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What the Death of Virginia’s ‘Bathroom Bill’ Means for LGBTQ Rights

Image: Bob Marshall
Bob Marshall, R-Prince William, gestures during a committee hearing at the Capitol in Richmond, Va., Thursday, Jan. 19, 2017. The committee voted down his transgender bathroom bill. Steve Helber / AP

Virginia’s anti-LGBTQ “bathroom bill” has died.

House Bill 1612, which mandated that transgender people in the state must use restroom facilities that correspond with their “original birth certificate,” was tabled in the General Assembly following an unrecorded voice vote by members of the House General Laws Subcommittee. Republican legislator Bob Marshall, who authored the bill, protested the decision, demanding that the lawmakers who voted against it go on record “so the Virginians know what you’re doing.”

The legislation, if passed, would have further forced educators to out trans youth to their parents if they “request … to be recognized or treated as the opposite sex, to use a name or pronouns inconsistent with the child's sex, or to use a restroom or changing facility designated for the opposite sex.”

In a phone interview with NBC Out, Marshall claimed the bill was necessary to protect students in Virginia schools from guidance issued by the Obama administration in May 2016.

The Department of Justice issued a “Dear Colleague” letter advising K-12 institutions to allow trans students to use locker rooms and restroom facilities that are consistent with their gender identity in schools. That guidance was opposed by 11 states, which filed a lawsuit to fight the government’s interpretation of Title IX. That law, which is part of the Education Amendments of 1972, prohibits discrimination on the basis on race, sex, national origin and religion in public schools. The administration stated that under its interpretation, that law would extend to protections based on gender identity.

“The Obama administration has concocted a story about Title IX that goes clearly against Title IX regulations,” Marshall said, adding: “All I want is the status quo. A guy right now who plays on the football team cannot go into the girls’ locker room and demand to shower with the cheerleaders. A biological male right now cannot use the female bathrooms. That’s not revolutionary. That’s not bigoted. That’s not prejudiced. That’s common sense.”

Although Marshall could not cite an instance of men entering women’s locker rooms or restroom facilities in Virginia, he claimed that had been the case in other states that have passed non-discrimination legislation allowing equal access for transgender people.

As multiple independent investigations have shown, these allegations are based on a widely held myth about “trans bathroom predators” entering public bathrooms to target innocent people. Media Matters for America found that of 12 states that had passed inclusive restroom ordinances, there had been zero reports of sexual violence in public facilities as a result. Another survey reported that of the 200 cities that had enacted non-discrimination protections for their trans residents, none had experienced the problems Marshall described.

Following the bill’s defeat, Equality Virginia commended the legislature for striking down a bill the state’s governor, Terry McAuliffe, already stated he would veto.

“[HB 1612] would have caused undue harm to Virginia’s transgender community as well as the economy,” the LGBTQ advocacy group stated in a press release. “Equality Virginia applauds this decision by the committee and recognizes decisions like these keep Virginia on the path of full equality, being a state that is a safe, welcoming, and equal place for gay and transgender individuals.”

Similarities to North Carolina's HB 2

In many ways, HB 1612 was patterned after North Carolina’s HB 2—the controversial restroom legislation that led to widespread public backlash after the bill was passed last March. After it was signed into law, the state was denounced by a long list of major companies, including Apple, Google and Microsoft. PayPal and Deutsche Bank, both of which had planned to expand their business to the state, opted to move elsewhere. Sporting leagues like the NCAA, ACC and NBA all canceled scheduled championship games in North Carolina, which included the NBA All-Star Game. The latter cost the state an estimated $100 million in lost revenue.

The Williams Institute, a pro-LGBTQ think tank at UCLA, further estimated the bill would cost North Carolina $5 billion every year it remains law.

Marshall, however, previously dismissed the economic impact of HB 2 in a press release, claiming North Carolina actually recorded a “$425 million surplus for the previous fiscal year.” But he stated over the phone that there’s a key difference between North Carolina’s law and HB 1612: HB 2 applies to private businesses, whereas his bill only applies to schools and government buildings.

Despite the potential consequences, legislators in states like Texas, South Carolina, Alabama, Georgia and Kentucky have already introduced bills that would bring HB 2-style measures to their districts.

Failure of Anti-LGBTQ Legislation

Jennifer Pizer, the Law and Policy Director for Lambda Legal, is hopeful these bills will meet the same fate as HB 1612. She noted that while more than 200 anti-LGBTQ pieces of legislation were debated at the state-level last year, there was a 98 percent kill rate on these bills. Almost none became law, and many didn’t make it out of subcommittee. Dennis Daugaard, the Governor of South Dakota, vetoed a bathroom bill targeting trans students that had passed the state’s House and Senate. Although he initially signaled he would sign the legislation, Daugaard had a change of heart after meeting with LGBTQ advocates.

“Even in conservative places, legislators did not enact a broad number of those bills into law,” Pizer told NBC Out. “North Carolina was an object lesson in the fact that corporate leadership has made it clear that this kind of legislation is divisive and creates a terrible environment for employees and for businesses who want to invest long-term in a state.”

LGBTQ rights advocates expect that even more anti-LGBTQ bills will be debated in 2017, but Cathryn Oakley, the Senior Legislative Council at the Human Rights Campaign, noted a trend among these laws: They are no longer “being taken seriously” by legislators.

“As we’re seeing these bills be reintroduced, they’re being introduced by people like [Bob] Marshall — who are on the fringe in terms of social policy,” Oakley said. “Marshall has demonstrated where he is. He has a long opposition to LGBT rights. He has a long opposition to women’s rights. He had another bill that failed yesterday about the inherent differences between men and women [in order to make] sure we’re not eroding that distinction. That also died in the same committee.”

Marshall Plans to Reintroduce 'Bathroom Bill'

Marshall, who has elsewhere declared porn a “public health crisis,” said that he would seek to reintroduce another version of HB 1612, which went through a number of changes before being debated Thursday, in future legislative sessions. The final version of the bill, he clarified, allowed trans people to use the bathroom that corresponds with their gender identity if they had changed their birth certificate accordingly.

“If somebody went through all the process of a sex change—which has very serious psychological problems associated with it—I decided that OK, you can use that facility corresponding to your artificially created sexual status,” he claimed.

Marshall further affirmed his belief that gender is “not a feeling.”

“Wishing makes it so doesn’t work,” he claimed. “If an anorexic girl, if a counselor said, ‘You are really overweight, lady, you need to go on a crash diet.’ Someone who is an alcoholic doesn’t need to be told, ‘Oh, you’re sober,’ all the time. If you don’t tell people the truth about themselves, you can’t really be counseling them.”

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