HERO law was right, in spite of consequences

On Tuesday, November 3rd, Houston held a referendum that repealed the Houston Equal Rights Ordinance (HERO), a bill that banned discrimination based on sexual orientation, gender identity, race, age, marital status, military status, and nine other characteristics. Houston’s mayor, Annise Parker (D), the first openly gay mayor in a major city in the United States, had introduced the bill, and the city council passed it in May 2014, but a petition was signed to call for a referendum on whether or not to repeal the law.
The petition failed because not enough signatures were validly signed. Many of them lacked required information: names, dates signed, addresses, voter registration numbers, or dates of birth. Some signatures were considered invalid because they were on the same pages as incompleted ones. The Texas Supreme Court overruled the decision and said that the decision would go to a referendum if the city council did not repeal the ordinance by August 24th. For over a year since the law was passed, residents, lawyers, and politicians fought over whether or not to to repeal the ordinance because it had added protections for transgender people in public accommodations, and would have let them use bathrooms that corresponded to their gender identities. The moment that the Houston Equal Rights Ordinance included gender identity as separate from sex and sexual orientation was the same moment that led to its repeal.
When Washington, Oregon, Hawaii, Minnesota, Illinois, and California enacted anti-discrimination bills based on sexual orientation and gender identity, they included gender identity under sex, or as part of sexual orientation. Legislators use the strategy in order to pass bills that add protections for transgender people in areas where such bills are relatively difficult to pass because more people oppose discrimination based on sex or on sexual orientation than on gender identity. The Houston Equal Rights Ordinance included gender identity as its own entity and added protections for transgender people in public accommodations, or “every business with a physical location in the city, whether wholesale or retail, which is open to the general public and offers for compensation any product, service, or facility.” New Jersey, Vermont, and Maryland are among the few states that have passed such a bill.
Massachusetts, one of the leading states in LGBT equality, has yet to do what the city of Houston tried to do. In 1989, it was the second state to add anti-discrimination protections based on sexual orientation and did so in employment, housing, credit, and services. In 2003, it was the first state to legalize same-sex marriage, and, in 2011, it added protections for transgender people in employment, housing, credit, and public education. The 2011 An Act Relative to Gender Identity excluded public accommodations because opponents argued that its inclusion would have allowed sexual predators to purport to identity as women to gain entrance into women’s bathrooms. Transgender people in Massachusetts who are denied access to restrooms that correspond to their gender identities must file discrimination claims based on sex, sexual orientation, or disabilities. Nondiscrimination bills that include gender identity as a separate entity are harder to pass.
Including public accommodations changes is harder because many people think that such accommodations include bathrooms. However, public accommodations are businesses, and neither are bathrooms. Opponents continue to use the bathroom argument in order to scare voters into repealing the ordinance to remain in effect. Last year, presidential candidate Mike Huckabee (R) asked Houstonians to tell the city council members and Mayor Parker that voting for the ordinance would “be unsafe for women and children.” Before the referendum, Texas Governor Greg Abbott (R) tweeted, “Vote NO on City of Houston Proposition 1. No men in women’s bathrooms.” An early draft of the bill also drew attention towards bathrooms because it would have allowed transgender people to use whichever bathrooms corresponded to their gender identities. Enough voters voted no because they believed that the ordinance threatened women’s safety in bathrooms.
Hence, Houston’s population of 2.2 million people is still not protected from discrimination. If public accommodations or gender identity were excluded from the bill, then conservatives would not have used the bathroom argument. If gender identity were included under sex or as part of sexual orientation, then more voters would have voted yes. However, gender identity is not part of anyone’s sex or sexual orientation, and legislators should not have to pretend that it is in order to help pass antidiscrimination laws. States and cities that provide transgender people with anti-discrimination protections because their legislators lied say the same thing that California, Oregon, Hawaii, Minnesota, Illinois, and Washington said when they enacted protections: not enough of their governors, mayors, legislators, or residents think that transgender people deserve the same protections as everyone else.

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