Mass. lawmakers speak in support of a pair of bills that would protect transgender rights in public places during an Oct 6. committee meeting. (Kara Bettis)
Yesterday on Beacon Hill, advocates for legislation known as the “bathroom bill” lobbied for the “right” to use public restrooms and locker rooms “consistent with their gender identity.”
When asked how this legislation would impact the right to privacy of biological women forced to share the facilities with a biological man who “identifies” as female, both the Massachusetts Attorney General and the Chairman of the legislative committee conducting the hearing essentially said that those who are concerned about privacy in public restrooms need to just get over it the same way that society has “gotten over” objections to racially integrating bathrooms and public pools.
As a person of color, I strenuously object to equating “gender identity” and race. The false narrative, perpetuated by proponents of this bill, that those with gender dysphoria suffer the same plight as Black Americans during the Jim Crow era is not only offensive but intellectually dishonest.
The disgraces and unspeakable hardships faced by Blacks Americans over the course of our nation’s history are, quite simply, unmatched. No other group of individuals, including those who desire to express themselves as a different sex than the one they were born, has ever been enslaved, sold as property, or considered less than human under the law.
No man who expresses himself as female has ever been forced to drink out of a “transgender water fountain,” and no woman who believes she is a man has ever been forced to sit at the back of the bus in the “transgender section.” Americans suffering from gender dysphoria have never been denied the right to vote or to attend their neighborhood public schools.
The bill that is currently before the Massachusetts legislature is not about the lunch counter or the back of the bus. It’s about bathrooms. And while it is true that there was a time when some bathrooms in this country were labeled “whites only” and others as “colored,” we, as a society, now recognize that there is no legitimate basis for limiting bathroom access based on the color of someone’s skin.
Recognizing that racial differences are almost never relevant, the United States Supreme Court applies its highest level of scrutiny to governmental distinctions on the basis of race.
The Court uses a lower level of scrutiny, however, in determining whether classifying or separating people on the basis of sex runs afoul of constitutional guarantees of equal protection, particularly where privacy concerns are at play. That is because men and women are biologically different in ways that matter. For this reason, although racially segregated bathrooms violate the constitutional guarantee of equal protection, separate public bathrooms for men and women do not.
The effect of the Massachusetts “bathroom bill” would be to erase legitimate gender distinctions and effectively to eliminate any “safe spaces” for members of one sex or the other. Perhaps this is what the proponents of the legislation want, but it is doubtful that this is what the citizens of Massachusetts want.
I woke up this morning — as I have every morning, and will every day for the rest of my life — black. This is not because of how I “feel inside” or how I perceive myself to be. My father didn’t live for forty years as a white man and then, one day, discover that he is actually black. He is black. My mother doesn’t “identify” as black or “express herself” as black. She is black.
We are grateful to live in a society that does not assign moral or functional relevance to the color of our skin, but there is relevance to the fact that my father is a man and my mother is a woman. If either of those relevant biological facts weren’t true, I would not exist.
Attaching the issue of gender dysphoria to the civil rights movement by saying that gender identity is akin to race is intellectually dishonest and dishonors the legacy of the men and women who toiled in the civil rights movement so that their children would one day be judged by the content of their character, not the color of their skin.
I have spoken with many state legislators who are worried about being labeled discriminatory if they vote against this bill. It is imperative that they understand that requiring men and women to use bathrooms consistent with their biology and anatomy does not constitute “discrimination,” as experienced for generations of Black Americans.
Jonathan Alexandre is Legal Counsel to the Massachusetts Family Institute.
Mass. lawmakers speak in support of a pair of bills that would protect transgender rights in public places during an Oct 6. committee meeting. (Kara Bettis) 
