The next big culture war battle is about to be waged in an unlikely place: the restroom. After many years, Congress may finally have the votes to pass the Employment Non-Discrimination Act (ENDA). The measure, which the Obama administration views as key to advancing gay rights, would ban workplace discrimination against gays, lesbians, and transgendered people. But Christian right groups are fighting the legislation—on the grounds that it would force businesses to allow transgendered and "transitioning" men and women to use opposite-sex restrooms or face lawsuits from the Equal Employment Opportunity Commission.
The Traditional Values Coalition, a major foe of ENDA, has written a lengthy report on the potential dangers of the legislation, and the bathroom crisis is high on the list. As proof of the coming bathroom integration, it cites a Seattle incident in which two women who were taking male hormones were thrown out of a men's room at the Washington convention center. The women were staging a "pee-in" as part of a Gender Odyssey Conference, but TVC sees "she-men" invading the hallowed confines of men's restrooms everywhere should ENDA pass.
In talking points issued to ENDA opponents, Liberty Counsel, the conservative public interest firm associated with Jerry Falwell's Liberty University, warns:
ENDA mandates that employers give access to shared facilities, such as restrooms and other similar facilities for those who are of the same sex, but have an opposite gender identity (i.e. a male identifying as female), or of those who have notified their employer of an ongoing gender transition (i.e. a male transitioning to a female). Those employees would be allowed to share restrooms and other similar facilities with members of the opposite sex.
Peter LaBarbera, president of the anti-gay group Americans for Truth, has called ENDA the "Transgendered Bathrooms for Business" bill. He frets on his website that women will be forced to share facilities with "a big-boned man claiming to be 'transitioning' to 'womanhood.'" He writes, "Biologically-born ladies, beware!"
Conservative activists warn that by pushing ENDA, the Obama administration is embracing not just the homosexual agenda, but that of liberal atheist George Soros. His Open Society Institute helped fund a 2005 study by the Transgender Law Center called "Peeing in Peace: A Resource Guide for Transgender Activists and Allies," which argued for an end to the men's-only room. The study highlights the fact that some transgendered people have been fired because of issues related to bathroom use. By adding both "sexual orientation" and "gender identity" to the language in federal anti-discrimination laws, ENDA would protect them, much to the religious right's chagrin.
Potty paranoia is the latest attempt by social conservatives to fight the march of gay rights promoted by the Obama administration. They launched a similarly hysterical attack on federal hate crimes legislation that extended protection to gays and lesbians. Conservative groups painted the bill as an attack on religious liberty and free speech and raised a parade of hypothetical horrors that might befall the country if it passed. Among other things, Christian right groups claimed, the law would send pastors to prison for preaching against homosexuality.
The bill passed anyway, leaving conservative Christians feeling as if they were under siege. But perhaps even more than the hate crimes bill, ENDA scares conservatives because they see it as the beginning of the end. If it passes, it will make it easier to eliminate other anti-gay legislation such as the Defense of Marriage Act and the ban on gays in the military. In a September speech, John Berry, the openly gay director of the Office of Personnel Management, fueled conservatives' concern that ENDA is a Trojan horse for gay rights: "If we can get ENDA enacted and signed into law, it is only a matter of time before all the rest happens. It is the keystone that holds up the whole bunch, and so we need to focus our energies and attention there."
If ENDA passes, it could eventually be enforced in part by Chai Feldblum, who drafted the legislation and whom Obama has nominated to a seat on the EEOC. A Georgetown law professor, Feldblum has argued passionately that gay sex is not only normal, but is morally equivalent to straight sex, a view that doesn't go down well with the Moral Majority types. Her views on marriage and sexuality are so liberal that the Family Research Council has claimed she supports polygamy. (She actually supports government recognition and support of pretty much any intimate relationship, sexual or not, though at her confirmation hearing, she said she did not support polygamy.)
For all their fearmongering, conservatives aren't winning many converts in their fight against gay-rights legislation. Feldblum sailed through her confirmation hearing with little resistance from Republicans and is likely to be confirmed by the full Senate this week. The hate crimes bill passed the Senate 68-to-29. Obama maintains that he intends to end the "don't ask, don't tell" policy that prevents gays from serving in the military. And it looks likely that ENDA—a version of which passed by the House in 2007 but died in the Senate after veto threats from George W. Bush—finally has the support to become law.
That's because a lot has changed since the law was first drafted back in 1994. A number of states already have laws protecting gays and lesbians from workplace discrimination. Focus on the Family circulated a number of alleged abominations those laws have created, the worst being a case in which a California company was sued and paid out more than $1 million for failing to grant a promotion to a man who came to work dressed as a woman. When Family Research Council president Tony Perkins testified against the bill in September, he pointed out that in the first 18 months after Oregon's sexual orientation nondiscrimination law went into effect, only 62 complaints were filed—2 percent of all employment discrimination complaints.
Perkins argued that the stats showed the law wasn't needed. But the numbers also make it hard for people to get too worked up over the possibility of a similar federal statute, even one that contains scary potty equality provisions. Unless they happen to be in the Castro or DC's DuPont Circle, the odds that most people will run into a drag queen in the ladies' room are about the same as getting a foot tap from Larry Craig (which members of Congress have apparently been risking for years). And such an encounter would hardly justify depriving a whole class of people the right to be treated fairly in the workplace. Congress, it seems, is starting to understand that.