On Tuesday, voters here will decide the fate of the Houston Equal Rights Ordinance, which bans a wide range of discrimination. It was passed by the city council in 2014 and will now be placed before voters to be upheld or repealed.
But there’s a hitch: Many Houstonians simply don’t think the ordinance is about discrimination.
“I haven’t heard it bans discrimination,” Cory Alters told BuzzFeed News as he waited for the bus on a blustery Friday afternoon. With four days remaining before the vote, Alters said he had only heard that the measure required letting men and transgender women into women’s bathrooms.
“Bathrooms are the hot-ticket item — that’s what everybody is talking about,” he said. “I don’t want girls in my bathroom, and girls don’t want guys in their bathroom.”
One block down Travis Street, 44-year old Donna L., who refused to give her full last name, said the same: “I heard people saying pedophiles would be going into restrooms. That is the main thing everybody is talking about. I hadn’t heard anything else.”
Of the roughly two dozen voters BuzzFeed News interviewed in Houston, about half believed the ordinance applied solely to granting men and transgender people access to public bathrooms. Roughly a quarter knew of the law’s wider scope banning discrimination. Another quarter knew nothing about it.
The vote comes at an especially critical moment for the LGBT movement. After winning marriage at the Supreme Court in June, leaders of top organizations vowed to use the wind at their backs to pass laws prohibiting discrimination in cities, states, and eventually the whole country. A bill in Congress, the Equality Act, was introduced in July but has stagnated without a single Republican co-sponsor.
Yet the fact is, rather than expand the number of jurisdictions with such laws, LGBT activists are simply trying to defend this law already on the books in Houston. So this election, in the country’s fourth-largest metropolis, will test the LGBT movement's ability to meet their recalibrated mission and gain momentum. Losing in Houston will suggest the LGBT movement has a steeper hill to climb now that it did with marriage equality.
John Crawford, 65, is a quintessential Houston voter for low-turnout, odd-year elections, which tend to skew senior.
“The equal rights ordinance?” the Uber driver said, making eye contact in the rear view mirror. “The only thing that I have heard is that it allows men who dress up like women going into the ladies room. I heard commercials that said it would increase crime. If a person woke up one day and said, ‘I identify as a woman,’ he could just go into the bathroom to see titties or booty.”
“What else could it do?” he asked.
Called HERO for short, the Houston Equal Rights Ordinance doesn’t directly address bathrooms. It bans discrimination on the basis of race, religion, national origin, sexual orientation, gender identity, and 10 other characteristics. Some of those classes already receive protections at the state and federal level. But with HERO in limbo while it’s on the ballot, gays, lesbians, bisexuals, and transgender people currently lack any discrimination protections in Houston — and covering LGBT people was a prime impetus for passing the law.
HERO covers jobs, housing, and in places of public accommodations — including hotels, restaurants, and public restrooms. As such, transgender women can’t be barred from women’s restrooms. That is the point of friction for critics, or, at least, has exposed an Achilles heel for them to attack.
Opponents latched onto the bathroom complaint when the city council passed HERO in May 2014, and they stuck with that message after the Texas Supreme Court unexpectedly ruled in July that the ordinance must be placed on the November ballot.
Now the group Campaign for Houston, has been pelting voters with a nearly singular message in ads, yard signs, and mailers: Prop. 1 would allow sexually predatory men into women’s restrooms. They dubbed it “the bathroom ordinance” and ran television commercials depicting a man trapping a little girl in a bathroom stall.
The saturation of that message — and the consistency with which it has been advanced — was perhaps nowhere more clear than when Texas Gov. Greg Abbott tweeted on Monday, “Vote NO on City of Houston Proposition 1. No men in women's bathrooms.”
The focus makes sense, given polling data. Robert Stein, a political science professor at Rice University who oversaw a poll by his college and the University of Houston that was released Oct. 11, told BuzzFeed News that he tested messages to gauge persuasiveness. He found that raising the bathroom issue was the most effective means to cool support for the law. It swung nearly 7% of voters to oppose the measure.
At the time, support for upholding HERO was ahead 43%-37%, with 20% of voters unsure or refusing to say how they would vote. But Stein said turnout was especially high in early voting, particularly among Republicans, who oppose HERO, and African-American voters, who tend to be more undecided. With those factors taken into account, Stein said Friday, “I think it suggests that the ordinance might be not be upheld.”
