Top LGBT Leaders Are Divided Over Compromising On The Bathroom Fight

Conservatives have blocked LGBT nondiscrimination bills by claiming transgender people pose a threat in women’s restrooms. How to break the logjam? Some LGBT leaders say it’s time to support bills that cover housing and employment, but not public accommodations — and largely avoid the bathroom issue. The second article in a BuzzFeed News series on transgender rights in America.

On Aug. 1, two dozen of the country’s top LGBT activists held an invitation-only phone call to hash out a disagreement that had pitted them into two camps.

After winning marriage equality in 2015, many of them envisioned passing LGBT nondiscrimination laws nationwide — but they hit roadblocks. Conservatives have argued those policies would let transgender people prey on girls in bathrooms and force Christians to sell wedding cakes to gay couples. The bills foundered in state legislatures and Congress. By August, the leaders were fractured over how to break the logjam.

On the 90-minute call, one faction argued they could make gains with Republicans by accepting a compromise. In particular, several supported a bill in Pennsylvania that would ban LGBT discrimination in workplaces and housing — but not in public places, like restaurants and stores. Many on the call believe this could emerge as a model for other swing states where they’ve hit barricades — namely in Ohio, Florida, and Arizona.

By dropping public accommodations from the bills, they would mostly avoid the bathroom issue and religious objections. Transgender people, like LGB people, would be covered in housing and employment. But such a deal would allow, for example, business owners to reject gay customers and require transgender women to use male facilities.

That sort of concession breaks from years of consensus among LGBT leaders, who have tacitly agreed that civil rights bills in state legislatures or Congress should be all-inclusive. Anything less, the orthodoxy has gone, could betray transgender people who bear the brunt of discrimination in public.

This is, in a sense, a fight for the future of the LGBT movement and even a battle over whether organizations can remain fully funded.

One key player is the Gill Foundation, which gave more than $6.5 million to LGBT causes in 2014, the most recent year for which it has disclosed financial records. Gill and several groups that receive its grants, including Freedom for All Americans and the National Center for Transgender Equality, contend this sort of compromise may be their only shot of winning civil rights for millions of LGBT people at the state level in the next decade, even if those gains are incomplete. Leaders of those organizations say they can return to these legislatures in the future to finish the job of passing public accommodations when the issue becomes more palatable.

“Lambda Legal really sees the willingness to exclude public accommodations as a kind of 2016 sellout."

But groups across the field, including the ACLU and the Human Rights Campaign, have argued the short-term gain approach could amount to entering a box canyon. It may take years to pass laws that provide public protections in the future — if ever. And leaving them out may even send a message that discrimination in public is acceptable.

The ACLU sent a blunt letter to Pennsylvania lawmakers and organizations on June 10 detailing their objections to the compromise bill.

“It will not be lost on many in the advocacy and activist communities, as well as the LGBT-media, that dropping public accommodations now, in the midst of the current in-state and national conversation surrounding transgender people and restrooms/locker rooms, is compromising on critical protections because they are controversial," said the memo obtained by BuzzFeed News.

The group added that passing the bill could show "public accommodations for LGBT people is politically toxic,” and “perhaps most troubling, that LGBT advocates are willing to compromise away public accommodations protections that are perhaps most acutely needed by the transgender community.”

The fallout from this letter led the Gill Foundation, which supports the compromise, to tell the ACLU not to apply for another grant. And in more than a dozen interviews with BuzzFeed News, several normally outspoken activists talked about the divide in hushed tones — or they refused to speak at all. The ACLU declined to provide comment for this article in any capacity.

Matt McTighe, the executive director of Freedom for All Americans, which receives substantial funding from the Gill Foundation, acknowledged that passing one of the bills could create a domino effect. “Legislators look across state lines to see what is happening in other places, and if we do pass this legislation in Pennsylvania, then I would expect other states would at least consider the possibility of doing something similar.”

But he emphasized in a phone call with BuzzFeed News that LGBT advocates start by advocating for comprehensive bills — the compromise bills come from the lawmakers themselves. Then groups like his must decide whether to support them.

“Are you going to dictate from on high that Pennsylvania or Florida can’t even entertain the prospect of a compromise?” said McTighe, explaining why his group supported the Pennsylvania measure and why it would support similar legislation in other states if that is their only option. “We’re not going to preemptively slam the door in their face.”

