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Arizona May Deny Transgender People Basic Right to Use Public Bathrooms

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Late in the evening of Wednesday, March 27th the Arizona House Appropriations Committee voted, 7 to 4, to move forward to the House a bill restricting the right of transgender people to use public bathrooms appropriate to the gender with which they identify. The original version of this bill, SB 1432, called the “papers please, bathroom bill,” would have made it a crime for a transgender person to use a bathroom other than that for his or her birth gender.

This would mean that, according to a March 28th article in the International Business Times, any citizen using a bathroom designated for the gender not listed on their birth certificate would be facing a class one misdemeanor, with penalties up to six months in jail and a $2,500 fine.

The introduction of SB 1432 provoked a huge public outcry and protests from LGBT and transgender rights activists. According to the New York Daily News, over 200 people protested a public hearing on the bill, many chanting “shame;” only one person testified in favor of the bill. Following stormy hearing, which lasted seven-hours, the Arizona House Appropriations Committee approved a modified version of the bill, now called SB 1045.

This modified version excludes the criminal offense but would shield businesses from civil or criminal liability if they ban people from using rest rooms different from that of their birth gender. SB 1045 would negate any legal protections transgender people have under city statutes and discard legal penalties for businesses that discriminate. LGBT activists say this would place transgender people at severe risk.

Nationwide the situation for transgender people can be horrendous. Employment discrimination against transgender persons is endemic across all sectors of the economy. Trans people are subject to discrimination in housing, police brutality in urban areas, and are very often the victims of violent crimes.

Many transgender people say that it can be extremely dangerous for them to use a bathroom not appropriate for the gender they identify with. The Huffington Post quoted Claire Swinford, a Tucson resident who is transgender, “Search as you might there is not enough evidence that there is any risk in allowing a person with gender identity to use a restroom of their choice.” Swinford says she is at risk of being attacked by a man while using a men’s restroom. “What your bill attempts to do is sacrifice my personal safety for somebody else’s sense of discomfort,” Swinford said.

Patty Medway, a transgender woman, told the Associated Press, “I’ve been using washrooms for 15 years and I don’t want to be discriminated against, and I’m scared to go to a male washroom.” These sentiments have been echoed by many in the transgender community.

SB 1432 and SB 1045 represent a right wing backlash against recent strengthening of a Phoenix anti-discrimination ordinance. Phoenix, the sixth largest city in the US, recently added sexual orientation, gender identity, and disability status to categories protected from discrimination in employment, public accommodations, housing and city contracts. According to a March 19th article in the Tucson, Phoenix has been gaining a reputation for inclusiveness towards its LGBT population.

The HRC, the largest US LGBT rights organization, gave Phoenix 70 out of a possible 100 points in its Municipal Equality Index. Other Arizona cities such as Flagstaff and Tucson have previously adopted similar ordinances. This ordinance was championed by Phoenix LGBT and transgender rights activists and was motivated by the desire to foster an atmosphere of tolerance and to offset the far right wing slant of Arizona politics statewide.

The recent Phoenix anti-discrimination ordinance has been strongly opposed by the Center for Arizona Policy (CAP), a right wing Christian lobbying group which has long campaigned against LGBT anti-discrimination measures, same sex marriage, and women’s reproductive rights. Both SB 1432 and SB 1045 were proposed by Representative John Kavanagh, chairman of the Arizona House Appropriations Committee.

Kavanagh, a right wing Republican, said that anti-discrimination ordinances such as that of Phoenix would subject businesses to criminal charges and expose little children to “naked men in women’s locker rooms and showers.” However there have been no known instances of transgender people using public restrooms being connected to cases of pedophilia. According to the Phoenix New Times blog and the Phoenix Business Journal it appears that Kavanagh’s bills are closely linked to the CAP.

There is some debate on the constitutionality of this bill. The Advocate in a March 28th article quoted Brynn Tannehill, a transgender activist, as saying that even if it passed the legislation it would likely be ruled unconstitutional based on the ruling in Romer vs. Evans where Colorado’s Amendment 2 prohibiting any jurisdiction from enacting LGBT anti-discrimination protections was overturned. In an article on the Huffington Post Tannehill says “It is easy to see how a clear analogy between Amendment 2 and SB1045 can be made ….Given the lack of incidents where gender non-conforming people have caused harm in public spaces and the evident animus of the bill in attempting to single out a group, SB1045 seems to fail both constitutional tests miserably.”

Yet, SB1045 will now go to the full Arizona House for consideration. If it passes, transgender activists say, the legislation could have ramifications for trans people far beyond their ability to use a bathroom. Abbey Jensen, an activist campaigning against this bill, told the Huffington Post, “What it really does is legitimizes harassment of transgender people… [It tells the public] ‘These people have no protection, they don’t deserve protection, so have at it.”

The Executive Director of the National Center for Transgender Equality Mara Keisling said, “The Arizona Appropriations Committee approved an incredibly discriminatory and hateful bill that specifically targets transgender people…SB1045 is an unnecessary bill, disconnected from the reality facing transgender Arizonans….SB1045 brings more shame to Arizona’s legislature for isolating and targeting another marginalized community….. Over half of transgender Arizonans have faced harassment or discrimination in places of public accommodations. And stripping local governments the ability to end this violence against us is a dangerous abuse of the capitol’s authority.”

Tim Peacock, writing in the LGBT blog Peacock Panache, says “the reality is this: by forcing transgender persons to use the bathroom of their birth sex, conservatives will effectively be placing the entire transgender community in danger of physical violence and potentially death – all in an effort to help a few bigots feel less uncomfortable.”

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