the fact that C.K. himself turned out to be an asshole who has repeatedly used power and plausible deniability to harm women. It makes him a hypocrite, but it doesn’t make the above statement less correct.

I cannot, however, believe that the arguments blaming anti-discrimination laws for men’s shitty behavior are being made in good faith. The hypocrisy of limiting protections for a group of people (a group that needs protection perhaps more than any other adult population) because of the criminal actions of cis men is not subtle. Note that many of these crimes were committed well before questions of transgender bathroom access were being legislated; the notion that the laws are responsible for the problem is not debatable; it’s wrong. And furthermore, think for a moment about the way Question 3 was phrased in Massachusetts: “Do you approve of a law summarized below, which was approved [edit: overwhelmingly] by the House of Representatives and the Senate on July 7, 2016?” (emphasis mine). The ballot then provided a summary of the law’s provisions and stated that “A YES VOTE would keep in place the current law, which prohibits discrimination on the basis of gender identity in places of public accommodation. A NO VOTE would repeal this provision of the public accommodation law”. In other words, in order to take action to repeal the law, to do something, people had to vote “no”, whereas to do nothing, i.e. maintain the status quo, people had to vote “yes.” The two other ballot initiatives in Massachusetts, along with most ballot initiatives, are worded in the opposite way, i.e. asking voters to vote to change something (yes) or do nothing (no). As WBUR put it, this potential for confusion is, of course, consequential: “it’s how voters mark their ballots that ultimately counts. If they meant to support the law but voted 'no' because they thought that would be a vote against repeal, it still counts as a 'no' vote.”

I will confess that I personally spent a couple of nights after voting early worrying about whether I had in fact cast the correct vote. I knew, of course, that I did not want to repeal existing anti-discrimination protections in place, but the unusual wording of the question had thrown me for a loop. I knew I had voted “yes” - was “yes” the correct vote? It had seemed like it at the time, but it seemed so weird in my head. I had brought a limping toddler in a princess costume with me to the ballot box (she was one day out from having gotten seven stitches in her toe) and she was tired and hungry and whining as I filled in my circles, “My turn, Mommy, now it’s MY turn!” Was it possible that I’d screwed it up in my relative inattention? After a couple of days of hand-wringing, I got over myself and looked up the question’s wording online, and to my relief, I saw that my “yes” vote had, indeed, been a vote in favor of no action. Maybe I am just a person who is always a little worried that I didn’t lock the door before leaving the house, but I had done my research on all three questions before going to vote, and I was still thrown in the moment of actually casting a vote at City Hall.

In Massachusetts, at least, this initiative…I was going to say did not pass, but that doesn’t really work, does it, since we voted “yes”? 2/3 of the state voted “yes,” which means nothing happens to the law. WBUR issued a statewide poll “restating the aim of Question 3 in simpler terms,” and they concluded that, while it was admittedly confusing, “most voters seem to grasp the meaning of a 'yes' vote versus a 'no' vote.” I’m still mad about it. I’m mad about the wording and I’m mad about the message. The responsibility for sexual assault in bathrooms is misplaced - actually, while we’re at it, the responsibility for most sexual assault is misplaced. As a Chelmsford voter quoted by WBUR put it, “‘What you're doing [is] you're putting every woman and every girl at risk in their own bathroom because some clown says, 'I'm going to game the system”.’” How sadly familiar: “some clown” - how could we possibly make it the clown’s problem? We have seen quite clearly in recent months how unwilling some people are to blame men for their actions, how much more comfortable it feels to simply enable. I fear that we will see more ballot initiatives like this one, perhaps using different types of subterfuge in different contexts. I think we will see “safety” invoked frequently as a smokescreen for active and willful discrimination. I hope that Massachusetts isn’t the only state that will defeat it.