Transgender Law Debate: What the Country can Learn From Massachusetts

A new federal directive on transgender public school students' access to facilities is making waves across the nation -- guidance from the Obama administration to school districts on allowing transgender students to use bathrooms and other facilities that correspond with their sexual identification, rather than their assigned gender.

In the days since its implementation, it's sparked impassioned and politically charged rhetoric.

Texas, Oklahoma and West Virginia sent a letter to the White House challenging the Obama administration's directive. Days before, North Carolina launched a lawsuit against the federal government over the issue. As of Friday, Republican legislators in Oklahoma are mulling a measure to impeach the president because of the directive.

In Massachusetts, the federal directive has caused barely a ripple. Why? Because the Bay State has more or less gotten this particular debate out of its system.

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Massachusetts issued its own directive in 2013 that defends public school students' ability to choose a bathroom or locker room that matches the gender they identify with, among other protections -- in line with the Obama administration's call. Three years later, the Bay State debate has moved beyond schools, now asking whether legislators will extend similar protections to all public accommodations.

However, passing Massachusetts' public school policy for transgender students didn't go over easily at the time.

As other states now grapple with debate over school bathrooms, here's a look back at what Massachusetts went through in 2013.

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Massachusetts' directive quietly went public on Friday, Feb. 15, 2013.

Opponents derisively called it the "Stealth Bathroom Bill." Supporters hailed it as a non-discrimination landmark.

The state's Department of Elementary and Secondary Education issued guidance to schools on the treatment of transgender students, from the proper use of names and pronouns to permitting bathroom access and scholastic sports participation based on the gender with which students identify. From the agency's perspective, the 11-page directive represented the practical application of a state law passed in 2012 that, among other things, barred discrimination against transgender students in public schools.

It was first reported in the state's paper of record one day later, with a straightforward wire service article in the Saturday metro section. In the Sunday edition, Boston Globe reporters delved more deeply into a policy decision that took many by surprise.

Opponents were apoplectic.

Within weeks, conservative pundit Bill O'Reilly was skewering the policy on Fox News. State groups who opposed the measure made a media push.

“The School Commissioner’s first duty is to protect all students, from kindergarten to grade 12, not endanger them,” Kris Mineau, then-president of Massachusetts Family Institute, said in a statement at the time. “The overriding issue with this new policy is that opening girls’ bathrooms to boys is an invasion of privacy and a threat to all students’ safety.”

Amidst that outcry, Bay State trans rights groups were celebrating.

“Research shows that transgender and gender non-conforming students suffer higher rates of verbal harassment, physical harassment, and physical assault in school. We also know that there is a lot of misunderstanding about transgender students and that some schools may not have the internal expertise to address all issues of concern as they arise,” Gunner Scott, executive director of the Massachusetts Transgender Political Coalition, said in a February 2013 statement.

Scott cheered the bill as "practical guidance" that identified steps "to create a safer and more welcoming environment for transgender youth in our Commonwealth’s schools.”

In the years since, the Massachusetts Family Institute has not recorded any instances of what it calls "transgender bathroom abuse" in K-12 schools, either here in Massachusetts or elsewhere around the country.

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Now fast-forward three years, and those opposing fronts have realigned around a new battlefield.

A new Massachusetts bill currently headed toward a vote before the House of Representatives would prohibit discrimination against transgender people in public places, and protects the right to choose a restroom or other public facility that matches their sexual identity, regardless of anatomical sex.

• Read more: Senate Advances Mass. Transgender Protections Bill

Of course, even in what has been a relatively quiet issue locally, groups like the Massachusetts Family Institute see a chance to redeem their loss in 2013. In a letter Thursday, its president called on its members to rally against the bill on Beacon Hill.

"Even though the MA Senate voted in favor of the Bathroom Bill, the real fight has always been in the House. I’ve talked to many pro-family legislators who are committed to opposing this bill, but even they are telling me that most of their colleagues are hearing primarily from transgender activists," current president Andrew Beckwith wrote in an appeal to members.

• Mass. Teachers Unions Throw Weight Behind Transgender Rights Bill

The Massachusetts Transgender Political Coalition and its fellow LGBT advocacy groups see the bill as a tipping point, an opportunity to finally advance protections that were not included in a 2011 gender identity protections law, which took effect in 2012.

Supporters take heart in what they see as positive signs from the governor's office that he'll support the bill.

Gov. Charlie Baker, for his part, has refused to take a definitive stance on the bill prior to the House vote, in line with his usual policy. When pressed in a WGBH radio interview Thursday on which way he's leaning, Baker held fast to his say-nothing policy.

"Why does everybody always want to get ahead of where the process is?" he objected.

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To some extent, it's an issue of red state, blue state.

Baker isn't one for national politics, and as a Republican governor in the heavily Democratic Commonwealth, that means he's stuck in an unenviable position. National opposition to transgender protection laws like Massachusetts' is fierce right now, loudly championed by Baker's party.

• READ MORE: Bad Night for Charlie Baker: Governor Booed Off Stage at LGBT Event

It's a cultural battle, but also deeply political. In addition to concerns for public safety, states are also reacting to a perceived overreach by federal government and distaste for the Obama administration in general.

In the midst of the national firestorm, left-leaning Massachusetts is singularly positioned.

The national uproar currently raging contains echoes of Massachusetts' 2013 debate, as schools grapple with how to interpret the directive in practice.

A May 10 Suffolk University poll suggests 53 percent of Massachusetts supports the transgender accommodations bill, while 15 percent are undecided. Nationally, the issue is far more divided. Support for the bill is at 41 percent nationwide, according to a recent CBS/New York Times poll.

Then again, Massachusetts has been here before.

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>> Photo courtesy Ted Eytan via Flickr/Creative Commons