If you had gone to the State of Colorado, this past summer, chances are, you would have heard the following on radio or television, in heavy rotation:

“ANNOUNCER: If the Colorado Legislature has its way…

GIRL 1: Mom! A man in a dress came into the girl’s bathroom at school today!

ANNOUNCER: We could all be dealing with a new type of predator

WOMAN: [ambient sound under of woman getting out of car, door beep and close] Honey, there was a man using the women’s showers today at the fitness center I asked the management why?!...They said it was Colorado law!

ANNOUNCER: And instead of our kids worrying about finals and the prom they’ll have to worry about who’s in the bathroom with them at school.”

That was the voice-over for an advertisement put out by Dr. James Dobson and Focus on the Family, in the newest approach to combat civil rights for transgender and occasionally even all GLBTQ persons. In the past year, there have been a number of areas in which the potty debate has mushroomed into mass panic. This began in Montgomery County, Maryland, when Councilmember Duchy Trachtenberg sponsored a bill on November 13, 2007 that extended civil rights to transgender people. This caused one right-wing lobby group, called Citizens for a Responsible Government (CRG) to unleash a firestorm campaign of fearmongering designed to get people to sign a petition to repeal the law. The State of Colorado followed, as did Hamtramck, Michigan and Gainesville, Florida.

Legislation that includes “gender identity” and “gender expression” is generally targeted to protect transsexuals, other transgender people and genderqueer persons who might not even think of themselves as “trans” in any way (i.e. women who appear masculine or “butch,” men considered effeminate - which is why trans protections are still often a full GLBTQ community issue). It is often aimed to prevent discrimination in employment, housing, access to health care, recognition of gender status, and/or protection under hate crimes legislation. Over 105 such pieces of trans-inclusive legislation have been introduced across the US (which shows how far ahead trans activism is down south, compared to Canada) since 1975 in Minneapolis, Minnesota. The number of times these pieces of legislation have been used to justify predatory behaviour against women or children in a washroom? Zero (if there had been, you can bet that CRG would have seized upon them). The number of times that usage of these laws has been attempted and failed because the judge used common sense and realized that the defendant wasn’t really trans and was motivated by purely predatory motives? Once (Portland, Oregon).

Still, in an advancing trend, the entire trans civil rights issue is repeatedly filtered down to a debate about washrooms, with conservatives brashly flaunting assumptions that all transsexuals are “male” and that all males are sex predators (female-to-male transsexuals are usually completely disregarded in these arguments). Everything else is summarily negated by playing on a fabricated spectre of the transgender bogeyman and the squick factor of having to share a washroom with “one of them.” It plays on an assumption that transsexuals are sexually-motivated to make their life change (which is usually not the case, and if that were true, male-to-female-specific hormone replacement therapy would often be self-defeating), and preys on the societal inclination that anything sex-positive is bad and a danger to children.

Fortunately, the washroom argument is not holding water. In Colorado, the Governor signed the trans-inclusive bill into law, and the furor died down. On September 10th, the particularly fierce battle in Montgomery County Maryland came to an end when a judge ruled that due to a series of dubious signatures, confusion on the number of signatures required, and the misinformation that was being fed to the public through fearmongering, an initiative to place the legislation on the ballot for a public vote was invalid. Montgomery County’s approach to fighting and/or repealing trans-inclusive laws had been hailed as a model for right-wing organizations to follow in the future, so CRG’s failure here is significant. Still, the battle rages on in Hamtramck and in Gainesville, the latter battle of which is particularly insidious. In Gainesville, the deceptive petition wording is that petitioners want legislators to match discrimination legislation to that of the State of Florida, which would not only prevent protection of transgender people, it would also negate existing protections from discrimination for people based on sexual orientation.

Whether or not such battles come to Canada will likely depend on if any of these campaigns accomplish any measure of success, and also on Canadians’ susceptibility to transphobic fearmongering. As trans activism is much further behind similar advocacy in America (currently, there is no national trans advocacy organization, nor any group that has taken on trans issues as a key part of its mandate - if you want to change this, check in at http://groups.yahoo.com/group/transactioncanada/ and make your voice heard), it could be some time before we find out.

Our southern cousins accomplished an equally significant win on a second front. On September 19th, the Federal District Court in D.C. set down a landmark ruling in the employment discrimination case of Schroer v. Billington. Diane Schroer, a retired veteran with untouchable credentials in the military, had applied for a job as a counter-terrorism expert with the Library of Congress, was accepted, and then had the offer withdrawn. The reason: she had interviewed for the job while presenting as male, but after accepting, had thought it wiser to inform the director of her intention to transition from male to female (thinking it less disruptive to begin work as Diane than it would be to transition midway into the job).

The case was a rarity in that the withdrawal was clear and obvious discrimination, unlike so many such cases where the employer is able to drum up several alternate excuses, and the onus is put on the plaintiff to prove that discrimination was the primary or sole causal factor. The Library’s director bluntly stated that her concern was that being transsexual would affect Schroer’s security clearance, that it would cost her credibility, and that it would be a distraction. She also argued that transgender people are not specifically protected from discrimination, which apparently made this okay.

It wasn’t okay. The ACLU successfully argued that transgender people are in fact protected in the US from employment discrimination on the basis of “sex,” based on previous rulings in cases where people had been discriminated against because of “sex stereotyping” - ie. women wrongly fired for not appearing “feminine” enough or males for not appearing “masculine” enough.

This may not be the last word in this case. The Library of Congress is considering appealing the ruling to the Supreme Court. And historically, such rulings have proven to be subject to interpretation, which is why specific inclusion of “gender identity” and “gender expression” is still an important goal. In Alberta, as with most provinces, transgender people are considered protected from discrimination on the basis of “sex,” but this has also been dismissed at times by the courts, or interpreted creatively.

This is why we can anticipate some more potty wars ahead of us, and maybe closer to home.

”Mercedes Allen is a writer who blogs at http://dentedbluemercedes.wordpress.com/, has been featured on bilerico.com, PageOneQ and others, and has also developed the website at AlbertaTrans.org as a resource for transgender information and support.”