Politics & Policy

Opposing California’s Co-Ed Bathroom Law

The movement against the new “anti-discrimination” law is gathering steam.

The leftist supermajority in California’s legislature has been running the show in the Golden State for months now, but on one issue it may have stepped too far. After the legislature passed and Governor Jerry Brown signed a law that would allow male students access to girls’ restrooms and locker rooms, the Right is pushing back, circulating petitions for a referendum.

Brown signed AB 1266 on August 12. The law requires that “a pupil be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

Perhaps surprisingly for those who see California as the bluest of deep blue states, proponents think the measure to repeal the law has a good shot at success, if it is put on the ballot.

Frank Schubert of Mission Public Affairs, the former head of the (surprisingly) successful Proposition 8 campaign that briefly barred same-sex marriage in California, is leading the fight against AB 1266, informally called the “Co-Ed Bathroom Law.” Having mounted successful campaigns in California, Maine, and North Carolina, Schubert has taken up his latest cause, coordinating the circulation of petitions to put AB 1266 on the ballot for the people of California to vote on directly.

Schubert must gather 505,000 signatures in only 80 days. Given the magnitude of this task, I asked him how confident he feels about meeting the deadline. “We’re getting a strong response whenever petitions are presented to people,” Schubert says. “We have over 600 churches now that have confirmed they are circulating petitions, we have a volunteer and paid petition drive on the street, and we’ve had a strong response on our website, Privacy for All Students.”

He couldn’t say exactly how many signatures they’ve received so far, because so many petitions are still circulating throughout the state and have yet to be returned, but they currently have 250,000 petitions “on the street,” he notes, each with eight lines, providing a grand total of 2 million signature lines. Not including the petitions still circulating, the drive has received an estimated 150,000 signatures from the paid petition drive alone, as of mid-October. “We get calls every day and we’re adding about ten churches a day to the list [of organizations circulating petitions],” Schubert says. “We had to print another 50,000 petitions to keep up with demand.”

Schubert plans to submit about 750,000 petitions by November 8, two days before the official deadline (a Sunday, when the state will not accept the petitions), putting him well over the minimum of 505,000. “It’s going to be a race, for sure,” he says, “not for the faint of heart.”

Supporters argue that before the law, transgender students — or students whose gender identity does not conform to their biological sex — were discriminated against because they were required to use the facilities designated for peers of their biological sex. The law’s opponents, however, believe that it’s fundamentally wrong to give a male student access to female locker rooms and restrooms, or vice versa.

“There certainly is sympathy for any student who might be subjected to bullying for any reason,” Schubert says. “But we’ve already passed in California multiple pieces of legislation prohibiting discrimination and bullying. What we don’t need to do is to open up the most sensitive areas of our public schools to members of the opposite sex.”

“We’re extremely confident” that the law will be overturned if it is put on the ballot,” Schubert confirms. Right now the campaign is focused solely on public education and, he tells me, there’s very little need for persuasion. “Once people become aware of it, then they oppose it,” he says. “We’ve done a survey and what we’ve found is that only 35 percent of voters support this law, and 51 percent oppose it. When you [talk with individuals and] go through the pro and con arguments, we end up at over 60 percent opposition to the law.”

“I think the law doesn’t make much sense to people,” Kevin Snider, chief counsel of the Pacific Justice Institute, said. PJI has donated $10,000 to the referendum effort, and Snider drafted the initial referendum filing papers. “When you ask people if kids of opposite sexes should play on the same sports teams, there is an even divide,” Snider said. “But when you go toward restrooms, people strongly disagree with the policy, and when you move to locker rooms and showers, it’s overwhelming.”

“After a strong campaign, we would win by a very good margin, if we are able to get it on the ballot,” Schubert added.

John J. Pitney Jr., the Roy P. Crocker Professor of American Politics at Claremont McKenna College in California, says that “those who want to overturn the law have a reasonable chance of getting the half million signatures necessary to get a referendum on the ballot.” Although Californians have become more liberal on social issues in general, he says, polls suggest that Californians would repeal this law. “This issue is different,” he points out. “Supporters of the legislation have to explain why boys should be able to enter girls’ restrooms and locker rooms. It is unlikely that they can come up with an answer that will satisfy most parents of school-age girls.”

Schubert is not involved in fighting other liberal laws in California, such as the law granting insurance coverage of fertility treatments for gay couples and unmarried individuals or the “three-parent law,” but he told me that this current effort is not isolated. “I hope we can qualify for the referendum, reengage the faith community in California to take a stand, win a victory, and reenergize the pro-family movement,” Schubert said. “Then I think we can take a step back and think about going on offense and seeing if we can’t begin to move the state in a positive direction.”

If Schubert is right and his optimism is warranted, California could be the stage of a conservative victory in a state where such victories have been few and far between.

— Alec Torres is a William F. Buckley Fellow at the National Review Institute.


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