That framing by opponents of HERO, who are outspent more than three to one, is still winning the day on city streets. Not limited to Houston, either, bathroom concerns have dominated debates and derailed — or distracted — nondiscrimination policies the past year in Ohio, Florida, California, Arkansas, and Missouri.
In other Texas cities that ban discrimination based on gender identity and sexual orientation — plus roughly 200 cities and 17 states around the U.S. — there are no clear examples of the laws being abused for men to be inappropriate in restrooms. And predatory behavior in bathrooms remains illegal in all of those places, which undermines the argument.
But those facts don’t matter, politically. Whether the LGBT movement wants the conversation to be about bathrooms or not, it is.
The message is kryptonite for some voters and lawmakers. It’s clear, particularly in Houston, that LGBT advocacy leaders don’t have a cohesive strategy for inoculating voters from the attack or pivoting away. Sure, the bathroom myth appears divorced from reality, and there is a case for ignoring it. But given its virility, it could stand in the way of more cities and states backing nondiscrimination laws — a key part of the momentum LGBT advocates are looking to use in exerting pressure on Congress to pass the Equality Act.
If Houston upholds HERO, it will be because the unprecedented investments of cash and staff to defend it. The Human Rights Campaign has shipped 34 full-time employees from its Washington, D.C., headquarters to Houston (“I don’t think we have ever had a local or state battle where we have had 34 staffers on the ground,” said president Chad Griffin). The ACLU of Texas sacrificed its entire office to become the campaign’s headquarters, even tearing down a wall to expand for an influx of campaign workers (“It was like rabbits multiplying,” laughed Terri Burke, the group’s executive director).
Houston Unites, the campaign to uphold HERO, has largely avoided addressing the bathroom issue head-on. The campaign ran a commercial with retired police officer Ed Gonzalez pointing out that the bathroom predators would remain criminals under the law.
"If I understand, part is about picking the restroom you want...I am going to vote against it because of that."
Campaign manager Richard Carlbom didn’t say how much airtime they bought for that ad. But he stressed that while it’s useful to denounce misinformation, the campaign must give voters something to support. Most of the airtime has highlighted the positive: veterans, pastors, people of color, men, and women talking about how an equitable city is good for Houston.
But it’s not clear how well that’s resonating.
“I know it covers a lot of areas — veterans of course,” Sharome Robinson, a Houston Police Department officer told me while she waited for her bus near the agency’s downtown headquarters. “I’m for some of it, and against some of it. If I understand, part is about picking the restroom you want. I am a police officer, so males entering the restrooms, that does not sit well with me. It’s not legal now, but it still happens. People follow kids into bathrooms and assault them today. But if this passes, who would have the authority to stop them? If there is no longer any rule against it, who can question that person?”
“I am going to vote against it because of that reason,” she said. “All of the other good things go by the wayside.”
A SurveyUSA poll released October 15 showed HERO up by nine percentage points — 45 to 36.
Carlbom would not disclose his group’s own polling, but he said the margin has narrowed in recent weeks, as expected, as undecided voters make up their minds. “It’s absolutely a dead heat,” he said. “Tracking polls happen every night. They show it is going to be a very, very, very close race. It shows that, you know, Houstonians have a lot of anxiety about what the opposition has said and they are sorting through it.”
Burke, executive director of the ACLU of Texas, sat at her conference room table and reflected on how much they should rebut the bathroom message. “We hit it hard, but we weren’t going waste our precious dollars on talking about friggin’ bathrooms when it’s a lie. Do you know what a television commercial in Houston costs? I’ll tell ya — it’s costing us over $300,000 a week. You think we are going to spend $300,000 a week to keep talking about bathrooms?”
Still, she said, she wondered if activists should have tackled the bathroom message earlier. She recalled that right after the city council passed the ordinance in May 2014, she and her husband got a mailer that showed a man with a cape covering his face leaving a women’s restroom — it said this is what HERO would do.
“Where I would fault us is not having fought back in June of 2014,” said Burke, glancing at her communications director for a green light to keep talking. “I mean, start a public education campaign right then about how bogus that is. When given the opportunity, when we were asked, we certainly said it, but we didn’t launch a campaign. And I think we probably should have in retrospect.”