He pointed out that the last time any state passed a fully comprehensive LGBT nondiscrimination law was when Iowa and Oregon did so 2007. Colorado passed the laws in two stages — in 2007 and 2008. The 32 states still lacking such policies are predominantly controlled by Republicans. Accepting a deal, McTighe said, “is better than saying we are not going to do anything for 10 years while we just figure this out.” The trick is finding a state capital amenable to any sort of LGBT bill.

“It’s a pretty small list of states,” he said, ticking through Pennsylvania, Florida, Ohio, and Arizona. “Those are the states where I think we have the best chance of doing something.”

The executive director of Lambda Legal, Rachel Tiven, told BuzzFeed News that this approach was a “sellout” and nonstarter.

“It’s about whether queer people can participate in public life,” said Tiven, whose group also receives funding from the Gill Foundation but disagrees on this issue. “Can we go out in public at all? Can we go to the movie theater? Can we go to the shopping mall? Because our opponents would like to make anyone who is too queer or gender nonconforming uncomfortable — they would like us to just stay home.”

Indeed, Sen. Ted Cruz said during his presidential campaign that transgender people could simply use the restroom at home.

“Lambda Legal really sees the willingness to exclude public accommodations as a kind of 2016 sellout,” Tiven said.

She added that accepting partial protections would establish a new “floor” for what LGBT people will tolerate: “If you accept a lower floor, you’re stuck with it nationally.”

The bill in Pennsylvania is effectively dead after ACLU’s advocacy against it. And that offing came at a price — the Gill Foundation informed the ACLU’s LGBT project director, James Esseks, that he should not reapply for funding.

“It doesn’t make sense to have our philanthropic dollars being used to fund an effort at odds with our overall strategy to protect as many people as quickly as possible,” Jeffrey W. Schneider, a spokesman for the Gill Foundation and the Gill Action Fund, told BuzzFeed News in an email, explaining why the ACLU was asked to not apply for another grant. Neither party would disclose how much money was at stake; Gill declined to share financial records for 2015 or 2016.

Like every other LGBT organization contacted for this article, Gill supports comprehensive nondiscrimination policies wherever they can be passed, Schneider stressed, pointing out that they must pursue what’s viable in each state. “In Pennsylvania, with a Republican controlled legislature, we believe that a pragmatic approach that can start protecting LGBT people in real ways right now is to pass laws on housing and employment while continuing to fight for public accommodations in the future.”

While the dispute was between departments of Gill and the ACLU that are involved in lobbying, the funds the Gill Foundation withheld is for the ACLU’s non-lobbying work. “ACLU, through its representatives, has made it clear to leadership of both our 501(c)(3) and separately to our political operation that we are not currently in sync,” Schneider explained.

Sources told BuzzFeed News that other groups were told their funding could be in jeopardy if they disagree with Gill on this issue, too. Schneider did not deny that. He said, “We’ve had many grantees cycle off and on based on alignment of goals.” (Lambda Legal receives money from Gill Foundation and has not had funding issues relating to the disagreement over strategy, the group told BuzzFeed News.)

When the ACLU pressed its view in June, the group noted that existing federal law, as interpreted by several federal agencies, protects LGBT people in housing and employment — finding that sex discrimination bans protect against sexual orientation and gender identity discrimination.

The ACLU argued that passing an incomplete bill in a state legislature could undermine their legal strategies to expand protections under existing laws. In addition, the ACLU said advocates should focus on education about transgender people to quell the bathroom hysteria.

Gill Action Fund and other groups sent a six-page reply to the ACLU on June 22 that argued their movement faces a stark choice. “There is much less chance of making any progress legislatively in the near future if we demand passage of protection in every area at one time,” the memo said about the dynamics in Pennsylvania. “At this time, our choice is not between making incomplete progress or making complete progress. It is between making incomplete progress or no progress at all.”

The memo also noted that while some courts have agreed with the federal agencies’ interpretations of existing law, others haven’t. And the Supreme Court is yet to weigh in on the question.

Gill and the other groups cited Massachusetts as a case study in effective incrementalism. Lawmakers enacted nondiscrimination laws in 1989 and 2011, but only passed a bill protecting transgender people in public accommodations this year. The memo called this a “capstone.”

