- The Washington Times - Sunday, December 13, 2015

SACRAMENTO — Give voters a chance and they will overturn California’s landmark coed bathroom law in November, conservatives say — just as voters in Houston did last month with an ordinance requiring transgender restroom access.

The challenge facing California’s Privacy for All is getting its proposed initiative on the ballot next year.

Organizers made a final push last week to reach their goal of 500,000 petition signatures, due Dec. 21, for legislation that would require people to use public facilities in government buildings that correspond with their biological sex.

Certainly, the group is hoping to avoid a repeat of last year. The effort fell short when California’s secretary of state threw out more than 131,000 of the 620,000 signatures the group had gathered to place the issue on the November 2014 ballot.

“If we don’t get 500,000, it’s an announcement that really people don’t care, it’s just a bunch of right-wingers who are making it a big deal. That’s the way it will be shown,” Dennis Prager, a nationally syndicated conservative radio host based in Los Angeles, said on his show last week. “So there’s a lot at stake here.”

On the other hand, “if it does go on the ballot, of course it will pass. The vast majority of people think it’s an absurdity, and it has nothing to do with being an anti-transgendered person,” Mr. Prager said. “It’s solely common sense.”

As proposed, the Personal Privacy Protection Act would invalidate large swaths of Assembly Bill 1266, the landmark state law enacted in 2013 that requires public schools to allow bathroom, locker room and sports team access based on gender identity.

Since the bill was signed, “it’s been difficult,” said Privacy for All spokeswoman Karen England.

“We’re hearing stories, but again, the parents and school districts feel their hands are tied,” she said. “We have biological girls accessing boys’ locker room facilities. We have teachers who are complaining. It puts them in an uncomfortable spot and sometimes in an unsafe situation. So there’s a lot of concern.”

Transgender rights are widely viewed as the next frontier in the gay rights movement, which has moved to build on its success with same-sex marriage. But Ms. England said the marriage debate has little in common with whether to allow biological males access to women’s restrooms and showers.

“The progressives like to tie it to gay marriage, but it’s a very different issue,” said Ms. England. “This is not ‘live and let live.’ This crosses over into invading the privacy of other people. I don’t know where in society it’s OK for somebody of the opposite gender to expose themselves.”

California gay rights groups already are girding for a ballot fight.

After the Nov. 3 defeat of the Houston Equal Rights Ordinance, which would have imposed criminal penalties and fines for anyone trying to deny access to bathrooms and locker rooms based on gender identity, Equality California warned that the Golden State would be next.

“We fully expect our opponents to use the same misinformation and scare tactics in California that they used in Houston,” Rick Zbur, executive director of Equality California, said in a statement. “Since they can no longer stop same-sex couples from getting married, this is the next page in their attempts to discriminate against the LGBT community. That’s why this is an attack on both transgender people and the LGBT community as a whole.”

Lower threshold for signatures

After coming up short last year, the privacy group sued, claiming county clerks threw out many signatures that were valid.

If privacy advocates win in court, they could wind up seeing the repeal initiative qualify for the November 2016 ballot.

If not, the odds of making the ballot next year with the new proposal are much improved, thanks to California’s low voter turnout in 2014. The number of required signatures fell from 540,760 in 2014 to 365,880 for 2016.

Privacy for All isn’t the only group taking advantage of the lower threshold. Petition campaigns are underway on a host issues, such as legalizing recreational marijuana for adults, establishing a statewide utility and overturning the state Legislature’s newly tightened vaccination requirements.

In Houston, national gay rights groups such as the Human Rights Campaign lost despite outspending foes of transgender bathroom access. The Campaign for Houston’s trump card was ads raising the specter of male sex offenders, who need not prove that they are transgender, attacking girls in public restrooms.

Houston Unites, which backed the Houston Equal Rights Ordinance, said the ads were “bold-faced lies” because biological males who identify as females are not in fact men.

Some businesses, universities and jurisdictions have tried to reach a compromise by offering gender-neutral restrooms, but the American Civil Liberties Union and others have argued that the option is unconstitutional because it creates a “separate but equal” situation.

‘Reasonable accommodation’

In Virginia, the ACLU filed a lawsuit last year on behalf of Gloucester High School student Gavin Grimm, who was instructed to use a unisex restroom instead of the boys’ room. Gavin is a biological female who identifies as male.

“The policy effectively expels trans students from communal restrooms and requires them to use ‘alternative private’ restroom facilities,” the ACLU said in a statement, adding that the school board policy “segregates transgender students from their peers.”

A big risk for California conservatives is that they may win at the ballot box, as they did in 2008 with the Proposition 8 initiative against same-sex marriage, but lose in the long run if the Democratic attorney general refuses to defend their initiative in court, as Jerry Brown did in his position as state attorney general.

Privacy for All has anticipated that problem by including language in the proposal saying that “initiative proponents shall have the right to act as the agent of California for purposes of any necessary defense of this Act against legal challenge.”

The proposal includes fines of more than $4,000 for government entities or individuals found in violation. Such claims may be filed by people “whose privacy was actually violated while using facilities or who did not use facilities because of a violation under the Act,” according to the ballot language.

An estimated 200 jurisdictions and 17 states have laws prohibiting discrimination based on gender identity, but most of those are focused on preventing bias in hiring, housing and public accommodations, not expanding access to bathrooms and locker rooms.

In many cases, “they just say you have to give a reasonable accommodation,” Ms. England said. “Or offer a family restroom. Kohl’s has had family restrooms for years. You can access that. And if I were to enter that, if there are multiple stalls, I wouldn’t expect privacy. I would know what I’m walking into. But if I walk into a girls’ restroom, I don’t want to be exposed to a male.”

If the California measure qualifies for the ballot, it’s likely supporters of transgender restroom access will be joined by the business community, which increasingly has sided with gay rights advocates.

Even so, Ms. England says she likes the proposed initiative’s odds.

“We’re always outspent on family values issues,” she said. “But we believe the burden falls on the other side to explain why it’s OK to have opposite genders in these private facilities. So we believe our position is common sense and the majority of California voters will agree with us.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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