On Tuesday in Houston, voters overwhelmingly rejected the city’s anti-discrimination law. Put in place by the city council in 2014, the Houston Equal Rights Ordinance, or HERO, provided nondiscrimination coverage to 15 classes of people.
HERO’s opponents, however, focused on the bill’s application to Houston’s transgender residents, successfully rebranding it the “bathroom bill.” The opposition charged that “gender confused” men, sexual predators, and pedophiles would be able to use women’s restrooms. Signs declaring “No Men in Women’s Bathrooms” blanketed Houston. “Any man” could enter a woman’s bathroom “simply by claiming to be a woman that day,” a frequently-run television ad declared as it showed a man cornering a young girl in a bathroom stall. That tactic proved wildly successful. Houstonians voted by a 61-39 margin to repeal the ordinance.
Questions of gender identity and restroom access may seem born out of our current “transgender moment,” but the political use of scare tactics regarding bathrooms arose forty years ago in the fight over the Equal Rights Amendment. In defeating HERO, Houston’s conservative activists drew on the history of fears about public bathrooms that stretch back to the 1970s.
Passed by Congress in 1972, the ERA was a proposed constitutional amendment guaranteeing equality under the law for women. But the ERA’s opponents, led by Phyllis Schlafly, reduced the matter of constitutionally protected nondiscrimination to the question of bathroom safety. If the ERA eliminated sexual difference—a ridiculous but incredibly effective argument that its opponents made—then no laws could prevent men from entering women’s bathrooms. Anti-ERA materials described rapists finding safe haven in women’s bathrooms, a perfect spot to await their prey. Pedophiles would lurk in stalls ready to attack young girls. Sound familiar?
As a lawyer who had run for Congress, Schlafly was inclined to make legal arguments against the ERA. But she quickly realized that the path to preventing the amendment’s ratification lay in mobilizing thousands of American housewives to work against the ERA. They would rally, Schlafly understood, if they believed the places they felt safest—their homes and sex-segregated spaces—would be threatened by the ERA’s passage.
That’s where the “potty problem” came in. Schlafly contended that the ERA would be so far-reaching that women would not be safe from its effects even in their own restrooms. A STOP ERA pamphlet claimed the women would lose the “right to privacy based on sex” in “public restrooms and other public facilities.”
Even more than their homes, public restrooms constituted the place where these women felt most vulnerable about changes in the law and culture. In protesting the ERA, some women began to dress up as outhouses labeled as “Theirs” (rather than “Women”). They passed out leaflets calling on Americans to reject the “Common Toilet Law,” their new name for the ERA.
Anti-ERA cartoons repeatedly depicted rapists cavalierly entering restrooms whose “Ladies” sign had been replaced with “Persons.” The dark brilliance of the “potty problem” was that it alarmed women while provoking men about both of their deepest fears. Such a fear energized conservative women against the amendment, but it also rallied their husbands to protect their wives and daughters from the dangers of sex-integrated bathrooms. If women could not retreat to the privacy of their own restrooms, where could they be safe from the dangers of the world outside their homes?
That same protectionist impulse has been alive and well in the Houston campaign. “It’s better to prevent this danger by closing women’s restrooms to men, rather than waiting for a crime to happen,” the Houston Astros baseball star and father of four daughters Lance Berkman said in an anti-HERO television ad. After the votes were counted Tuesday night, Lt. Gov. Dan Patrick underscored that thinking as he proclaimed to cheering supporters in Houston, “It was about protecting our grandmoms and our mothers and our wives and our sisters and our daughters.”
This has been the winning strategy in defeating equal rights initiatives since the 1970s. In construing equal rights protections, whether in the form of the ERA or in Houston’s HERO, as little more than “bathroom bills” that endanger women and benefit “deranged” and “confused” men, they have flushed the promise of nondiscrimination guarantees right down the toilet.