Arriving from Washington, D.C., on Wednesday, six days before the vote, Chad Griffin left the airport in time to meet donors for lunch. The president of the Human Rights Campaign, the country’s largest LGBT organization, Griffin flew in for his group’s final push, which entailed raising enough money to keep ads on the air.
“I am cautiously optimistic,” Griffin said. “These battles are tough, these battles are expensive, and, you know, our opponents don’t fight these battles on the playing field of truth. They choose to avoid any sort of public discussion or public debate and push misleading ads, lies, the most transphobic ads I’ve perhaps ever seen to the voters — by the way, in the last 10 days, because then it is very difficult to come back and challenge that.” Instead of rebutting the ads or changing tack, the strategy seems to be just to outgun that opposition with more of the ads they’ve already made.
Griffin was set to introduce Sally Field at a private fundraiser in the lush neighborhood of Southampton that evening, but first he toured the campaign headquarters. It started with a briefing like something from a reality TV show about campaigns:
“What can we do, Richard?” Griffin asked Carlbom, the campaign manager.
“More money?” said Carlbom.
Griffin: “What is the gap that we need to raise?”
Carlbom: “Honestly, it’s $180,000.”
Griffin: “Hopefully tonight.”
Carlbom: “I sheepishly implore you to do more.”
Griffin’s group filed its own local political action committee in Houston, which raises money from donors and hands over the proceeds to Houston Unites. “We’ll have over $600,000 into this campaign, maybe $650,000,” Griffin said. That cash also accounts for the nearly three dozen HRC staff shipped into Houston, and contributes to a total budget that had surpassed $3 million on Wednesday and was on its way to $4 million by Election Day.
In contrast, their opposition has reported a fraction of that money. The two opposition PACs are both named Campaigns for Houston. One is filed with the state and another with the city, and they have reported combined expenditures of nearly $900,000, according to BuzzFeed News’s records requests and online campaign finance reports.
Griffin walked downstairs into the campaign hive. HRC brought in their own video crew, which recorded Griffin meeting staffers in red HERO t-shirts. Coffee cups and empty to-go containers mingled on folding tables with tape, pens, string, and clip boards. Volunteers with headsets attached to their cell phones pored over voters rolls and asked people how they plan to vote (definitely vote yes was marked with a “Y,” lean no “L,” not voting “V”).
Griffin circulated among the crew, who were exuberant about taking selfies with him.
Forty-five full-time campaign staffers and untold number of volunteers were coming and going, making calls, departing for neighborhood canvasses. At one point, Carlbom said, their crew drove 50 people to an early voting location.
HRC chief communications director Olivia Dalton flashed her phone in a hallway. “We just got this video of Michael Sam.” The out gay player, the first to be drafted into the NFL — he is no longer in the league — was endorsing Prop. 1 in a video. “We’ll put it out tomorrow.”
These are the standard instruments of major campaigns — ads, calls, door-knocking, van pools, videos — yet this is an exceptionally complex, well-funded, expertise-packed effort for a ballot measure in a city. Especially so when considering the Texas Supreme Court only issued the ruling that began the campaign two months earlier. It’s a testament to just how difficult, and expensive, passing a nondiscrimination ordinance is with a public vote.
“This obviously was unfortunate, and not something that anyone thought would happen,” Griffin said, referring to defending a law that was already on the books. For its opponents, “in many ways, with the success of 50-state marriage ruling, I actually think that for some of these folks it even further motivates their base.”
Even if HERO passes, the size of the operation required to hold on to a nondiscrimination law in Houston raises an obvious question about whether it’s feasible to do this across the entire country. The opposition’s message is so potent that beating it through sheer force is expensive — and the LGBT movement appears largely at a loss for how to best combat it. Many states don’t offer a ballot initiative process. And their legislatures and governors’ mansions are mostly held by Republicans, most of whom remain hostile to LGBT legislation. And, the federal options for a nationwide solutions are limited and not as clean, so to say, as a resolution as the marriage cases provided.
“Houston is important because of its size, it’s important of its location, it’s important because it was one of the last major American cities to get these protections, and it’s important because our opponents are coming with a hateful and misleading campaign to try to take it away,” said Griffin.
