To Wax or Not To Wax: 
Question 3 Radio Debate on
Gender Identity Puts Transgender Beauty Spa Case Front and Center

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The Milton beauty parlor bikini wax case featured prominently in a radio debate on Question 3 on Thursday night, as advocates battled over the details and whether the state’s gender identity law could be used to force a female spa worker to provide intimate hair removal services for a biological male who identifies as a woman.

State Representative Paul Tucker (D-Salem), a retired Salem police chief, argued for a Yes vote on Question 3, which would continue a state law that prohibits discrimination on the basis of gender identity in public accommodations like restaurants, stores, beauty parlors, public bathrooms, and locker rooms. Andrew Beckwith, president of the Massachusetts Family Institute, argued for No on Question 3, which would repeal the law.

The debate took place at Endicott College in Beverly. It was hosted by Dan Rea live on WBZ AM 1030.

As reported by New Boston Post last month, in December 2017 a biological male who identifies as a woman filed a complaint with the Massachusetts Attorney General’s office claiming a Milton spa committed discrimination on the basis of gender identity.

According to the complaint, the would-be customer in early December 2017 called the spa and asked for a Brazilian bikini wax, a process that removes pubic hair. When the female spa worker who answered the telephone balked at making an appointment for a bikini wax, the would-be customer suggested a manicure and pedicure appointment instead, so that workers at the spa could become comfortable working on the customer and use that first encounter to consider offering other services to the customer. The spa worker booked the hand-and-foot appointment, but the spa owner later cancelled it, prompting the transgender would-be customer to file the complaint.

In January 2018, a few weeks after filing the complaint, the would-be customer withdrew it. But the complainant could refile it.

Here’s a transcript of the back-and-forth on the bikini wax case during Thursday night’s radio debate on WBZ:

Dan Rea:  Before we break, before we break, I gotta ask you, Paul — he talks about the, uh, the bikini wax case.

Paul Tucker:  I have to address that.

Dan Rea:  I’ve read about that, but I want to give you a chance to respond to that.

Paul Tucker:  So let’s get the facts on that again, Dan. So, a transgender woman, from my understanding, went to a spa. Asked for manicure. Now —

Andrew Beckwith:  No, no, asked for a Brazilian bikini wax.

Paul Tucker:  Now, the men and women have fingernails, and toenails —

Andrew Beckwith:  I’ve got the complaint right here. He asked for a Brazilian, Brazilian bikini wax.

Dan Rea:  O.K., let him finish, and then you can respond.

Paul Tucker:  Thank you, Dan. It’s my understanding that there was a discussion about a manicure, and there was some discussion back and forth. Let’s be clear:  This law gives no work that somebody does not want to do, unless they’re denying it for a discriminatory purpose — if a person is acting within the scope of their occupation. A manicurist gives a manicure. It’s also my understanding, that in this particular case, this woman was humiliated, because that appointment to make a manicure was cancelled. And I think that’s wrong.

Dan Rea:  Ah, Andrew, go right ahead.

Andrew Beckwith:  This is an anatomical male who wanted a Brazilian bikini wax. And because he identifies as a woman, so he is categorized under the law as a transgender woman. Therefore, it is classified as discrimination under this law, because the female spa owner refused to perform this Brazilian bikini wax because he’s a transgender woman, not a biological woman.

Dan Rea:  So where is it in the legal process at this point?

Andrew Beckwith:  Uh, the claim was filed at the Attorney General’s office. It was withdrawn. But it could be refiled at any moment. And the person who helped file it is the co-chair of the Yes on 3 commission, Mason Dunn. So they know that it does this, and they wanted to do this:  To force women to touch men in ways they’re not comfortable with.

Dan Rea:  Well, why, why was it withdrawn?

Andrew Beckwith:  I don’t know why it was withdrawn.

Dan Rea:  Ah, Paul?

