Massachusetts senators leaning against 'improper purpose' clause in transgender bill
BOSTON >> With the Senate preparing to debate a transgender anti-discrimination bill on Thursday, Senate President Stanley Rosenberg on Tuesday called it "unlikely" that the branch would adopt a provision backed by House leaders to guard against improper use of the proposed law that was designed, in part, to make some House Democrats more comfortable voting for bill.
The language added to the House version of the bill as it moved out of committee would require Attorney General Maura Healey's office to "issue guidance or regulations" for handling legal action against anyone who "asserts gender identity for an improper purpose." While Rosenberg said the section "does no harm," he also called it "redundant" and said there was little support in private discussions with Senate Democrats for adding it to the Senate bill.
"Our analysis based on the information from our legal team is that it does no harm, and it's unnecessary because if people behaved in the way that language seeks to avoid there are already statutes, six, eight, nine statutes already in place, that would declare certain of those actions illegal and they would be subject to arrest and prosecution," Rosenberg told reporters during a wide-ranging interview Tuesday morning.
The bill (S 735) would prohibit discrimination against transgender people in public accommodations and allow them to use the restrooms and locker rooms that correspond to their gender identity. Senators filed 11 proposed amendments to the public accommodations bill ahead of Monday's deadline, but none of them seek to add the provisions unique to the House version of the bill ( H 4253) for which House Speaker Robert DeLeo has already declared his support.
"If the House version of the bill is approved by the House there will probably be a conference committee, because, again I don't want to jump ahead of the process in the Senate, but there didn't seem to be a lot of support when we talked with people about adding language of that sort," Rosenberg said.
It is unclear when the House intends to take up its version of the bill. DeLeo told reporters last week that he plans to wait until the Senate acts to decide how to proceed in his own chamber. However, the disagreement over the language has the potential to extend the debate over the issue in the closing months of the session, giving Gov. Charlie Baker more time to consider his options.
Seven of the 11 proposed Senate amendments were filed by Minority Leader Bruce Tarr of Gloucester, including three that would each establish a penalty for a person who "knowingly and deceitfully" misrepresents their gender identity to access a sex segregated public accommodation, according to his office.
The first of the three options would levy a penalty similar to that for disorderly conduct -- not more than $150 for a first offense, and not more than $200 and up to 6 months in a house of correction for a second offense.
The second amendment proposes a penalty parallel to that for a person who illegally prevents someone's access to public accommodations — a fine as great at $2,500.
The final Tarr penalty amendment mirrors the penalty for violating the state's prohibition on secretly photographing up a woman's skirt — a fine up to $5,000 and/or up to two and a half years in a house of correction, or a fine up to $10,000 or up to 10 years in prison if the victim is under the age of 18.
Tarr also filed amendments that would require the Massachusetts Commission Against Discrimination to make an annual report regarding all MCAD cases related to access to public accommodations for transgender individuals, and establish that a legally amended birth certificate "shall create a rebuttable presumption of such person's sincerely held gender identity."
The Gloucester Republican also proposed an amendment declaring that the provisions of the bill "shall not apply to facilities with one or more restrooms designated as unisex."
Sen. Cynthia Creem has proposed appropriating $15,000 to the Executive Office of Public Safety and Security "to train state and municipal police to ensure appropriate law enforcement response to issues arising from the enforcement or implementation of this act."
Tarr's North Shore counterpart Sen. Kathleen O'Connor Ives of Newburyport proposed an amendment clarifying that nothing in the bill should be read to "compel sex-segregated bathroom facilities to be converted to unisex bathroom facilities."
Sen. Michael Moore of Millbury filed a similar amendment, making clear that the language of the bill should not be interpreted to "require any new construction at any public accommodation."
Rosenberg said he and Judiciary Committee Co-chairman Sen. Will Brownsberger "will be meeting and chatting about all of the amendments," and Senate Democrats plan to caucus on Wednesday morning, which will afford the majority party an opportunity to discuss the amendments among themselves.
The Senate's passage of the public accommodations bill seems inevitable. Rosenberg has said the Senate has the votes to pass the bill and has been ready to debate it since November. But the bills weren't liberated from the Joint Committee on the Judiciary until late April, after languishing in the committee for more than a year.
The House version — a redraft that emerged from the Judiciary Committee — would take effect Jan. 1 and requires the attorney general to issue guidance and regulations for instances where people assert "gender identity for an improper purpose," language that is not in the Senate bill and does not appear to be included in any of the proposed amendments.
On Friday, Freedom Massachusetts, a group pressing for the bill's passage, raised questions about the "improper purpose" clause.
"We are concerned that language added in committee puts law abiding members of the transgender community at risk of improper law enforcement even though we know that is not the intention," said Carly Burton, campaign manager of Freedom Massachusetts. "The legislative process is very dynamic and we look forward to continuing to work with lawmakers. We are aware that every day that goes by without explicit protections, transgender people face discrimination and harm, and we look forward to this bill becoming law as soon as possible."
The opposition to the House language in Senate, according to some familiar with the thinking of leading Democrats, also stems from a belief that calling attention to the risk of "improper purpose" plays into the critique from opponents of the bill with no added benefit under law.
On Monday, speaking to the "improper purpose" clause, Rosenberg told reporters, "What I understand from the people who've studied it so far is that it doesn't fundamentally undercut the purpose and the principles of the bill but that the language might not be necessary but it does not harm the bill if it were to be in the bill."
A recent Suffolk University/Boston Globe poll found that 53 percent of voters support passage of a transgender public accommodations bill, while 30 percent oppose it and 15 percent remain undecided.
While Tarr has filed an amendment delaying the bill's effective date, bill supporter Sen. Sonia Chang-Diaz has an amendment inserting an emergency preamble to make the bill take effect immediately.
"As long as eliminating discrimination is still the heart of the bill, then the bill works if it gets signed into law," Rosenberg said.
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