But this month, a conservative activist group succeeded in putting that law on the ballot, arguing it exposes girls in bathrooms to “sexual predators who claim ‘confusion’ about their gender as a cover for their evil intentions.” It will go before voters in 2018 — drawing out the debate, requiring yet another campaign, and leaving the law’s future uncertain.

Sarah Warbelow, the legal director of the Human Rights Campaign, told BuzzFeed News that as a general matter, “I am very concerned that it would take an extraordinary period of time to come back and pass a law concerning public accommodations alone.”

For example, she said, when Congress passed the Civil Rights Act of 1964, portions of the law banning sex discrimination did not cover public accommodations — and Congress has never patched that hole. For LGBT people, Warbelow said, “This is not an issue that is going to magically go away on its own, and it’s an area where people are experiencing very real discrimination.”

Passing laws with partial protections, she worries, could inadvertently send a message that states can further restrict LGBT rights in public.

If anything, the current tide is moving toward restricting LGBT rights. At least 17 bills were filed in state legislatures this year targeting transgender people, particularly their use of bathrooms. While only two passed, the focus on anti-transgender bills — as opposed to nondiscrimination bills — is a sign of the hostile climate that LGBT advocates are facing in many states.

“People are talking about bathrooms; people are talking about wedding-related services,” she said. “This is part of the overall public narrative and we need to be addressing that head on.”

“This is not timidity. This is about moving the ball as fast as you can.”

But one of the country’s leading transgender advocates, Mara Keisling, the executive director of the National Center for Transgender Equality, says that if they want to help transgender people in Pennsylvania, they need to embrace the protections transgender people can get in housing and employment.

“Incrementalism is how policy gets done while other people are whining about incrementalism,” she told BuzzFeed News. “We have made it an article faith over the past few years that if a bill lacks public accommodations, it’s useless. That’s not true.”

She said that was exactly the path employed by lawmakers in California, Nevada, and Hawaii — states where legislatures passed bills that lacked public accommodations or gender identity, then patched the holes years later. Those patches were passed between 2005 and 2011, before marriage and before conservatives pressed bathrooms and religious freedom as their most potent arguments.

More recently, Utah passed an LGBT nondiscrimination bill in 2015 that lacks public accommodations, though many advocates described Utah’s situation as unique. Among other things, the state’s existing civil rights law did not cover public accommodations to begin with — including discrimination based on race or religion — and that law was essentially amended to include gender identity and sexual orientation.

“I am not timid,” Keisling said of this approach. “This is not timidity. This is about moving the ball as fast as you can.”

The last time LGBT leaders were split this dramatically, it was 2007, and Congress was considering the Employment Nondiscrimination Act. As its name suggests, the bill dealt with workplaces, but it left out coverage for transgender people entirely. In that fight, the Human Rights Campaign backed the bill — arguing lawmakers were leading the way on the bill, so they should accept the compromise. The internecine battle left scars about HRC’s commitment to transgender equality. This time around, HRC is firmly rejecting any sort of compromise.

Warbelow hopes this latest strategy battle “is a blip in the road. None of our disagreements as a movement have ever shut down conversation, and we still find ways to work with one another. We will figure this out.”

Yet, with the bill in Pennsylvania effectively dead in 2016, the question for many LGBT leaders is how the dispute bubbles up next year.

In Ohio, LGBT activists shut down a bill this session that left out transgender people. However, Grant Stancliff, a spokesperson for Equality Ohio, told BuzzFeed News that a bill that includes transgender people, yet leaves out public accommodations, may be an appealing compromise to some activists.

“We have heard from transgender people that the biggest wound is in housing and employment,” he said. “So if we were able to secure that, the material benefit for a lot of people's lives would be pretty big.”

Yet he acknowledged difficulty they faced in Cleveland, where public accommodations for transgender people had to be passed as a separate ordinance three years later because “the only issue that people talk about there is bathrooms.”

So what would happen if the state legislature in Ohio took up a bill like the one in Pennsylvania this year? “Those are waters that we haven’t navigated,” said Stancliff. “In conversations within the community, people seem to be pretty split on that."

The ACLU's June 10 memo:

The response from several groups:

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