Paul Tucker:  Dan, if I may, I know that the opponents of 3 have made, tried to make some hay with the fact that there was a complaint filed. The fact of the matter is, this is America. There’s a process in place, not unlike the process that the opponents who are trying to undo a law that we put in place. They availed themself of the democratic process, as did a complainant here. Complainants either go forward or they don’t, on their own merits. That’s the system.

Andrew Beckwith:  One quick question —

Dan Rea:  Very quickly, because we’ve got to take a break. Very quickly.

Andrew Beckwith:  So Paul, Paul, let me ask you this. If a spa declines service to a woman because they’re a transgender woman, and they give that service to every other woman who comes to their door, is that unlawful discrimination?

Paul Tucker:  This law does not require anyone to do anything outside the scope of their occupation —

Andrew Beckwith:  Won’t answer the question

Paul Tucker:  — and that’s the bottom line.

Andrew Beckwith:  That’s within the scope of their occupation, Paul.

Dan Rea:  O.K., we’re going to take a break, on that point. …

 

Where Are the Bathroom Cases?

Later in the debate, Tucker noted that the No side has not provided to date examples of biological men committing illegal acts in women’s bathrooms and locker rooms and then claiming to be transgender as a defense.

Beckwith had earlier called the state law’s definition of gender identity “vague and overbroad,” arguing that because the law requires only that a transgender identity be “sincerely held” then anyone can claim to be transgender even without using hormone treatment, surgery, or a medical diagnosis.

But Tucker disagreed.

“I would say that the sincerely held belief I think is clear as a bell,” Tucker said. “I would also say, and one of the things that may have been lost over this debate, is a crime before the protections were put in place, it’s a crime today. It’s a crime tomorrow, if somebody asserts gender identity for an improper purpose. And I think part of this is telling – that a lot of the opponents’ argument is, the what-if scenarios:  ‘What if this happens?’ ‘It could happen.’ ‘They may refile.’ I’m waiting for the first case where it says somebody used their gender identity for a less than sincere belief and committed a crime and actually asserted that as a defense. I’ve been looking. I haven’t found it.”

Tucker also objected to the No side’s argument that the gender-identity laws enables sex offenders.

“I think one of the disservices that we’ve seen is when we see the word ‘transgender’ in the same sentence as sex offenders. I think that’s despicable. I think it’s terrible,” Tucker said.

But Beckwith said women and girls who might feel uncomfortable about the presence of anatomical males in female-oriented spaces probably don’t care about the person’s gender identity, but rather want their privacy and safety secured.

Tucker said guidelines for enforcing the gender-identity law issued in September 2016 by Massachusetts Attorney General Maura Healey are clear, and that untoward behavior by biological males in a space set aside for women is still illegal.

The Attorney General’s guidelines give examples of “improper or unlawful conduct” under the gender-identity law, including “loitering in a facility for the purpose of observing other patrons,” “harassment of an employee towards another person,” and “photographing or videotaping other patrons without permission.”

Beckwith countered by noting that Healey in April 2016 said during a public appearance that women who feel uncomfortable about using a public bathroom with a biological male who identifies as a woman should “hold it.”

He also questioned how protected women can feel by the Attorney General’s guidelines, saying they tilt toward people identifying as transgender and against women and girls who may object to the presence of male bodies in spaces meant for females.

The guidelines state, in part:

“Inquiry into a person’s gender identity is generally not necessary. However, if a place of public accommodation has a legitimate concern about whether a person is using the appropriate facility, an employee may attempt to resolve the issue through a private and discrete conversation with that person. A legitimate concern arises where, due to the behavior of the person in question, the place of public accommodation is reasonably worried about potentially improper or unlawful conduct. Under such circumstances, an employee may approach a patron privately, out of the earshot of others, and ask, for example:  ‘Are you using the appropriate facility?’ In most cases, if the person confirms that they are using the facility most consistent with their gender identity, that should be the end of the inquiry (unless there is a reasonable basis to believe that the person is actually engaging in improper or unlawful conduct …)”

Earlier in the debate, Tucker and Beckwith clashed over a claim by the No side that repeatedly questioning a biological male using women’s facilities could lead to a maximum $50,000 fine and up to a year in prison.

