Ballot Question 3 is the country’s first statewide referendum on transgender rights.
In November, Massachusetts voters will decide whether to keep a 2016 law that protects transgender people from discrimination in places open to the public, including hospitals, restaurants, and hotels.
The main point of contention has been the provision that transgender individuals can use bathrooms, locker rooms and changing rooms that match their identity — and not necessarily their biology or sex assigned at birth.
The "Yes on 3" campaign says preserving this law is about basic human dignity. The "No on 3" campaign says this law could put women and children at risk.
Here’s a look at the ballot question, the concerns fueling each side and the possible consequences of this referendum. Read the ballot measure here.
1. What would the ballot measure do?
This measure would repeal a law put on the books two years ago.
In 2016, Massachusetts lawmakers added two words — “gender identity” — to the list of characteristics you could not discriminate against in public accommodations. That list includes religious sect, creed, class, race, sex, sexual orientation and, now, gender identity.
This 2016 law prohibited discrimination against transgender individuals in all places open to the public — everything from medical clinics to barber shops.
If a majority of Massachusetts voters in November vote "No on 3," the 2016 law would be repealed and those two words would be removed from the list of protected groups.
One confusing element of this referendum is that in order to cast a vote for the group that initiated this repeal, voters need to fill out the "No" bubble on their ballot.
The best way to think about the ballot question is not: "Do you want to repeal the 2016 law?” Instead, the "yes" and "no" make more sense if the question is phrased: “Do you want to keep the 2016 law protecting transgender people from discrimination in public places?” Your options are: Yes, you want to keep this law on the books; or, no, you want to repeal the law.
Watch the two sides debate on WGBH News' Greater Boston.
2. Who brought the ballot initiative?
The "No on 3" campaign brought this repeal effort. The main force behind the campaign is the Massachusetts Family Institute, a group that says on its website that it is "dedicated to strengthening the family and affirming the Judeo-Christian values upon which it is based."
One of the campaign's chief concerns is that men who have ill intentions will take advantage of the law and, claiming to be transgender, they will enter women’s locker rooms and bathrooms to prey on vulnerable women and children.
Yvette Ollada, a spokesperson for the repeal effort, said that because the 2016 law looks at a person’s gender identity as a “state of mind” and does not require a person to be on hormone treatment or have gender reassignment surgery, it is ripe for abuse.
She is particularly concerned that convicted sex offenders could cite this law when entering a woman’s restroom. Further, she says, women who are concerned about their safety will feel even more disempowered because they could be accused of discrimination if they question someone’s right to be in a women’s bathroom.
Ollada said she is not opposed to transgender rights in general. She is just concerned about women and children’s safety. And, she points out, she cannot repeal just the portion of the law dealing with restrooms and locker rooms. Because of the way a repeal referendum works, the whole law must be repealed.
3. Who opposes these changes?
The effort to keep the 2016 law on the books is being led by Freedom For All Massachusetts, a transgender advocacy group. The group says that basic Massachusetts values of respect and dignity are at stake in this ballot question.
Pat Taber, a transgender individual who has been active in the "Yes on 3" campaign, said that the protections afforded by the 2016 law impact transgender people’s everyday lives: the ability to eat out with friends or the knowledge that they can ride in a taxi, Lyft or Uber without being asked to leave.
The 2016 law, she said, “makes it possible for me to take my kids to the three-hour movie and still be able to go to the bathroom afterward, as everyone does.”
The "Yes on 3" campaign opposes what it sees as a dangerous tendency to consciously or unconsciously link transgender groups with discussions of predators and illegal behavior.
The campaign points out that since the 2016 law went into effect, there has been no uptick in bathroom incidents. To the contrary, it says transgender people regularly face harassment and sometimes assault in bathrooms. Repealing this law, they argue, would put transgender individuals in harm’s way. They point to their support from groups like the Massachusetts Coalition Against Sexual Assault and Domestic Violence and the National Organization for Women.
Taber said, in drafting the 2016 law, the legislature specifically tried to ensure it would not be abused. It only protects someone if their gender identity is sincerely held and part of their core identity, and it prohibits people from improperly claiming to be transgender. In addition, she said, it’s already illegal to harm or harass people.
4. What does 'public accommodation' mean? Will other protections for transgender individuals be affected?
The 2016 law protects transgender individuals from discrimination in "public accommodations." This includes all places where the general public is allowed — stores, restaurants, museums, movie theaters, hotels, gyms, parks, health clinics, hospitals, taxis — the list goes on.
Other state laws prohibit discrimination against transgender people in housing, employment, credit and education. Those laws are not impacted by this referendum.
5. What does the data say?
One study out of UCLA’s School of Law found that in Massachusetts there is no relationship between laws allowing transgender people to use the bathroom matching their identity and criminal incidents that occur in bathrooms. This challenges one of the key premises of the "No on 3" repeal effort.
Before the 2016 law took effect, some Massachusetts towns and cities had already passed the same protections on a local level. This study, led by Amira Hasenbush, looked at those towns and cities and compared them to other Massachusetts communities that had similar demographics but didn’t have transgender protections in public places.
Combing through several years of police reports, she didn’t find any evidence to back up the fears that the law could cause more safety and privacy violations.
Reading the notes in the crime reports, Hasenbush said, “there was nothing in any of the notes indicating that a transgender person was involved, either as a perpetrator or as a victim in any of these incidents. And there was also nothing indicating anyone was pretending to be transgender.”
Plus, Hasenbush's research found that reported criminal incidents are “exceedingly rare.”
Yvette Ollada, the spokesperson of the repeal effort, is still worried. “How many assaults do you need before you protect people?” she asked.
She also said that issues may not have shown up at the local level in the first few years after the law was enacted. “They don’t go pass a law at the city level and then go advertise it to sex offenders, 'Hey, here’s a new law that’s going to protect you to go and prey on women,’" she said. "That’s not how it works.”
Further, Ollada wonders whether people are actually reporting incidents. And Hasenbush acknowledges assaults are often underreported. But, she said, the design of her study helps control for that issue.
“We have no reason to believe that the non-reporting percentage would be higher in one place versus another when they are matched on all these demographic issues,” she said.
6. What would repealing the 2016 law cost?
If the 2016 law is repealed, there are no direct costs to state or municipal governments. However, the "Yes on 3" campaign says there would be indirect costs to the state’s economy.
They argue that businesses come to Massachusetts because they can attract talented employees from all different backgrounds. If voters decide to repeal the law, they worry, it could hurt the state’s brand and affect tourism.
Further, transgender people might leave the state. Pat Taber, who was born in Massachusetts, said that if this repeal effort succeeds she’d consider moving to New Hampshire.
The "Yes on 3" campaign points to what happened in North Carolina, where its contentious “bathroom bill” prompted boycotts and cost the state a few billion dollars. However, the "No on 3" campaign counters that any impact was short-lived. They say North Carolina’s economy is now doing just fine.
Watch business leaders discuss Ballot Question 3 and their economic concerns on WGBH News' Greater Boston.
7. What happens in other states and at the federal level?
There are 19 states, as well as the District of Columbia, that have protections for transgender people in places open to the public. That includes every state in New England.
The federal government does not explicitly prohibit discrimination against transgender people. The Trump administration’s Justice Department reversed an Obama-era interpretation of the Civil Rights Act of 1964 that protected transgender people. However, some courts have ruled that transgender people should be protected under federal laws such as Title IX.
Read WGBH News' one-page voter guide on Ballot Question 3: