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Update: From Arizona attorney Abby Jensen:
Latest word is that SB1432 was controlled by another committee whose chair would not give it up for Kavanagh to use for his “papers to pee” striker amendment. So, now, he’s looking for another bill to use. As a result, tracking that bill number won’t help us. Instead, we have to just go to this page & check every striker in the House Appropriations Committee for his bill: http://www.azleg.gov/StrikeEverything.asp.
We’re a long way from Arizona’s Forty-ninth Legislature’s 2009 bill HB 2455, submitted by Arizona Representatives Campbell CL, Heinz, Patterson. That bill proposed housing, employment, and public accommodation antidiscrimination protections based on gender identity.
Arizona State Rep. John Kavanagh (R-8th District) has submitted an amendment to a State Senate bill: SB 1432. The amendment appears to be in response to Phoenix passing an ordinance — Phoenix City Ordinance No. G-5780 — granting housing, employment, and public accommodation antidiscrimination protections based on gender identity. When social conservatives use the term “bathroom bill,” what they object to is trans women using women’s restrooms. The presumption is that trans women, or men posing as trans women, at worst will be predators in women’s bathrooms and locker rooms, and at best make cisgender women “uncomfortable.”
So, what Rep. Kavanagh has proposed is a transgender “Paper’s Please” amendment to a Arizona Senate bill. It would require that people using public restrooms use the one associated with their birth certificate. The net effect would be that all transgender, as well as gender expression nonconforming people, would have to carry their birth certificates with them to prove they were using the restroom associated with the gender marker on their birth certificates.
Here is the relevant amendment text for SB 1432 so that you can read it yourself:
PROPOSED HOUSE OF REPRESENTATIVES AMENDMENTS TO SB 1432
… 13-2904. Disorderly conduct; classification A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person: … 6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument. B. A PERSON COMMITS DISORDERLY CONDUCT IF THE PERSON INTENTIONALLY ENTERS A PUBLIC RESTROOM, BATHROOM, SHOWER, BATH, DRESSING ROOM OR LOCKER ROOM AND A SIGN INDICATES THAT THE ROOM IS FOR THE EXCLUSIVE USE OF PERSONS OF ONE SEX AND THE PERSON IS NOT LEGALLY CLASSIFIED ON THE PERSON’S BIRTH CERTIFICATE AS A MEMBER OF THAT SEX. C. SUBSECTION B OF THIS SECTION DOES NOT APPLY TO A PERSON WHO ENTERS A PUBLIC RESTROOM, BATHROOM, SHOWER, BATH, DRESSING ROOM OR LOCKER ROOM AND WHO IS OF A DIFFERENT SEX THAN THAT INDICATED ON THE SIGN IF THE PERSON IS ANY OF THE FOLLOWING: 1. ENTERING AS PART OF THE PERSON’S JOB RESPONSIBILITIES. 2. ENTERING TO GIVE AID OR ASSISTANCE TO ANOTHER PERSON. 3. A CHILD WHO NEEDS ASSISTANCE. 4. PHYSICALLY DISABLED. D. Disorderly conduct under subsection A, paragraph 6 is a class felony. Disorderly conduct under subsection A, paragraph 1, 2, 3, 4 or 5 OR SUBSECTION B is a class 1 misdemeanor.
… Sec. 2. Emergency This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.”
The relevant statute on on amending birth certificates is A.R.S. 36-337, and it states the following:
A. The state registrar shall amend the birth certificate for a person born in this state when the state registrar receives any of the following:. Except as provided in subsection D of this section, an adoption certificate or a court order for adoption required pursuant to section 36-336. … 3. For a person who has undergone a sex change operation or has a chromosomal count that establishes the sex of the person as different than in the registered birth certificate, both of the following: (a) A written request for an amended birth certificate from the person or, if the person is a child, from the child’s parent or legal guardian. (b) A written statement by a physician that verifies the sex change operation or chromosomal count. 4. A court order ordering an amendment to a birth certificate.
If the language of this amendment becomes law, then using a public restroom that didn’t match the gender marker on one’s birth certificate could land one in jail for up to six months.
Usually, it’s important to counter opponents’ inaccurate “bathroom bill” claims, but not too frequently. Something many trans activists and advocates are aware of is that discussions about public restrooms don’t help legislators and voters remember why they should support nondiscrimination legislation based on gender identity. If one needs to counter opponents’ false “bathroom bill” and “bathroom predator” claims, then one needs to quickly by point out that there are many antidiscrimination laws based on gender identity in place in 14 states, the District of Colombia, as well as in many cities, and one just needs to look at reports from those cities to see what the results having those laws on the books means..
So, legislators and voters should be told that where antidiscrimination laws based on gender idenity in other jurisdiction there hasn’t been any reported increase in public restroom predation. After pointing this out, activists and advocates can return to messaging that highlights the many good reasons that outline why nondiscrimination protections based on gender identity are needed.
But, this amendment put forward by Rep. Kavanagh isn’t legislation where civil rights activists can argue for antidiscrimination protections, but instead is an amendment codifying a fear of and discrimination against trans women — a fear that isn’t supported by any documentation that might indicate trans women, or men pretending to be trans women, are frequent bathroom predators. That’s a horse of a different color, eh? The amendment is the negative in and of itself, and isn’t just an argument against granting antidiscrimination protections based on gender identity.
There is something about the proposed amendment that Rep. Kavanagh didn’t think quite through though: he based his amendment language on the false assumption that all trans people are trans women. The reality is that there are trans men too. The amendment language that Rep. Kavanagh has put forward might keep many trans women out of women’s restrooms, but as a secondary effect of his bill is that he’d put many trans men in women’s restrooms.
So, which would be scarier to social conservatives such as Rep. Kavanagh: trans women in women’s restrooms, or bearded, balding trans men in women’s restrooms? If cisgender women aren’t comfortable with trans women in women’s restrooms, I believe the alternative would cause them to be even more uncomfortable.
Ordinary equality should be just that: ordinary. So, we in LGBT community should continue to argue the merits of antidiscrimination protections based on gender identity, and point out the “bathroom bill” arguments of increased predation by trans women in public restrooms are fear based, and not reality based.
4 Comments
So good to see you back Autumn!
YES! Finally someone articulates the flip side of what the bigots are “hoping” for.
Republicans and the religious right have a problem with vaginas, uteruses and fallopian tubes but they also have issues with the people that have vaginas, uteruses and so on.
For the Republican party vaginas are not the problem, unless they happen to enter one that can come back to haunt them.
The implication may be that if one wants to avoid the hassle of arrest, arraignment, and trial, one could nip the problem in the bud if they carry and present a birth certificate when accusations are made, assuming such documentation operates in their favor. However, for the documentation-inconstent transperson, carrying a birth certificate is not specifically mandated by the law, and is the last thing they will want to do. In the event they are arrested in a restroom, they should immediately exercise their right to remain silent (per the Miranda Decision, Arizona’s contribution to civil rights) and refuse to say both their sex on their birth certificate and the state in which they are born. When at trial and a judge asks to see a copy of their birth certificate, the accused should point out that the burden of proof lies on the prosecution to show that they were not acting consistently with it, and as such it is the proscecution that needs to deliver a copy of it. If the prosecution is dedicated enough, they may be able to search through records to figure out where you were born, and may be able to file a court ordered request for information with your birth state to get a copy of it, but at some point the hassle becomes too much of an annoyance for overworked prosecutors and the case will probably be dropped.
This is not to excuse this heinous law in any way. I am a lifelong resident of the state of AZ, and I am fighting this law with every fiber of my being, but if it passes, I don’t see how I can continue living in my home state. This is nothing less than an existential threat to the AZ transgender community. If it passes, we will all end up either in jail or scattered to the four winds. The tragedy of it is too much for me to bear.
None of the news reports have mentioned that my city council in Flagstaff, Arizona, passed a non-discrimination ordinance *unanimously* Feb 19. that includes gender identity and expression protections in public accommodations (and employment)—one week before Phoenix passed its gender identity ordinance. The proposed state bill would obviously cancel part of our ordinance, too. It took us seven years to get our ordinance passed. The fact that part of our ordinance could be negated before it even takes effect 30 days after passage is extremely frustrating.
At the second read of the Flagstaff ordinance in early March I had not planned to speak, as second readings are usually non-events. However, a bunch of fundamentalists showed up to speak against the ordinance. After one speaker after another brought up the bathroom issue, I decided I had to say something.
I told the Flagstaff City Council that as a bisexual resident of Flagstaff and as a rape survivor I was extremely offended by the false idea that public accommodations protections for gender identity would lead to more sexual assaults. I explained that there is no evidence from other cities, counties and states with similar ordinances that such ordinances increase rates of sexual assault. The very idea that protecting transgender people in public accommodations is somehow a threat to women is wrong and repulsive.
To clarify, the Flagstaff, Arizona civil rights ordinance will take effect April 2, 30 days after the second reading, which occurred on March 5.