Bathroom war becoming issue in GOP race for governor

The Republican primary for Pennsylvania governor has waded into the culture wars over bathrooms.

Paul Mango, who is positioning himself as the “true social conservative” in the race, has accused state Sen. Scott Wagner, R-York, of supporting legislation that would “allow individuals to choose a bathroom based on personal choice rather than biological makeup.”

Mr. Mango’s campaign says Mr. Wagner’s legislation would “treat people of faith like bigots, subjecting people of faith to lawsuits and worse” and “infringe on the privacy and security of our children, as well as parental rights.”

“One thing I will not do is let people, by gender identity, come into our girls’ locker rooms in schools in the name of generating business in Pennsylvania,” Mr. Mango said last week at a debate in

Philadelphia. “I’m going to keep our kids safe and secure. I’m not going to advance that bill, his bathroom bill, at all.”

Mr. Wagner, who has been endorsed by the state GOP, responded that Mr. Mango “has gone off the reservation with a bathroom bill. I am not supportive of boys and girls sharing bathrooms, and he knows that.” Who is right? Let’s review the facts. Current state law prohibits discrimination on the basis of race, sex, ethnicity, age, religion and handicap, among other characteristics, in the areas of employment, housing and public accommodations.

In 2016, Mr. Wagner cosponsored a bill to amend the Pennsylvania Human Relations Act of 1955 and extend those protections to gender identity/expression and sexual orientation in employment, housing and public accommodations. The legislation never advanced.

Public accommodations are places that provide goods and services such as restaurants, movie theaters, hotels and public schools. If sexual orientation and gender identity were added to anti-discrimination law, then public accommodations couldn’t exclude transgender people from restrooms that correspond to their gender identity “any more than you could exclude Muslims” from an establishment, said Mariah Passarelli, a Pittsburgh-based lawyer at Buchanan Ingersoll & Rooney PC who specializes in employment and anti-discrimination law.

In schools, that means facilities such as bathrooms and locker rooms must also be accessible.

So Mr. Mango is correct, in part: The legislation could mean transgender students would be able to use the bathroom that doesn’t correspond to their sex at birth.

And it is misleading to characterize Mr. Wagner’s legislation, known as the Fairness Act, as a “bathroom bill.”

For one thing, bathrooms and locker rooms aren’t mentioned in the text of the bill, and its stated rationale is to ensure equal opportunity and foster “economic growth and prosperity.”

What’s more, there’s little evidence to suggest children’s privacy and security would be threatened.

CNN reported in March 2017 that of the 20 law enforcement agencies it had contacted in states with antidiscrimination policies covering gender identity, no of those that answered “reported any bathroom assaults after the policies took effect.”

In Pennsylvania, some 40 municipalities and counties have their own anti-discrimination laws. As of 2013, at least 139 companies headquartered in Pennsylvania prohibited discrimination based on sexual orientation, and at least 40 prohibited discrimination based on gender identity, according to a report by UCLA School of Law’s Williams Institute, a think tank that researches sexual orientation and gender law and public policy.

“We just have found no evidence that anti-discrimination protections impact public safety or privacy in bathrooms or locker rooms,” said Jody Herman, a scholar at institute.

However, the 2015 U.S. Transgender Survey of nearly 28,000 transgender adults in the U.S. found widespread discrimination.

Looming over the whole debate is a split in federal case law and uncertainty over how the federal agency that enforces anti-discrimination law will operate under the Trump administration.

Federal appeals courts are divided on whether civil rights laws protect gender and sexual orientation against discrimination in employment and education. Increasingly, though, they have ruled in favor of LGBT workers.

The winner of the May GOP primary, which also includes lawyer Laura Ellsworth, will face Democratic Gov. Tom Wolf in November.