In 2008, while much of the United States celebrated President Obama’s victory and a historic moment for the United States, California progressives reeled from the successful passage of Proposition 8, which eliminated marriage equality in the state. As the nation’s eyes turned to the state and this chilling example of the potential abuses of the initiative and referendum system, it raised a great deal of questions about how California progressives had lost out so ignominiously, and how they could recover.
The Proposition 8 campaign was extremely well-run, fueled by resources from far outside the state, the backing of a number of religious organisations, tireless field workers, and a very effective outreach campaign. Meanwhile, progressives working against it were poorly-organised, didn’t consider and reach out to the key communities making decisions about Proposition 8, and seemed surprised when the measure passed, almost as though they expected the state to vote liberal simply because it’s blue.
On its surface, the initiative and referendum system provides an excellent, hands-on way for the electorate to get involved in government. Anyone who can gather sufficient signatures can bring a referendum to the ballot challenging existing legislation, or an initiative asking for a change to the law; this includes, as illustrated with Proposition 8, not just new laws but also constitutional amendments, which are more difficult to repeal.
Yet, as numerous mishaps in California’s history have shown, the system can backfire. Those with the ability to organise the needed votes are often wealthy and powerful, and they tend to promote their interests rather than those of the general public. Thus, the state has ended up with problems like those caused by Proposition 13 (1978), which limited property taxation and has created a slow bleed on public resources as individual counties now struggle to provide public services.
And, as in 2008, there’s another glaring issue: it allows people in the state to bring civil rights matters to the public vote, despite the fact that there are some very compelling arguments against this practice. Members of the general public are not those best fit to determine the outcome of proposed legislation on civil rights issues, as this legislation affects, by nature, minority groups who cannot equally and fairly represent themselves at the polls and in discussions about the issue.
In the case of marriage equality, which has become an overshadowing gay rights issue in the United States, Prop 8 may have turned a lot of heads and generated a great deal of attention, but it was also, very fundamentally, a civil rights violation. It questioned the rights of gay couples to marry, and by extension, to exist at all, proposing that they be permanently enshrined as a lesser social class in the California constitution despite the fact that this is clearly a violation of civil rights.
Now, the state appears poised for a messy repeat of Proposition 8 that sadly won’t attract that same public attention, because this time, it involves the transgender community, which hasn’t achieved the media darling status of middle-aged gay white men who want to get married.
Passed earlier this year and signed into law by Governor Gerry Brown, AB 1266 allows transgender students to compete on the sports teams appropriate to their gender, and to use the bathrooms most appropriate to their genders as well. While this by no means eliminates discrimination and other hardships for trans students, it is designed to make school life comfortable and safer for them; trans girls won’t have to compete on the men’s soccer team now, for example, and trans boys won’t be forced to play on the girl’s basketball team.
Just as importantly, girls won’t be forced into the boy’s restroom and vice-versa. Individual students will obviously need to make their own choices about sports teams and bathrooms on the basis of the communities they live in, their transition status, and other issues, but AB 1266 protects them, creating a legal framework to support their choices and their gender identity. It also creates an opportunity to bring trans issues into the public eye and educate people, something that can lead to greater inclusion of the trans community.
Of course, California conservatives hate it, and have been quick to shower bigoted and transphobic commentary across the state as a result. They’ve warned about the perils that will now run rampant in California bathrooms, the possibilities for cheating on sports teams, and other problems they claim will be inevitable if transgender youth are allowed to be themselves in school.
Such responses are typical to progressive legislation, particularly that favoring the trans community, but conservatives are taking it one step further: as before in response to gay marriage, they’re gathering signatures. According to the Los Angeles Times, 500,000 of the 505,000 signatures needed by 8 November have already been collected (like other signature-gathering campaigns, they will push for approximately 700,000 to ensure all are valid), raising the very real spectre of yet another civil rights issue on the California ballot.
Given how Proposition 8 went, California’s trans community could be facing defeat snatched from the jaws of victory: almost as soon as a law was passed to protect trans youth, that law could be suspended until voters have the opportunity to vote on it. And those votes are likely to trend in a negative direction, judging from Proposition 8 and the organising strength of California conservatives. While the state may be blue, it has numerous red patches, and conservative voters tend to turn out in droves for ‘values’ issues.
Especially if the proposition appears on next year’s ballot, which will cover historically under-attended mid-term elections, apathetic voters on the progressive side could sink the trans community’s chances for successfully opposing it. Can the trans community learn from the failures of Proposition 8 and defeat any proposal to restrict their rights? And, more importantly, can the same gay-friendly community that rallied around opponents of Prop 8 also turn out for the transgender community?
Photo by Paul Keller, licensed under Creative Commons Attribution 2.0 Generic license