We need to talk about why the LGBT community keeps losing non-discrimination fights at the ballot.
Last night, voters in Houston repealed the city’s Equal Rights Ordinance (HERO), a measure that prohibited discrimination on the basis of fifteen characteristics including race, sex, disability status, sexual orientation and gender identity. In the fight for LGBT equality, HERO’s repeal is one of the most significant, dramatic setbacks at the ballot box since California’s Proposition 8. And it highlights the utter failure of LGBT organizations and activists to effectively respond to right-wing horror stories about transgender people in public restrooms.
By all measures, proponents of HERO should have won at the ballot. They grossly outspent their opponents, had endorsements from major politicians, celebrities, and businesses, and early polling put support for the measure above the opposition. But on election night, Houston voters overwhelmingly voted to repeal the city's broad non-discrimination ordinance.
The simple explanation for HERO's defeat: the "bathroom predator" myth.
For months, HERO's opponents saturated the airwaves with fear-based ads warning that HERO would allow male sexual predators to sneak into women's restrooms by pretending to be transgender. It became the main and only real argument used by opponents to attack the ordinance, which they openly referred to as the "bathroom bill." That talking point was repeated endlessly in local media coverage of the HERO controversy; b-roll footage of public restrooms played constantly in the background of local news segments about HERO.
By the time the vote occurred, many Houston voters didn't even know about HERO's broad non-discrimination protections. As Buzzfeed's Dominic Holden reported, the "bathroom predator" talking point had come to completely define HERO in the minds of many voters.
That talking point proved to be a silver bullet against HERO, generating widespread opposition from voters who feared that protecting LGBT people from discrimination would somehow result in widespread sexual assault against women and children. In the end, voters were scared into stripping LGBT Houstonians of basic legal protections.
The "bathroom predator" myth is not some new tactic; it's been the right's most powerful weapon in defeating LGBT non-discrimination protections since before marriage equality was even part of the public's imagination. Research has found that merely mentioning the talking point typically turns a significant number voters against protections for LGBT people. Anytime voters have been asked about legal protections for LGBT people -- in Arkansas, Missouri, and North Carolina in just the past twelve months -- the "bathroom predator" talking point has been devastatingly effective at getting people to vote against their LGBT neighbors.
It shouldn't be.
Expert after expert after expert in cities and states with LGBT non-discrimination protections has dismissed the "bathroom predator" myth as "beyond specious." It's never, ever come true. It relies on grossly dehumanizing and mean-spirited depictions of transgender people. And it's based on a gross misunderstanding of how sexual assault actually happens. The talking point is so ridiculous and toxic that peddling it should be a liability for conservatives who want to be taken seriously by voters and media outlets.
But the "bathroom predator" myth continues to be a devastating obstacle in the fight for LGBT equality.
That's because LGBT groups have for years been too scared and risk-averse to seriously challenge "bathroom" messaging. In Houston, pro-HERO ads largely sidestepped the question of bathrooms, focusing instead on the ordinance's protections for groups like veterans. The campaign focused on a broader non-discrimination message rather than responding directly to opponents bathroom warnings, the theory being that voters would be more moved by positive messaging than opponents' scare tactics.
Many LGBT campaigns have adopted the "avoidance" strategy when dealing with the topic of bathrooms, usually with disastrous consequences. And it proved to be a disaster in Houston too. Because constantly pivoting away from discussions about bathrooms does nothing to allay people's fears or anxieties. It reinforces the perception that LGBT activists aren’t sure how to respond opponents’ central argument. It is easier to scare voters into voting against non-discrimination laws than it is to appeal to their better angels. Without a clear, compelling explanation of why the "bathroom predator" talking point is bogus, voters carry fear-based messages with them into the voting booth. Even supporters who generally support LGBT equality are deterred by unanswered ads about bathrooms.
What's needed is a dramatic shift in the way that LGBT activists talk about and fight for laws like HERO -- a shift that abandons the "avoidance" strategy of the past two decades and instead recognizes that the bathroom issue will be the central, dominant point of contention in any fight for LGBT equality. Rather than pray voters will ignore opponents' messaging, LGBT groups need to abandon the short-sighted pragmatism that motivates them to squirm around basic discussions about bathrooms. Centering transgender people's voices in messaging strategies will be a necessary, but not sufficient, part of that shift.
This kind of dramatic shift in messaging and strategy isn't unprecedented for the LGBT community. In the early 2000s, activists fighting for same-sex relationship recognition found themselves consistently losing at the ballot, even in progressive environments. Their mistake: emphasizing legal rights and protections and “avoidance-based” themes rather than responding directly to right-wing messaging about families and the well-being of children. This was largely the case in the fight over California's Proposition 8, where pro-equality ads focused disproportionately on the legal benefits of marriage equality. It was only after activists began shifting their messaging to match and undermine right-wing appeals to "family values" that they began seeing significant gains in public support for same-sex relationship recognition.
The takeaway: don't run from your opponents' best arguments. Take them on and learn how to win on their turf.
The right's obsession with the "bathroom predator" myth isn't going away. Across the country, conservatives are gearing up to make trans access to public restrooms a central sticking point in their fight against LGBT equality. And if LGBT activists are serious about enacting broad non-discrimination protections through legislation at the national level, the community needs to seriously reconsider the way it talks about bathrooms during public debates. It's not pragmatic or politically savvy to run away from this debate, and we'll keep losing major civil rights battles until we let go of our knee jerk reaction to taking our opponents' strongest argument seriously.