Then the crowded office cleared out and everyone bee-lined to a new, classically designed house in Houston’s lush Southampton neighborhood.
Inside the front door of the house, where Field was about to speak, I was looking for the bathroom. Someone said it was right in front of me, but I was befuddled until a woman piped up, “You have to push on the bookcase.” There was a little handle to swing the bookcase inward to reveal a bathroom. The books, a ceramic bowl, and an ornamental bird were glued to the shelves so they wouldn’t tumble off. This spy-movie-style secret door — intentionally or not — had the effect of allowing guests at the upscale fundraiser to travel between the foyer and parlor without being forced to think about a toilet.
Bathrooms were the elephant in this house — and yet they went unspoken.
“I have a tendency to get teary when I talk about this stuff because it’s so important to me,” Field said.
“Really the whole country is listening,” she said. “They are listening. And I know the really good and productive and loving people are listening, and unfortunately those evil-minded people are also listening — and hoping that we fail.”
“We are definitively following that,” Jim Minnery, president of Alaska Family Action, said when asked about Houston. “We would like to see them defeat that measure because it is the same kind of thing that we have up here.”
Minnery is referring to an LGBT nondiscrimination ordinance passed in September by the Anchorage Assembly. Minnery said he and faith groups in Anchorage are running polls on the ordinance and trying to decide whether to mount a referendum campaign to overturn it.
He has won on this exact issue before. Christian conservatives defeated a ballot measure to ban LGBT discrimination in Anchorage by a wide margin in 2012 — even though they were heavily outspent. “It’s not the right-wing radical freaks versus progressives,” he said. “Obviously, for us to get 60% of the vote, roughly, we had to pull folks from the center and left to come to our side, and they did.”
He said that such laws are not necessary, for one, because discrimination against LGBT people is not a problem. In contrast, those laws themselves are a problem, infringing on the religious freedom of schools and businesses.
As Minnery and his associates decide whether to launch a referendum, he said, “We keep up to speed” on what’s happening in Houston. “We will learn from the mistakes they made and from the good things they have done.” Asked about the tactic in Houston to focus almost singularly on bathrooms, he said, “Well it’s a pretty good strategy in my view. It’s hard to imagine anyone being happy with an adult man walking into a girls’ bathroom.”
BuzzFeed News reached out to Campaign for Houston many times to ask about the basis for their ads about bathrooms and their concerns with the Houston Equal Rights Ordinance, but did not receive a response.
However, Rev. Kendall Baker, who recorded two of the radio ads for Campaign for Houston and is running for a spot on city council, spoke to BuzzFeed News. Kendall stood by his commercial that claimed HERO would “allow perverted men to freely enter women’s bathrooms.”
“When you mention gender identity or gender expression in public accommodations, that is a dangerous situation,” he said in a phone call. “It gives access to a criminal that says, ‘I feel like a woman today, so I have a legal right to enter into a women’s restroom with women and children.’”
Asked if he could cite any examples of nondiscrimination laws in Texas or anywhere in the U.S. leading men to prey in women in bathrooms, he said, “Yes, and if you provide your email, I’ll give you at least 100 examples.”
Baker did not reply to emails asking for examples.
But as proof of the problem, opponents of HERO have cited an September incident at a gender-neutral washroom at University of Toronto, where two female students reported seeing a cell phone reach over shower stall dividers. There is no known suspect, according to media reports. (BuzzFeed News has requested information from the Toronto police.)
Jared Woodfill, the spokesman for Campaign for Houston, has also promoted an incident involving a transgender woman who was cited in 2012 for using a women’s restroom at a county-run hospital in Dallas after a patient complained. Twenty-two years earlier, the transgender woman had been convicted of a sexually assaulting two teenage girls, but that criminal history was reportedly not a factor in the restroom incident and there were no signs the woman had done anything wrong inside the hospital restroom.
Baker, who worked for the city of Houston for 18 years, spent most of interview with BuzzFeed News expressing animosity toward Mayor Annise Parker, who first introduced HERO to the city council. Mayor Parker — who is a lesbian — wants to leave a legacy for LGBT people who donated to her campaign, he said, and she slipped language about gender identity into HERO “under the guise of civil rights.”
“She caused a great strife in the city of Houston — a godly city, a blessed city — and caused division among the brotherly,” said Baker.
