Kelly Jenkins earned her license to teach middle school science earlier this year, but decided not to apply to teach her own classroom in part because she’s wary of the outcome of Ballot Question No. 3.
“If this law gets repealed and I go somewhere with my students, I’m concerned I could be discriminated against in front of them,” she explained.
Jenkins, a teacher’s assistant at Wellesley Middle School, is a transgender woman. Massachusetts voters on Nov. 6 will be asked whether to uphold a 2016 law that prohibits discrimination against transgender people, including Jenkins, who use places of public accommodation.
A “yes” vote means the law remains and transgender people will continue to be legally protected against discrimination in public places, including convenience stores and bathrooms. A “no” vote means the law is repealed and the legal protection is eliminated.
Public accommodations include hotels, stores, restaurants and movie theaters. But debate on the issue typically focuses on bathrooms and locker rooms.
Keep Massachusetts Safe, the ballot committee in support of repeal, has focused its campaign on the bathroom issue, arguing current law violates privacy and security, especially among women.
“The law violates the privacy and safety of women by allowing any man identifying as a woman, including convicted sex offenders, to share women’s facilities,” wrote Debby Dugan of Keep Massachusetts Safe in an argument filed with the state.
Freedom for All Massachusetts, a ballot committee in support of upholding the law, argues it has given transgender people freedom to live their lives knowing they have some legal authority to fight discrimination.
“Before the law, transgender people were living their lives under a cloud of fear that at any turn they could be harassed and discriminated against and the law wouldn’t have their back,” said Matt Wilder, Freedom for All Massachusetts spokesman. “At its core, this is about treating people how we would all want to be treated, which is with dignity and respect.”
Keep Massachusetts Safe is funded largely by the Massachusetts Family Institute, a Woburn-based nonprofit that supports family and Judeo-Christian values and opposes same-sex marriage, abortion and premarital sex, according to its website.
The ballot committee has raised $338,623 and spent most of it on advertising, including one featuring a man peeping on a woman in a locker room.
“Any man who says he is a woman can enter a women's locker room, dressing room or bathroom at any time; even convicted sex offenders," says a narrator, referring to what’s allowed under the 2016 law.
When asked for examples of such events happening as a result of the new law, a spokeswoman pointed to three separate instances involving men being accused of taking photos or video of women in public places within the last two years.
“These are examples of men entering women’s spaces and because of the law these women had no recourse to have them removed,” wrote spokeswoman Yvette Ollada in an email.
But the argument and examples fall short with proponents of the law, who argue its language does not -- by any means -- protect illicit behavior.
“The law does not protect anyone who engages in criminal activity in those spaces,” Wilder said. “If someone does commit a crime, or uses this law for improper purposes, they will be arrested and charged as they should be.”
According to local news reports, the men in the three examples provided by Ollada were arrested and charged, and there was no immediate evidence to suggest the 2016 law was the impetus for their actions. One example involved a Billerica man, but happened in Woonsocket, Rhode Island, where the Massachusetts law does not apply. When asked about it, Ollada provided the following explanation.
“These are examples in New England, so we call them local examples,” she wrote.
In September, the Williams Institute at UCLA School of Law released a study assessing the validity of claims that gender-identity protections lead to private and safety violations in restrooms. The study, conducted in Massachusetts, concluded such protections do not affect the number or frequency of such criminal incidents.
“Opponents of public accommodation laws that include gender identity protections often claim that the laws leave women and children vulnerable to attack in public restrooms,” wrote lead author Amira Hasenbush. “But this study provides evidence that these incidents are rare and unrelated to the laws.”
In the realm of public opinion, most voters appear to support upholding the existing law, although many seem confused.
An Oct. 10 poll by the University of Massachusetts Lowell found 74 percent of likely voters opposed repealing the existing law. But pollsters noted some confusion.
“Nearly a quarter of respondents gave inconsistent answers on their views when asked about the ballot question and whether transgender individuals should be required to use restrooms corresponding with their gender identity,” said Joshua Dyck, co-director of the Center for Public Opinion. “When it comes to Question 3, there is still a lot of confusion among voters as to what it means and what it will do.”
Likewise, a September poll by WBUR and the The MassInc Polling Group found 71 percent of respondents supported upholding the law. But when asked specifically whether, “transgender people should be allowed to use public accommodations consistent with their gender identities, or not?” the number in support fell slightly to 68 percent.
Freedom for All Massachusetts, the ballot committee in support, has easily outraised and outspent Keep Massachusetts Safe. The committee has raised $3.3 million and spent about $2 million, mostly on advertising. Its largest donors include the Freedom Massachusetts Education Fund, which advocates for transgender rights, and the American Civil Liberties Union, according to campaign finance reports. Wilder says the Bay State ballot initiative has also sparked interest in other states.
“Massachusetts is very much at the forefront of transgender equality at this moment,” he said. “This isn’t just critical to Massachusetts, but also to transgender people and those that love them all across the country.”
For Jenkins, who moved from Tennessee to Massachusetts because the law here better protects transgender people, the ballot initiative is deeply personal and ultimately unsettling.
“The scary part to me is that a person gets to go in a polling booth and decide whether I can go into a restaurant and be asked to leave just because I’m transgender,” Jenkins said. “I don’t understand how that’s possible.”
Eli Sherman is an investigative and in-depth reporter at Wicked Local and GateHouse Media. Email him at esherman@wickedlocal.com, or follow him on Twitter @Eli_Sherman.