Tucker said it’s absurd to suggest that reporting untoward behavior to police would result in fines or other punishment. He also argued that only in rare cases where someone is actually violating civil rights laws over a long period of time might stiff fines be issued. He also noted that the gender-rights statute does not state penalties for violating it.

But Beckwith noted that the 2016 statute includes “gender identity” among protected classes such as race, sex, and religion in the state’s civil rights law, which offers its own penalties for violations, including the $50,000 and year-in-jail maximums. He said that under the law if he objected to a biological male using the same locker room at a YMCA that his daughter is using even just three times, in as small a span as a week, he could trigger a maximum civil penalty provided by state law as if he had told a black person that the locker room was for whites only.

Beckwith also invited listeners to do a search online for Debbie Moccia, a name currently used by a longtime repeat sex offender once known as Paul Charbonneau, who was arrested at Merrimack College in North Andover on Thursday, October 18 on a trespassing charge. Moccia, a biological male who identifies as a woman, is a Level 3 sex offender.

The trespassing charge did not concern a bathroom.

“But because his current alias that he’s using right now, is a female identity, this law says he gets to go into any woman’s bathroom, locker room, shower, changing facility, or homeless shelter in the commonwealth. And I think that’s terrible, because it puts women at risk. And Paul, you not only voted for this law, you voted down an amendment that would have prevented Level 2 and 3 sex offenders from using this law. How do you justify that?”

Tucker said a sex offender’s illegal activities are still illegal under the gender-rights law, and that targeting certain groups for exclusion in the gender-rights law defies logic.

“It’s a great sound bite – great sound bite — when you hear that the legislature refused to include sex offenders in this law. Here’s what I say to this:  This law covers everyone. It makes no sense to carve out somehow that sex offenders or somebody else, old people, young people – this law covers everyone,” Tucker said. “If anyone, for an improper purpose, asserts gender identity, they’re subject to the penalties, they will be penalized, and in the case that Andrew brought up, it sounds like multiple arrests, multiple convictions.”

Early in the debate, Tucker noted that the Massachusetts Chiefs of Police Association and the Massachusetts Major City Chiefs of Police have endorsed the Yes side on Question 3, as has Associated Industries of Massachusetts, which advocates for businesses in the state. He also noted that Governor Charlie Baker and Lieutenant Governor Karyn Polito, both Republicans, have personally donated to the Yes on 3 campaign.

“This is a law that protects people. And it’s unfortunate that, I think, the narrative has been hijacked …” Tucker said, interrupted by applause. “I think it’s unfortunate that the narrative has been hijacked to pigeonhole this into something dealing with specific locker rooms, bathrooms, and nothing more. The fact of the matter is that’s a very, very small piece of much larger protections that are needed that were put in place. … It’s a protection. It’s needed. It says that transgender people matter.”

Late in the hour-long debate, a woman in the audience who said she has a transgender child asked Beckwith if his views on the gender-identity law would change if he learned that one of his children is transgender.

“When this law is repealed, people will continue to use the facilities that make the most sense for them. What will be different is that my two daughters, for example, who are daughters who have female bodies, when they go into a woman’s space, if a male body comes in … they will have the right to object. You know, I’m on this campaign to protect privacy and safety,” Beckwith responded.

Rea pressed Beckwith to answer whether his position on Question 3 would be different in the event one of his children came to him and identified as transgender.

“No, it wouldn’t. If one of my sons or daughters … said to me that they thought they were a daughter or a son, I would, you know, hug them, tell them that I love them, and reassure them that our family believes that every child is made in God’s image — male and female, in his image,” Beckwith said.

Question 3 goes to Massachusetts voters in the general election on Tuesday, November 6.

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