Senate passes ‘bathroom bill’ that foes say tramples privacy

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BOSTON – The Massachusetts Senate on Thursday overwhelmingly approved a bill to guarantee access to public facilities, including sex-segregated bathrooms and locker rooms based on their self-selected gender identity.

The so-called bathroom bill (S 735) passed by a lopsided 33-4 in the 40 seat chamber, with all four votes cast against it coming from Republicans. A similar measure is pending in the state House of Representatives, where passage is less certain.

“My heart breaks with gratitude. I can’t thank you enough,” Lorelei Erisis, a transgender woman from Ayer, told Senate Democrats during a news briefing that immediately followed the vote.

The vote came nearly five years after enactment of a law aimed at ensuring equal access for transgender individuals in housing and employment. The so-called public accommodations language adopted Thursday by the Senate was dropped from that measure before it reached former Gov. Deval Patrick, a Democrat, for his signature.

Thursday’s vote marked the first time that the public accommodations language cleared either branch of the state Legislature, according to Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus.

Opponents expressed concerns about the privacy rights of women and girls in restrooms and locker rooms as well as safety issues. The measure provides no method to prevent men who claim to identify as women from entering women’s facilities for illicit purposes.

Republican Sens. Bruce Tarr of Gloucester, Ryan Fattman, Vinny deMacedo and Donald Humason voted against the bill.

Tarr and deMacedo offered several amendments during the debate that were all rejected, including one filed by Tarr that would have specified penalties for improperly asserting gender identity to gain access to a sex-segregated like a bathroom. The amendment appeared aimed addressing concerns with the bill that House leaders had in mind when they wrote a section into that branch’s version (H 1577) requiring the attorney general to issue guidance and regulations for instances where people assert “gender identity for an improper purpose.”

Sen. William Brownsberger, the co-chair of the Judiciary Committee, argued against the amendment, calling it an “entirely unnecessary” step that would “create confusion” since current criminal laws, including those prohibiting trespassing, accosting a member of the opposite sex or public indecency, would already cover any transgressions.

Six Democrats supported Tarr’s amendment, including Sens. Anne Gobi, Jennifer Flanagan, Michael Moore, Kathleen O’Connor Ives, Michael Rush and James Timilty. It failed 11-26.

Rush and Timility also joined with four Republicans in support of a Sen. deMacedo amendment that would have removed “multiple capacity gender based locker rooms and showering facilities” from the list of protected places. DeMacedo’s amendment would have addressed some critics’ concerns that the bill could threaten the safety and privacy of women by making it easier for predators to take advantage of the law.

Tarr said he had hoped several of his amendments would have been adopted to strengthen the bill. But the Republican leader said excluding locker rooms and shower facilities from the list of public accommodations to which access would be protected is not essential to winning his support.

“I’m hoping that we’ll find a way as we move forward to structure a bill that accomplishes the goal of preventing discrimination against transgendered people, but also ensures that there’s equal protection under the law for everyone involved in this situation,” Tarr said.

Opponents maintained their focus on action in the House. Andrew Beckwith, the president of the Massachusetts Family Institute, an organization that has been staunchly opposed to the measure told his organization’s supporters Thursday afternoon that blocking the version pending in the lower chamber is the group’s objective.

“As we anticipated, less than an hour ago the Bathroom Bill was passed” in the Senate, Beckwith wrote.”The real battle will be sometime in the near future” in the House, he added. “Rest assured, MFI and our pro-family allies will be there to represent your values and continue to speak the truth on this issue.”

Humason, a Westfield Republican, said he didn’t want to see anyone “harmed in any way” but had to “look at protecting the privacy of constituents I represent.”

“Ultimately, I guess my concern was any time there is no set standard and it’s based simply on self-identification and that self-identification can change from one day to the next that becomes very difficult as a legislator to support and as a government to institute. It’s almost unenforceable, because it’s based simply on how someone feels on that particular day,” Humason said.

The House is expected to take up its own redrafted version of the bill (H 1577) later in this legislative session. Speaker Robert DeLeo, a Winthrop Democrat, supports the measure.

Gov. Charlie Baker, a Republican, has declined to state his position on the bill, frustrating its supporters and forcing lawmakers to take into consideration the potential that he might veto the measure, should it reach his desk. Most recently he has said “people should use the restroom facility they feel comfortable using.”

The Senate bill doesn’t include language favored by House leaders that requires the attorney general to issue guidance and regulations for instances where people assert “gender identity for an improper purpose.”

“Governor Baker believes no one should be discriminated against based on gender identity and appreciates the added clarity that the House’s revisions provide into how the provision would be implemented across the commonwealth,” Tim Buckley, a Baker spokesman, said in a statement.

Written by Colin A. Young