In late October, Human Rights Campaign President Chad Griffin explained why his group was spending an unprecedented $600,000 to uphold an ordinance in Houston that banned discrimination. It was critical, he said, for the largest LGBT organization in the country to represent the interests of its 1.5 million members and supporters.
"These are grassroots folks who give to us so that we can fight these battles, wherever they are," Griffin told BuzzFeed News at the campaign headquarters, where he’d just flown in from Washington, D.C.
After marriage equality was won at the Supreme Court, HRC placed a priority on passing a nondiscrimination law in Congress. To build momentum, they endeavored to pass nondiscrimination legislation in cities and states along the way. Griffin said that when “building momentum across the country, every victory you have is a building block.” So defending Houston’s law was essential.
"This is a big one, it’s an important one, it’s an expensive one,” he said. “But it’s a battle we have got to win."
Six days later, however, voters repealed the law by a 22-percentage point chasm — despite the fact that Griffin and his allies were six and nine points ahead in two early polls. Houston Unites, the name of the central campaign, had raised about $4 million in total, outspending their opponents three to one.
Their defeat can be attributed primarily to one ubiquitous, bumper-sticker-ready slogan: “No men in women's bathrooms.” Anti-LGBT activists ran that message with visceral TV and radio commercials that claimed Houston’s nondiscrimination law would lead to men sexually assaulting young girls in public restrooms. This attack has been raised by conservative opponents virtually everywhere laws like this have been debated in recent years.
The argument is based on an underlying premise that transgender women are actually dangerous men — a claim that has no factual foothold. It’s never been an issue in the 200 cities and 17 states with laws like these on the books. But it’s kryptonite to LGBT nondiscrimination laws.
One day after the Houston defeat, on Nov. 5, Griffin addressed his massive lists of members and supporters with an email titled, “A wake up call.”
"While I know that the loss in Houston is heartbreaking and not something anyone thought would happen, this fight isn't over,” he wrote. “We will refuse to let something like this happen in your hometown.” There was also this fundraising pitch: “We have emptied the war chest for the fight in Houston and we need to replenish now for the battles ahead.”
About a month later, the next battle is here and that same virulent bathroom message, inevitably, is back.
But it’s not clear that HRC got the wake-up call. The organization — the top organization trying to pass and uphold LGBT nondiscrimination policies — is unwilling to say how it plans to address the bathroom attack, or even how its strategy will change in the wake of the Houston vote and other cities.
Within the past year, voters in Springfield, Missouri, and Fayetteville, Arkansas, also repealed nondiscrimination laws after critics warned about men in women’s restrooms, along with concerns about infringements of religious freedoms. A bill that had been moving through the city council in Cleveland, Ohio, stalled in late 2014 after the bathroom attack was raised. In Charlotte, North Carolina, the city council rejected the same sort of bill in March after critics deployed the bathroom attack.
The same message is already resonating on other 2016 battlefields.
Activists filed a petition in Anchorage, Alaska, the day before Thanksgiving to repeal the city's LGBT nondiscrimination law, which was passed by the city council in September.
What’s the primary motivation to overturn the law? “We do not believe that a man should be using the same bathroom as our little girls,” Bernadette Wilson, who filed the application for a referendum, told BuzzFeed News in early December.
Likewise in Indiana, an effort is already underway to block an LGBT nondiscrimination bill — by focusing on the bathroom issue. Eric Miller, executive director of the group Advance America, proclaims in a new video, “The women and children of Indiana are in great danger.”
Millers warns that the Indiana legislature, which convenes Jan. 5, will be considering “dangerous legislation that could give a man — including a sexual predator, a rapist, or child molester — the right to be in a women’s restroom and women’s locker room with your wife, your sister, your mom, your daughter, and your granddaughter.”
LGBT-rights activists are also trying to pass a nondiscrimination law in Jacksonville, Florida — where opponents adopted a rallying cry last month of “No men in women’s bathrooms” — and they are remounting an effort in Charlotte. It’s simmering in Anchorage, where proponents of the repeal effort are currently sparring with the city over petition language.
In short, this is an ongoing problem for LGBT nondiscrimination efforts — perhaps the greatest obstacle to achieving their post-marriage agenda.
BuzzFeed News asked HRC spokesperson Olivia Dalton, a couple times in early November and again early December, how the nation’s leading LGBT advocacy group will deal with the bathroom attack when this comes up again in Anchorage and other locales expected to take up the same sort of law in early 2016.
"HRC will be mobilizing our millions of members, supporters, and pro-equality voters in places where LGBT people are under attack, and we are looking at where our other resources will have the greatest impact," said Dalton, avoiding a direct answer.
