Baker scrambles political calculus on House ‘bathroom bill’

By Evan Lips | May 31, 2016, 18:28 EDT

Massachusetts House Speaker Robert DeLeo talks to reporters about the outlook for passage of a version of the ‘bathroom bill’ that Gov. Charlie Baker would sign. (State House News Service image by Antonio Caban)

BOSTON – Massachusetts Gov. Charlie Baker said Tuesday that he would sign the version of the so-called bathroom bill pending in the state House of Representatives, citing the measure’s directive calling on Attorney General Maura Healey to craft a series of protective regulations. But critics question Healey’s commitment to the task.

The legislation aims to ensure access to public facilities such as restrooms and locker rooms for transgender people based on their self-selected gender identity rather than their anatomy. Advocates refer to it as an anti-discrimination bill, while opponents say the proposal would threaten the privacy rights and safety of millions of Bay State residents.

“We know what the attorney general thinks about this issue – it’s that anybody who opposes wide-open, cross-gender bathroom usage should just ‘hold it,’” said Andrew Beckwith, president of the Massachusetts Family Institute. The conservative group based in Woburn has rallied voters against the proposal. “I think the Legislature is being very irresponsible in deferring to the attorney general on this issue when she clearly has no concern for the privacy and safety of a majority of women and children in the commonwealth.”

Baker had until Tuesday deflected repeated calls to take a stand on the contentious proposal, which in various forms has roiled state governments from California to North Carolina in recent months. Earlier this month, the Obama administration sent out a controversial directive mandating transgender people’s access to restrooms, locker rooms and other sex-segregated facilities based on their choice of gender identity and threatening the loss of federal funds for failing to comply. A dozen states have sued in response, claiming governmental overreach.

In Boston, Beckwith’s reference to Healey’s “hold it” comment refers to an April 26 legislative panel discussion, which occurred on what was dubbed as a “Transgender Day of Visibility” on Beacon Hill. During the conversation, the attorney general spoke about privacy and safety concerns expressed by citizens.

“I have been particularly troubled over the last year from what we’ve seen, over some of the rhetoric that’s seen some people’s attempts to really distract the public by discussing this as a ‘bathroom bill,’” Healey said during her remarks to advocates for the bill. “To them I say if you’ve got that much of a problem, hold it.”

Healey’s staff has yet to map out any enforcement guidelines ahead of the House debate and expected vote, set for Wednesday.

House Speaker Robert DeLeo, emerging from a Democratic Party caucus Tuesday, told the State House News Service that while he’s confident the measure would pass, he’s not certain it would survive a Baker veto.

“I do feel we will have the votes to pass, but whether it’s veto proof I’m not so sure,” DeLeo said, according to the News Service. The Winthrop Democrat acknowledged the measure’s opponents as well: “It’s a very difficult subject, and I’m not trying to criticize those who may be opposed to the idea. I understand.”

Baker, in a prepared statement, appeared to accept the notion that the bill seeks to prevent discrimination rather than seeking to force public schools and other organizations to open sex-segregated facilities to anyone claiming to identify as either a man or woman.

“No one should be discriminated against in Massachusetts because of their gender identity,” Baker said in the statement.

“After hearing from all sides and carefully reviewing the two separate proposals that have been working their way through the Legislature, I believe the House version addresses the concerns that some have with the bill by requiring the attorney general to issue regulations to protect against people abusing the law,” Baker said in the statement. “I would sign the House version in its current form should it reach my desk.”

By getting off the sidelines, the governor has given a free pass to Democrats concerned that voting for the bill may have negative consequences at the ballot box in November. Baker has also potentially complicated the campaigns of fellow Republicans who may have planned to use the issue against Democratic incumbents in the fall election.

The House version of the measure requires Healey “to issue guidance or regulations for referring to the appropriate law enforcement agency or other authority for legal action any person who asserts gender identity for an improper purpose.”

The Senate version, which passed 33-4 on May 12, didn’t include any language pertaining to enforcement. An amendment proposed by State Sen. Bruce Tarr (R-Gloucester) outlining penalties for improper use was rejected 26-11.

Tarr, speaking to lawmakers about his proposed change, argued that while potential violators could be slapped with charges like disorderly conduct, “the law itself does not provide a penalty.”

State Sen. William Brownsberger (D-Milton) called Tarr’s amendment “unnecessary” and claimed it would “create confusion.” Brownsberger also added that there already exists a “panoply of laws to prevent people from engaging in improper behavior such as walking into the ladies room if you’re a man.”

As for Baker’s comments on supporting the House version, Beckwith said the governor’s endorsement is premature.

“The way the House bill would work – if it is passed the way it is currently written – is that you have to pass it before you find out what’s actually in it, and we’ve heard that phrase before,” Beckwith said. He was referring to the infamous comment by U.S. Rep. Nancy Pelosi, the California Democrat who was then the Speaker of the House, regarding a pending vote on President Barack Obama’s signature health overhaul, the Affordable Care Act, also known as Obamacare.

Here in Massachusetts, Beckwith said that passing the House measure would be like “issuing her a blank check” by including the provision to have the attorney general draft protective regulations.

“She could make it worse,” Beckwith said. “I would think that responsible legislators would want to know what these guidelines are before they pass the bill.”

Carly Burton, campaign manager of Freedom Massachusetts, an advocacy group that backs the Senate version of the proposal, voiced concerns over the House bill for different reasons. Burton told State House News that the “improper purpose” language “puts law-abiding members of the transgender community at risk of improper law enforcement even though we know that is not the intention.”

The News Service reported that DeLeo wasn’t sure that the Democrats who lead the Senate would drop their version in favor of the House measure, should it be adopted. A compromise version may fail to pass muster with the governor. State House News reported 32 proposed amendments pending in the House, mostly from Republicans to provide exemptions from coverage.