Transgender ‘bathroom bill’ a battle of conflicting rights

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None of our rights is absolute. Even our most precious rights have limitations. The First Amendment protections of the free exercise of religion, freedom of speech, and the right to assemble are expansive but hardly unconditional. The proverbial rule against “yelling ‘Fire!’ in a crowded theater” is a common example of why our individual rights must sometimes be circumscribed for the public good. Some restrictions are needed to secure the rights of all, against the abuses of the few.

We are, however, more frequently faced with “rights in conflict,” rather than clear-cut abuses. In balancing competing rights, legislatures sometimes get it wrong.  For example, in 2007, the Massachusetts Legislature passed a so-called “buffer zone” law to limit the free speech rights of pro-life activists in order to ease entrance to abortion facilities. In McCullen vs. Coakley, the United States Supreme Court unanimously held that the Massachusetts law was overly restrictive and violated the free speech rights of peaceful protestors.

Today, the Massachusetts legislature once again has before it a bill involving competing rights. In a nutshell, the question before the legislature is this: Should Massachusetts eliminate protections for persons who expect restrooms, locker rooms, and dressing rooms to remain lawfully sex-segregated?

Those longstanding rights come smack up against the Transgender Public Accommodations bill (House Bill 1577), “an act relative to gender identity and nondiscrimination.” Often referred to as “the bathroom bill,” HB 1577 removes biology and physiology from primary consideration when a person chooses to enter an intimate public place such as a rest room — whether in a school, library, restaurant, government office, department store, or sports arena.

In 2011, the Massachusetts legislature passed the Transgender Equal Rights Act. While expanding protections against discrimination for transgender persons, that bill specifically maintained traditional expectations about who is permitted in the most sensitive public settings — bathrooms and other lawfully segregated facilities.  If this new bill is allowed to become law, those expectations will be wiped away.

Now, we vividly see the rights in conflict. The goal of HB 1577 is to expand protections for transgender persons. But at what point do those broadened protections conflict with the rights and protections guaranteed to others?

If passed, this law would guarantee the ability of transgender persons to choose whichever public restroom they prefer: men’s or women’s. Access to a restroom of one’s personal choice would override the right to privacy and security that the general public has long enjoyed. Up until recently, there has never been a question about whether a public women’s room is exclusively reserved to women. This bill says that men who claim to identify as women will share access to such heretofore restricted public facilities. What matters is the personal claim of “gender identity,” not the person’s objective anatomy.

Even assuming that those who seek unfettered access to the bathroom of their choice will not abuse that right, real and potential challenges, conflicts, and tensions will remain. But what if someone does seek to abuse that right, posing an outright danger to the public?

All of these conflicts are magnified tenfold whenever children are involved. Should underage boys and girls be assured that their right to privacy is protected in public restrooms? Or should the claims of adults trump those children’s rights?

As a member of the House of Representatives, I believe that the protection of children is paramount. That’s reason enough for me to oppose House Bill 1577. Voting against the bill is the surest way to allay the apprehensions of parents who fear that their children will be subject to awkward or even traumatic situations. Always lurking in the background is the possibility of abuse of access, an abuse which we can all unite in forcefully and unequivocally condemning.

Not every parent shares these concerns. And not every family agrees as to the best resolution of the conflict. That’s the unending dilemma of rights in conflict. There’s always a need to balance one against another. As a legislator, I am constantly reminded of the ongoing need to get that balance as correct as possible. In this case, I believe the right to privacy and security for all persons, especially for children, outweighs the demand for universal access. I shall be voting to maintain current rights, policies, and protections when I vote “No” on “the bathroom bill.”

Jim Lyons (R-Andover) represents the 18th Essex District in the Massachusetts House of Representatives.