HRC did those things Dalton mentioned in Houston — more than it ever had done before, including shipping 34 staffers to work full time on the campaign — and it failed.
"They keep on making the same mistakes over and over," said Barbra Casbar Siperstein, a member of the DNC's executive committee and political director of Gender Rights Advocacy Association of New Jersey, who spoke to BuzzFeed News in her own capacity and not on behalf of the organizations. “I really don’t see that they have a plan — have they learned from the Houston experience?”
Moreover, she continued, "If LGBT equality laws are being repealed locally, it’s going to make it impossible to do anything nationally."
Presidential candidates have also picked up the issue, particularly in response to the Obama administration interpreting civil rights laws to say transgender students can use single-sex school facilities corresponding with their gender identity. On Nov. 19, Sen. Ted Cruz argued the “federal government is going after school districts, trying to force them to let boys shower with little girls.”
Asked yet again this month how HRC would address the bathroom issue, HRC did not answer.
“They absolutely have a responsibility to figure this out,” Justine Turnage, vice president of Arkansas’s Transgender Equality Network, said in a phone call with BuzzFeed News. “And the thing is, we are telling them how to approach this. If they are going to push these ordinances, and get us hopeful for new protections, then they need to be able to win it and make it stick. That’s going to require heavier emphasis on transgender issues.”
Turnage worked on the campaign to uphold Fayetteville’s LGBT nondiscrimination ordinance, a campaign that failed in 2014 despite HRC’s heavy involvement. Local activists then remounted a campaign to pass and uphold the law in 2015 — this time successfully — without HRC’s prominent hand, she said. Their strategy: putting transgender people and locals out front on the campaign.
BuzzFeed News asked the same question of Freedom For All Americans, another key national player in the Houston campaign, but got no reply.
That group, it bears mentioning, includes many former employees of Freedom to Marry, which is shuttering operations after winning at the Supreme Court. The new group has explicitly aimed to use successful Freedom to Marry strategies in advancing LGBT nondiscrimination work.
But the larger problem, it appears, is that the modern LGBT rights movement was built around opposing anti-gay efforts — at the ballot and within government — and eventually winning on gay issues, particularly marriage equality.
During that time, though, the big national groups invested comparatively little infrastructure or expertise into nurturing transgender issues. Moreover, they conducted less organization-building and education within conservative states — where marriage equality prevailed due to court rulings more than grassroots activism — even though those states lacked anti-discrimination laws.
Now, the remaining battles for LGBT rights are largely focused on those issues and in those conservative states.
It’s particularly unsurprising the bathroom message has returned to Anchorage, where an LGBT nondiscrimination initiative was beaten back just in 2012. This is one of the commercials, which says the law would have allowed a man who identifies as a woman to terrify women in locker rooms.
Although the attacks, as described by critics, are a myth, discrimination against transgender people is verifiably rampant. Study after study shows trans people are refused jobs and housing, physically attacked, and murdered in highly disproportionate rates. According to the National Coalition of Anti-Violence Programs, homicides of trans women in the United States doubled in the past year.
So the bathroom smear against this population is not just a means to legalize anti-transgender discrimination, it’s a catalyst to promote it.
“The tragedy here is trans folks are the ones who are often harassed and victimized when they visit public bathrooms, because folks across the country are perpetuating this myth,” Andrea Zekis, policy director of Basic Rights Oregon, told BuzzFeed News. “Transgender people visit bathrooms for the same reasons as everyone else — to use it. And when we do, we want privacy, dignity, and respect just like everyone else.”
Grassroots activists have suggested several responses for campaigns. The most obvious is pointing out there have been no incidents of these LGBT nondiscrimination laws being used for nefarious purposes in restrooms in the cities and states where they are currently on the books.
Another defense: In TV ads, campaigns could feature transgender women who familiarize themselves to voters, show they’re not men, and explain that they use the bathroom to pee, not to prey.
“Like in every movement,” Zekis said, “stories are our most powerful tool. That’s how we brought love back to marriage and we can do the same for giving dignity and respect to transgender people in this country. Not addressing this myth feeds this culture of violence and misunderstanding about transgender and gender-nonconforming individuals.”
Perhaps most pointedly, scruffy, muscular transgender men have been posting selfies from inside women’s bathrooms — ostensibly where some conservative activists and politicians want transgender men to pee — to show that requiring people to use the restrooms associated with their birth sex actually creates the very problem of “men in women’s bathrooms” conservatives claim to oppose. (Republicans in Florida and other states have introduced bills in the last year requiring people to use the restroom associated with their birth sex.)
But some political experts have suggested LGBT advocates avoid the bathroom debate entirely.
