Fourteen years ago, the Dallas City Council updated its nondiscrimination ordinance to include sexual orientation and gender identity without the furor that’s happening in North Carolina.
Council member Lee Kleinman, who watched the debate, said he doesn’t recall discussion about transgender individuals using the restroom of their gender identity and whether the public would be in danger. That issue wasn’t in the public consciousness, he said.
The ordinance, he said, was meant to ensure everyone was treated fairly in a restaurant or store.
“It didn’t seem all that controversial,” he said.
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But in the past two years, the climate changed.
It isn’t until the last year or two years that we saw the tenor of the conversation change so dramatically. We have heard the bathroom rhetoric take off.
Cathryn Oakley, senior legislative council with the Washington-based Human Rights Campaign, a gay rights organization
Here’s what happened: Ordinances such as Dallas’ didn’t mention transgender bathroom use specifically, but they were interpreted to include that right.
But recently, supporters of LGBT rights have been more vocal to include the transgender community in legal protections.
At the same time, opponents have focused on the bathroom issue, saying it poses a threat to the safety of women and girls, and have been successful in thwarting ordinances in Springfield, Mo., Houston and most recently Charlotte.
“Traditionally these bills passed without this hysteria,” said Cathryn Oakley, senior legislative council with the Washington-based Human Rights Campaign, a gay rights organization. “It isn’t until the last year or two years that we saw the tenor of the conversation change so dramatically. We have heard the bathroom rhetoric take off.”
Oakley and other supporters of ordinances say they believe the growing visibility of transgender individuals has fueled the opposition. They also said last year’s legalization of gay marriage nationwide led opponents of LGBT rights to look for new issues to win.
At the same time, gay rights supporters moved on to other areas where they saw discrimination.
When the Houston City Council considered passing a nondiscrimination ordinance for the LGBT community in 2014, it was one of the first such ordinances that specifically mentioned bathrooms.
In previous laws, bathrooms were not mentioned directly. That may have helped dozens of local governments pass their own ordinances without the controversy in Charlotte.
“I don’t think any of those cities would have passed it like Charlotte did,” said former Charlotte City Council member Michael Barnes, who voted against the ordinance last year. “People (in other cities) didn’t know. If it was clear the toilets were in, they’d be out too.”
Minneapolis was the first U.S. city to offer legal protections for gays and lesbians in 1975. A year later, the city extended those protections to transgender residents.
Since then, roughly 100 municipalities have passed legislation to give protections based on sexual identity, according to the Human Rights Campaign.
Atlanta’s nondiscrimination ordinance was passed in 2000. Three years ago, the City Council there amended it to ensure gender identity was included in every part of the city’s nondiscrimination ordinance. An Observer search of news stories from the time – from 2000 and 2013 – found no mention of any organized opposition focused on transgender use of bathrooms.
“There was no controversy whatsoever,” said Jeff Graham, executive director of Georgia Equality.
Columbia and Charleston also offer protections for transgender individuals in places of public accommodations. Columbia Mayor Stephen Benjamin said there wasn’t a debate over bathrooms.
Five months ago, Dallas council members voted to make gender identity its own protected class in the city’s nondiscrimination ordinance. Transgender individuals had previously been considered as part of sexual orientation, but the city wanted to make sure gender identity was highlighted more prominently.
A national firestorm
It’s possible that when many of the ordinances were passed in the past four decades, few considered that bathroom choice for women transitioning to men or vice versa would even be an effect of the ordinance.
But when the Houston City Council began debating its nondiscrimination ordinance in early 2014, that had changed.
The first draft of the Houston ordinance contained specific language about bathrooms.
That touched off a national firestorm, with former presidential candidate Mike Huckabee calling attention to what he believed were the dangers in allowing transgender women to use women’s restrooms.
That bathroom language in the Houston ordinance was removed before the City Council approved it in May 2014.
But for ordinance supporters, the damage couldn’t be reversed. Voters in Houston overwhelmingly overturned the ordinance in a referendum in November 2015.
Tami Fitzgerald of the NC Values Coalition, who led the opposition to Charlotte’s ordinance, said she first heard about the issue of transgender individuals and bathrooms about five years ago.
“I think it’s dangerous precedent to pass laws to give people’s rights based on feelings and not facts,” she said.
Fitzgerald said she doesn’t know of any organized opposition in the U.S. before Houston.
Charlotte under the microscope
In the summer of 2014, Charlotte City Council members LaWana Mayfield and Patsy Kinsey worked with MeckPAC, a local lobbying group for the LGBT rights, about expanding Charlotte’s existing nondiscrimination ordinance to include gays, lesbians, bisexuals and transgender residents.
MeckPAC made a presentation to City Council in November 2014. That was a month after gay marriage was legalized in North Carolina.
At the time, Scott Bishop of MeckPAC said it was important for the bathroom flexibility to be a part of the ordinance.
But in crafting the change, Charlotte would have to do more than simply add LGBT to its list of protected classes. The city’s existing ordinance had language that would act as a roadblock to let transgender individuals use the bathroom of their gender identity.
In 1985, after Charlotte added gender as a protected class, the city was concerned about being able to maintain single-sex bathrooms and locker rooms. The city added language making bathrooms and locker rooms exempt from the ordinance.
In MeckPAC’s proposal to expand the ordinance, the city agreed to delete the bathroom exemption – leading to more scrutiny of the issue.
Earlier that summer, controversy erupted after a transgender student at Central Piedmont Community College was stopped by a security guard and questioned why she was using a women’s restroom.
That issue, and the prospect of a bathroom debate, worried some council members.
When the City Council first voted on the ordinance in March 2015, a majority of council members were uneasy with the bathroom component. The language about the ordinance not applying to bathrooms and locker rooms was restored.
The ordinance failed 6-5. Two council members who voted no – John Autry and Mayfield – said they would not leave the transgender community behind.
Nearly a year later, a council with two new members passed the full ordinance, 7-4.
Four weeks later, Gov. Pat McCrory signed House Bill 2, which overturned the city’s ordinance – and will prevent other cities and towns from extending protections for lesbian, gay, bisexual and transgender people.
During the special session last week, state Rep. Dan Bishop, a Charlotte Republican who sponsored House Bill 2, said he doesn’t think the legislature would have overturned the ordinance had Charlotte simply kept the bathroom provision out. (Bishop, however, had prepared legislation last year that would have voided any local LGBT protections, even after Charlotte had removed the bathroom provision.)
When asked whether she would have opposed the ordinance if it didn’t contain the bathroom provision, Fitzgerald declined to answer.
“I don’t speak to hypotheticals – sorry,” she said. “We are where we are because Charlotte passed a radical ordinance. Charlotte was warned, by the governor and by Dan Bishop, and they did it in anyway.”
Staff researcher Maria David and staff writer Jim Morrill contributed.