Anti-transgender bathroom bills are getting flushed. And it’s not just fear of losing money that’s motivating red states to pull the toilet handle.
With the exception of North Carolina—which as of Tuesday was still clinging to HB2 despite reported pressure from the NCAA to repeal the legislation or lose championship events through the spring of 2022—legislation that restricts restroom use by birth certificate or birth-assigned gender has been “floundering,” as a February Associated Press report put it. At that point, Virginia, South Dakota, and Wyoming had already dumped their 2017 “bathroom bills.”That trend has only accelerated in the last month: Last week, a “bathroom bill” in Tennessee didn’t even make it out of committee.
This Monday, a Montana legislative panel effectively killed a bill calling for a statewide vote on the transgender bathroom issue, as AP reported. (Republicans are in the majority in the Montana state legislature but the Governor, Steve Bullock, is a Democrat.)
On Tuesday, Texas state representative and Republican House Speaker Joe Straus stopped other representatives from trying to bring the controversial Senate-approved “bathroom bill” SB6 to the floor as an amendment to other unrelated measures, as KTBC reported. Without the support of Straus, who has said that he’s “not a fan of the bill,” it seems unlikely that SB6 will become law.
Theoretically, though, “bathroom bills” should be a slam dunk for red states with Republican governors and GOP-controlled legislatures. The RNC has encouraged states to pass these bills, the Trump White House has effectively withdrawn the federal government from the fight over them, and polling suggests that the majority of Republican voters support them.By now, however, the wrench in the gears is obvious: The fear of economic reprisal—a new AP analysis estimated that HB2 would cost North Carolina $3.76 billion over the next twelve years—has complicated the calculus behind “bathroom bill” decisions.
But while it’s clear that the financial argument might be the most effective way to persuade GOP-controlled legislatures not to spend time on anti-transgender legislation, it’s far from the only tactic that has been taking hold—it’s just the easiest one to quantify. The potentially devastating impact of these bills on transgender people themselves can no longer be ignored.
“I think when [North Carolina] started HB2, the legislators probably thought, ‘Oh, those trans people. There’s probably, like, four of them and they don’t have any friends and they’re not going to have any political power,’” Mara Keisling, executive director of the National Center for Transgender Equality told The Daily Beast in a phone interview “And then we showed them political power.”
According to Keisling, the failure of bathroom bills over the last year can be attributed to factors like the economic impact and an emerging frustration with lawmakers who waste time arguing about transgender people when there are more pressing issues on the legislative agenda. But through it all, she says, transgender people themselves have come forward and changed the landscape of the debate.
“Our public education as a community has become really pretty good,” she said. “People are getting out there, more parents are stepping up, more kids are stepping up, and they’re taking the time to educate people. That’s always going to be the most important work that any of us do—talk to our neighbors, our classmates, our coworkers, and our elected officials. And it’s working.”
Dan Rafter, spokesperson for the advocacy group Freedom for All Americans, which works to oppose these measures nationwide, told The Daily Beast that the “undeniable business and economic consequences” remain the go-to way to reach Republican lawmakers who are worried about the “bottom line.” But over the last year especially, he believes that the human angle has quietly gained more traction in red states.
“I do think to a lesser extent there is this growing awareness [among lawmakers] that these types of bills impact real people,” Rafter said in an interview. “The more that we continue to really elevate the families and the parents and the kids who are impacted by these types of bills, it makes it a little harder for some of these Republicans to keep pushing forward with such vigor.”
In Texas, for example, transgender children and their families have put themselves front and center in the fight against SB6, showing up in Austin, filling the rotunda in the capitol building, and publicly testifying against the bill. (Said one parent, Rachel Gonzales, at an SB6 protest according to Courthouse News: “These legislators are slapping a huge target on the back of my 7-year-old.”)
Meanwhile, the story of five-year-old Kai Shappley, a Texas transgender girl whose Republican Baptist mother came to accept her, has captivated national media. While lawmakers debate the costs of SB6, then, the people who are most directly affected by this legislation have made themselves unavoidable.
“They’re doing a phenomenal job [in Texas] of … putting a real human face on this issue,” Rafter said. “We still have a lot more work to do in this area but that’s definitely helped move the needle as well.”
In fact, putting a human face to the transgender bathroom debate may have been a deciding factor in South Dakota, where Republican Governor Dennis Daugaard vetoed a “bathroom bill” last year and preemptively announced that he would veto a similar measure this year.
Last February, as South Dakota’s 2016 “bathroom bill” was working its way through the legislature, Daugaard said, “I have not met a transgender person that I’m aware of.”
LGBT advocates made sure to change that by the time the bill was sent to his desk, arranging a meeting with three transgender people. After the meeting, as the Argus Leader reported, the Republican governor maintained that he would still “make [his] own decisions” but said, “It helped me see things through their eyes a little better and see more of their perspective.”
(In another interview with South Dakota Public Broadcasting following the meeting, Daugaard acknowledged that he had been reading more about transgender people in the media, too: “Certainly I’m getting personal stories through the emails and through what I read in the paper.”)
“I think the  bill was vetoed because we put a face to the issue,” said Adam Dale Jorgensen, volunteer coordinator for the South Dakota LGBT nonprofit Center for Equality, which helped arrange the February 2016 meeting between Daugaard and transgender students.
In Jorgensen’s estimation, it was the human angle that sealed the deal in his state: “I think the economic side really started it—and I think the conservative side of South Dakota, which is most of it, was really driven by that—and then the final, personal aspect really drove the nail through and they were like ‘Holy cow, these are real people.’”
Indeed, more Americans in red and blue states alike are realizing that transgender people exist outside of newspaper articles. According to a national survey commissioned by the Human Rights Campaign, 35 percent of likely voters in 2016 said that they personally knew or worked with a transgender person—twice as many as the percentage of voters who said the same in 2014. Those who did know transgender people were more likely to feel favorably toward them and support LGBT equality than those who did not.
Although it’s difficult to tease out cause and effect from that survey—LGBT allies might be more likely to make transgender friends in the first place—previous polling data around same-sex marriage has strongly suggested that personally knowing lesbian, gay, and bisexual people impacted same-sex marriage views over the last decade.
When even more Americans come to know someone who would be personally impacted by a “bathroom bill,” the consequences of this legislation for transgender people themselves could become as powerful as a billion-dollar price tag.
As HRC president Chad Griffin said in reaction to the 2016 polling data, “Our research reinforced what we know—that when people know LGBT people, they support us and the laws that protect us.”
But the Alliance Defending Freedom, a conservative Christian nonprofit organization that has been influential in the transgender debate, is undeterred by the fact that “bathroom bills” don’t seem to be catching on outside of North Carolina.
In an email to The Daily Beast, ADF senior counsel Matt Sharp maintained that North Carolina’s economy was still robust and attributed the failure of recent bathroom bills in GOP-controlled states to “misinformation spread by those who oppose these commonsense privacy measures” that “creates confusion among legislators considering this important legislation.”
“Enacting legislation that protects the privacy, dignity, and well-being of all children and adults is the right thing to do,” Sharp wrote, when asked if he sees a long-term future for this legislation. “And as more people become aware of the need to put the needs of all children first, and that legislation like that being considered in several states ensures that the privacy of every child is protected, we believe more states will see the wisdom in enacting this legislation.”
Time will tell if that prediction comes true.