Baker would sign House version of transgender bill
BOSTON >> On the eve of a House debate over transgender public accommodations rights, Gov. Charlie Baker said Tuesday he would sign the version of the bill crafted by House leaders, giving potential political cover to waffling Democrats who might be nervous about supporting the measure in an election year.
House leaders have scheduled a debate for Wednesday over legislation that would bar discrimination against transgender individuals in public accommodations and allow people to use public facilities that match their gender identity rather than their biological sex.
Speaker Robert DeLeo, after caucusing on Tuesday with House Democrats, said he's confident the bill will pass, but less certain about reaching a veto-proof majority. He said leadership was not whipping votes in support of the bill, which is common on major pieces of legislation, and he expected some Democrats to vote against the bill.
"I do feel we will have the votes to pass, but whether it's veto proof I'm not so sure," DeLeo said. The Senate passed similar legislation earlier this month 33-4.
Baker's declaration, which arrived not long after the Democrat huddle, alleviates some of the pressure for supporters to run up the tally, and could push some Democrats and Republicans who were on the fence to support the measure if they feel less likely to be targeted in November over the vote.
Freedom Massachusetts Campaign Manager Carly Burton said the group was "thrilled" by the governor's support. "His statement underscores that this is not a partisan issue. Governor Baker promised to listen to all sides and has shown that the efforts of transgender people and their allies to share their stories has made a real difference. Tomorrow, lawmakers in the House will vote, and we expect soon all transgender people living and visiting Massachusetts will have full and explicit protections under the law," Burton said in a statement.
Though Baker had previously hinted through public comments that he could be leaning toward signing the bill, his decision first shared with the Boston Globe on Tuesday removes one of the last major elements of uncertainty surrounding the issue.
"No one should be discriminated against in Massachusetts because of their gender identity. 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 a statement. "I would sign the House version in its current form should it reach my desk."
House Judiciary Committee Chairman Rep. John Fernandes spent nearly an hour presenting the House bill to the closed-door caucus, delivering what DeLeo later called "one of the finest presentations" he's ever heard in his years in the Legislature.
"Let's face it. It's a very difficult subject, and I'm not trying to criticize those who may be opposed to the idea. I understand. But I think some people who may have been undecided I think if they listened to what the chair had to say I think may not be undecided by the time they leave. I think he did that good a job," DeLeo said.
Fernandes, of Milford, said the members were "hungry for information" about the history of similar laws in other states. With Minnesota becoming the first state to enact a public accommodations law in 1993, Fernandes said 17 other states and the District of Columbia have already followed suit.
"My point on this to folks I've talked to is we should work on probabilities, not possibilities because we have seen this play out in other states. We're not doing this for the first time anywhere where we really have to assess possibility," Fernandes said.
The prospect of allowing people to use public facilities that match their gender identity rather than their biological sex has raised concerns about privacy and public safety, led by the Massachusetts Family Institute.
MFI Executive Director Andrew Beckwith has said the bill, as written, would make it impossible for law enforcement to protect women and children from men who claim they identify as women simply to gain access to women's bathrooms and locker rooms.
"We have a body of information and what that information is is that this has not been a problem in implementation in other states and that's information that I think people in this building need to know because it's a very emotional issue and so it's one that with information you can make a more rational decision," Fernandes said.
Baker's position should now give the House an upper hand in negotiations with the Senate, assuming the bill passes as proposed.
The House bill would require Attorney General Maura Healey's office 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 did not include that language in its bill, with key senators viewing it as unnecessary, but not objectionable and supporters favoring the language as a potential safeguard against predators who might take advantage of the bill's bathroom and locker room access provisions that are tied to gender identity.
DeLeo said he "always" hopes to avoid going to conference with the Senate when possible, but said, "I'm not sure that's going to happen here."
"It is my hope that at the end of the day senators, and they have their strong beliefs as well, will realize that if we're going to make this a reality then the House bill is going to be the way to go. I'm not looking to get up there tomorrow and to pass a piece of legislation, feel good about it, say, 'Rah rah, look what we've done,' and not have it passed into law. That's not what I'm all about," DeLeo said.
Of the 36 amendments proposed for the bill (H 4343), 31 are sponsored by one of the House's 34 Republicans and many of them would exempt certain facilities from the requirements of the original bill.
Bridgewater Rep. Angelo D'Emilia has proposed an amendment titled "Exemption for Bathrooms and Locker Rooms" which would allow businesses to require that patrons use "the lawfully sex segregated bathroom or locker room that is consistent with the individual's physiology or assigned sex at birth."
And Rep. James Lyons of Andover filed an amendment that would exempt restrooms or any other public accommodation "that lawfully segregates or separates access" based on a person's sex from the provisions of the legislation, which is a main tenet of the bill. Lyons also filed an amendment to exclude schools from the bill's requirements.
Rep. Randy Hunt, a Sandwich Republican, filed an amendment to exempt "public rest room, locker room, and bath house facilities intended primarily for the use of minors," and Attleboro Rep. Elizabeth Poirier has proposed excluding "multiple capacity gender based locker rooms and showering facilities where there is an expectation of privacy that do not provide for separation between occupants" from the provisions of the bill.
Rep. Keiko Orrall of Lakeville put forth an amendment to exclude "religious institutions who hold to a religious belief in sex segregated rest rooms, locker rooms, and bath house facilities."
Three amendments specifically address convicted sex offenders. Taunton Rep. Shauna O'Connell has proposed barring sex offenders "from asserting a gender identity claim to access lawfully sex segregated rest rooms and locker rooms," and House Minority Leader Brad Jones filed a similar amendment.
Rep. Thomas Calter, a Kingston Democrat, filed a proposal to ban sex offenders from "entering locker rooms, showers, steam rooms or saunas of the opposite sex from said person's sex at birth."
Democratic Rep. Christopher Markey of Dartmouth filed an amendment to exclude "the locker rooms of any entity in which its primary purpose is promoting and maintaining physical and mental health through physical exercise and instruction of minor children" from the prohibition on gender-identity discrimination so long as the facility has a written policy that "balances the availability of facilities of the entity, the privacy and dignity of the person ... and the privacy and dignity of any other person attending the entity."
Rep. Shawn Dooley of Norfolk has proposed allowing businesses to "designate a particular restroom facility as 'transgendered', 'gender neutral', or 'family use' provided that it does not provide any unreasonable hardship on the transgendered individual." Under Dooley's amendment, a business that designates one restroom as such would be able to have separate restrooms "safe for the sole exclusive use of the anatomical gender of the patron."
Another Dooley amendment would exclude "private organizations not open to the general public such as, but not limited to, clubs, private schools, parochial schools, gyms and other entities which are not primarily open to the general public" from the requirements of the bill.
Dooley also filed two amendments that would allow a parent of any gender to accompany their child aged 12 or younger into a bathroom that corresponds to that child's gender, and to allow a child of any gender no older than 12 to accompany a parent into a bathroom that corresponds to the parent's gender.
Billerica Rep. Marc Lombardo has proposed requiring any public accommodation built in Massachusetts after Jan. 1, 2017 to "maintain at least one gender neutral single-occupancy restroom for use by the public."
Other amendments deal with the penalties for someone who used the wrong restroom or asserts a false gender identity to gain access to a restroom or locker room, and to appropriate $15,000 to train police to "ensure appropriate law enforcement response to issues arising from the enforcement or implementation of this Act."
The House version of the transgender anti-discrimination legislation would take effect Jan. 1, 2017, while the Senate called for its protections to take effect immediately.
The House is expected to begin its debate and deliberation of the bill at 11 a.m. Wednesday.
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