Janice Evans, the chief policy officer for Mayor Parker, dismissed Baker and his cohorts as marginal players. “The opposition is small and has been at this for 40 years,” she said. “Their entire pitch is based on whipping up fear about a misunderstood minority. They have demonized them and flat-out lied about consequences of the ordinance.”
Most discrimination complaints in Houston concern race — 56% — while only 5% concern LGBT discrimination.
Evans pointed to the prominent supporters: The Greater Houston Partnership, the NAACP, the ACLU, the Hispanic Chamber of Commerce, President Obama, Vice President Joe Biden, Secretary Hillary Clinton, and former San Antonio mayor Julian Castro.
The attack on “men in women’s bathrooms” was deployed because “most people don’t personally know a transgender person — at least that they know of,” Evans said. “That lack of familiarity means that it can be easy for people to have questions, or concerns, or made to be afraid. The fact that they are facing this attack affirms the need for this ordinance.”
BuzzFeed News asked Baker if he would support HERO if it did not cover gender identity, thereby removing the bathroom issue. He said he would still oppose it: “There has never been discrimination widespread or notably against the LGBT community in Houston.”
Data in Houston seem to bear this out. The city continues to receive complaints of discrimination that fall under HERO’s scope, even while the ordinance remains in limbo. According to city records, most complaints are regarding racial discrimination — 56% — while only 5% concern LGBT discrimination, according to city records from May 28, 2014, to Sept. 2, 2015.
Cases of LGBT discrimination are almost certainly underreported. And without question, discrimination against transgender people is common throughout the country.
But are there examples of people in Houston who were discriminated against for being gay, lesbian, bi, or trans? I asked Houston Unites, the ACLU of Texas, and the HRC for examples, and the groups cited no instances or names of individuals BuzzFeed News could interview. They instead pointed to the high rates of discrimination against people of color.
Griffin said that “you see folks who end up in privileged places, who are very lucky, and don’t have to worry about discrimination in their daily lives. That is not the case for the majority of LGBT folks living in this country today. It’s just not.”
However, the challenge in pinpointing these stories could present a challenge for rallying the LGBT base — in Houston and beyond. Marriage equality offered a clear benefit to couples who were obviously denied a set rights; a nondiscrimination law is more like fighting for an insurance policy — to cover an incident that is difficult to nail down.
All week, Houston Unites was expecting a low turnout — about 200,000 voters. But as early voting ended Friday evening, Stein, the political science professor at Rice, said early voting was higher than expected. That turnout was especially pronounced in precincts with more Republican and African-American voters.
Stein said he projected an actual turnout around 240,000 — and that the larger forecast is “not good for HERO.”
More Republicans in the electorate are a detriment to the law because they oppose it and can’t be budged, Stein said. African-American voters, on the other hand, raised an opportunity that Stein thinks the campaign bungled.
Polling shows “it’s absolutely a dead heat.”
Stein’s research found that more African-Americans voters, especially women, were undecided about the law and more likely to oppose it when told it would allow men in women’s restrooms. But when they heard messages that repealing HERO could bring negative economic consequences, the same black women shifted to supporting the ordinance.
In particular, telling voters that repealing HERO could spur boycotts of hotels and the convention center, or that the Super Bowl and NCAA could withdraw games from the city, was nearly twice as effective as the bathroom argument.
But Stein said he has seen little of those messages from the campaign. Indeed, Houston Unites commercials have overwhelmingly focused on how the law promotes diversity and has focused little on economic arguments. But other matters, like talking about the law’s broad scope, tested so poorly at swaying movable voters in sample groups that he concluded they “didn’t work. You were preaching to the choir.”
Carlbom said his campaigns ads “give the voters something to really chew on and to really commit themselves to emotionally in support of this ordinance. One example is our ad that just finished running, which highlights the fact that this impacts veterans. That is a very effective ad. If they see a veteran can be impacted by this, then maybe as a Latina woman, or maybe as an African-American man, or maybe as Muslim or Jew or pregnant woman, they find their own reason and their own understanding of why this is important.”
Carlbom said his internal polls show that voters are “working through their anxiety and understanding what’s really at stake.” As the election approaches, he said, “they are coming back to us.”
Polls are open Tuesday from 7 a.m. to 7 p.m.