South Dakotans narrowly missed the detonation of a precedent-setting bomb on Super Tuesday when Gov. Dennis Daugaard vetoed a bill that would have been devastating for the transgender community. HB 1008, which was designed to “restrict access to certain restrooms and locker rooms in public schools,” would have required that students use bathrooms and locker rooms that match their “biological sex.” It’s just one of a number of so-called bathroom bills that target the trans community by forcing people into unsafe spaces that don’t align with their gender — a form of political dogwhistle that relies on fear of the trans community to whip up sentiments among conservatives.
With trans visibility growing year by year, so too are bathroom bills. Republicans aiming to capture or retain Congressional seats in this year’s election are particularly focused on promoting such bills in their home states. These lawmakers, known for campaigning on “values” platforms, are appealing to a deeply conservative base, and they’re set to do real damage to the trans community. (It should be noted that Gov. Daugaard didn’t veto the South Dakota bill out of concern for transgender rights — he was worried the bill might expose the state to litigation.)
Though it’s only March, South Dakota isn’t the only state peeking into children’s pants. An Illinois legislator just introduced a similar bill, another hit the Virginia House in January, and Oklahoma has joined the parade as well. After Washington’s Human Rights Commission determined that transgender people should be allowed to use bathrooms corresponding with their gender, the state Senate narrowly defeated a bill that attempted to repeal the ruling.
This continues a trend we saw last year, when Nevada, Minnesota, Kentucky, Wyoming, Florida, Missouri, Wisconsin, Colorado and Indiana all considered bathroom bills; thankfully, they all failed to pass, but some — if not all — of those states will likely reintroduce their bills in 2016. And prior to 2015, trendsetters Arizona and Utah also weighed bathroom bills. In some cases, the legislation died at the 11th hour, like it did last week in South Dakota, illustrating how tight the fight is in many states. Being able to pee, which should be a fundamental right, is dangerous and now potentially illegal in some parts of the U.S. — like in Houston, where a controversial equal-protection ordinance failed to pass when brought to voters in November 2015.
Some cities have also been battling it out over bathrooms, with some extending protections to the trans community and others trying to strip such protections; for instance, Charlotte, North Carolina, recently extended bathroom accommodations. And then there’s the ongoing suit in Virginia debating a student’s right to use the bathroom in peace. Conservatives have been at the forefront of conversations about such legislation, rabidly opposing greater civil rights protections while promoting bills that would limit them, warning that “men” will be in the bathroom with little girls and raising the specter of rape and assault in women’s bathrooms in transmisogynistic moves that deny the humanity of trans women, reducing them to a “men in dresses” stereotype. To date, there have been no cases in which a transgender person has committed assault in a bathroom — but 70 percent of trans people have experienced harassment and assault when trying to pee.
There’s a reason bathroom bills are exploding right now. It’s not just about trans visibility and a growing sense of transphobia in conservative communities as they’re forced to come to grips with the existence of the trans community. It’s also closely associated with the 2016 presidential election, in which Republicans want to maintain their stranglehold on Congress. For them, opposing trans rights dovetails neatly with the interests of the right, allowing candidates to come out swinging against civil rights to appeal to conservative voters. Moreover, reintroducing constant fear brings voters out for downticket races, as right-leaning voters will turn out in force to prevent state houses from passing inclusive legislation and they’ll also vote for Republican Congress members.
There’s alarming overlap between states where bathroom access is being debated and those with contested Congressional seats: Florida, Indiana and Nevada all face open seats, since Marco Rubio, Dan Coats and Harry Reid don’t intend to seek reelection. Representatives with a history of introducing and supporting bathroom bills could enjoy an edge with conservatives who want to limit trans rights.
Meanwhile, Republican Sen. Ron Johnson of Wisconsin is struggling, and Sen. Mark Kirk of Illinois will be going up against Democrat Tammy Duckworth, a disabled veteran who has crushed her opposition on more than one occasion. The GOP also hopes to pick up a seat in Colorado. In all cases, nudging on a bathroom bill could help tip the scales.
In the House, Rep. Alan Grayson is fighting for spot representing Floridians, while Colorado Republicans are eyeing Democrat Michael Bennett’s seat. Seats in Illinois, Indiana, Minnesota and Nevada are also potential tossups that could turn into ferociously competitive races. Conservatives, highly skilled at crafting tight, single-issue political messages will likely engage with the subject of bathroom bills because they’re so high-profile.
For some, that might mean touting voting and performance records. Others might show up in support of such bills in the hopes of being able to bask in some reflected glory, and yet others will be making campaign promises relating to bathroom restrictions. With Republicans already employing transphobic rhetoric in support of such legislation, the base is primed to fear trans people in bathrooms and to see these kinds of bills as a natural extension of American values, designed to protect people from influences that conservatives describe as predatory.
It’s troubling that bathroom bills could be used in a naked ploy to dominate downticket races in this election, as it further demonstrates that American conservatives have perfected the art of striking fear into worried audiences. All it takes is the suggestion of danger to create a highly reactive response that could restrict trans rights even as the community makes its way into the daylight.