Robert Stein, a political science professor at Rice University, oversaw a poll by his college and the University of Houston that gauged persuasiveness of pro and con arguments. The strongest argument for repealing the law was bathrooms, swinging nearly 7% of voters to oppose the measure, he told BuzzFeed News a few days before the elections. But there was an even stronger counter message to uphold the law — focusing on the economic risks of repealing it — and Stein said proponents should focus on that.
But instead Houston Unites spent hundreds of thousands of dollars on ads that argued the nondiscrimination law made the city more equitable for everyone, particularly focusing on veterans. Indeed, the law banned discrimination on a wide range of characteristics, from race and gender identity to sexual orientation and military status.
In response to critics, one ad showed a former cop saying predatory behavior in bathrooms was unfounded and illegal under the law. But Richard Carlbom, the campaign manager of Houston Unites, told BuzzFeed News he did not know how much they actually ran that ad on TV. It was important to assuage concerns about the bathroom message, he said, and then focus on the benefits of the law.
“I think we have done a good job of providing people a space to lower their anxiety and then find a path to get to a yes vote,” he said four days before the election.
But consider the strategy for marriage equality, which ultimately won popular support because people saw images of loving same-sex couples and their families. Maybe that strategy of aggressively putting forward people in the heart of the debate — in this case, transgender women — will persuade voters in some places, and maybe not work in others.
For their part, the American Civil Liberties Union — a major player in LGBT politics nationally — did respond to BuzzFeed News’ request to comment about the bathroom issue. The group’s state affiliate had raised money for the Houston campaign and donated its office to become the campaign headquarters.
Crystal Cooper, a spokesperson for the ACLU, said the group is committed to upholding the law in Anchorage and “to countering deceitful anti-trans rhetoric used to try to repeal it.”
“We will do so by educating voters and helping them understand who transgender people are (i.e., NOT ‘men dressing up as women’), that they are not sexual predators, that they need to be able to use the restroom safely just like everyone else, and that the nondiscrimination ordinance does not give anyone a defense for entering a restroom to harm or harass others,” Cooper wrote in an email.
She continued: “We learned from Houston that we have a long way to go in combatting prejudice against transgender people, and we know we need to focus much more on breaking down those stereotypes, in our work to both pass and defend sexual orientation and gender identity protections.”
But for now, there is simply no cohesive strategy from HRC — despite fundraising pitches that are based on a promise to prevail in the nondiscrimination fights — to deal with the bathroom issue.
Funding for LGBT groups has grown steadily since the recession in 2008, according to a Dec. 3 report by the Movement Advancement Project, which found those groups collectively only took a decline of less than 1% in 2015. Despite that decline, the report found, "Individual donor revenue grew 11% from 2013 to 2014.”
HRC reported $37 million in revenue in 2014, of which $28.8 million came from donations, fundraisers, grants, and other contributions. Tax records show those levels have remained essentially steady from the two years before.
After winning marriage in June, HRC announced their new priority was banning discrimination federally. “Here's the next major fight for the LGBT community,” said the subject line from one of the email blasts, while a July press release declared, "Historic Marriage Equality Ruling Generates Momentum for New Non-Discrimination Law.”
Their aim: Passing the Equality Act, which was introduced in Congress later that month. But as local versions of the same sort of law are repealed, while the bathroom chant gets louder, the Equality Act has has foundered in Congress without a single Republican co-sponsor — let alone a committee hearing.
As HRC's Dalton said by email, "These battles all over the country also underscore why we have to do everything in our power to mobilize the pro-equality vote in 2016. We want to see full federal equality for LGBT Americans, and the Equality Act won't be signed into law without an ally in the White House."
But it's equally hard to see how the Equality Act could get traction in Congress while similar laws are being repealed by voters at the local level — particularly Democratic districts represented by members of Congress who would need to push the bill. It’s also difficult to see how these local laws can be passed and upheld when the LGBT movement lacks a defense against the bathroom attack.
As Griffin himself point out, supporters give so that HRC can fight those very fights — and presumably, figure out how to win them.
“If our advocates and the people pushing for full LGBT rights don’t get their act together, and don’t have trans people out there destroying the myth, it’s going to keep on happening,” said Siperstein, the New Jersey activist.
“But if you know it’s going to be brought up, you need to be proactive,” she continued. “You have a trans face. You have a poster child. When you are attacked, you can’t run away and hide. Sometimes you have to attack first, you have to be flexible, you have to have a plan A, a plan B, and a plan C. You have to adjust. This is a war.”
Griffin acknowledged before the Houston election that “our opponents aren’t going away.”
“They are going to fight us tooth and nail in every single one of these battles,” he said. “We are fighting them in small towns and in big cities.”