On Tuesday, voters in the city of Houston repealed a law banning discrimination on the basis of race, age, sexual orientation and gender identity, apparently out of a fear that rapists would invade women’s restrooms. This is an ominous sign for criminal-justice reform, which seeks to reduce excessively long prison sentences and to remove barriers to employment for ex-offenders. The outcome in Houston (61 percent voting against the law) reminds us that few things in politics are as effective as sensationalist ads promoting the fear of crime.
A few decades ago, the Houston result would be easily explainable, reflecting simple discomfort with gay and transgender people. But this is 2015, when a narrow plurality of Texans approve of same-sex marriage and support is probably much higher in Houston, a blue island in a red state that first elected its openly gay mayor, Annise D. Parker, in 2009.
Instead of arguing against legal protection for gay and transgender citizens, opponents of the Houston law focused on a fear that has no basis in reality, running TV and radio commercials suggesting that rapists, child molesters and other male sexual predators would use the law to force their way into ladies’ rooms—as one TV ad puts it, “simply by claiming to be a woman that day.” The announcer in the most widely run ad warns, “Even registered sex offenders could follow women or young girls into the bathroom. And if a business tried to stop them, they’d be fined.” The commercial ends with a towering figure in men’s clothes, whose face is not visible, opening the door to a stall and cornering a little girl standing inside.
This is not a scenario that has played out in any of the 19 states and dozens of localities that have had similar laws for years, but Houstonians may feel that their city is uniquely populated with a large number of sexual predators waiting for some kind of signal to strike.
The New York Times reported on the remarks of Republican Lt. Gov. Dan Patrick at an election night party for opponents of the law—called HERO, for “Houston’s Equal Rights Ordinance,” by its backers. Mr. Patrick made a bow toward the “bathroom” campaign when he said, “It was about protecting our grandmoms, and our mothers and our wives and our sisters and our daughters and our granddaughters.”
But he then revealed a larger agenda: “I’m glad Houston led tonight to end this constant political-correctness attack on what we know in our heart and our gut as Americans is not right.” No one could think he was referring only to people who use the public bathrooms that match their gender identifies as “not right.” The effect of the anti-HERO campaign was to deny the dignity of transgender people and to tell them they’re “not right” in any bathroom, or in society as a whole. But because such intolerance is tough to sell in 2015, opponents of the law resorted to scare tactics. (As Slate’s Neil J. Young points out, inciting panic about public restrooms has a long history as a strategy of misdirection; in the 1970s, Phyllis Schlafly raised the specter of rapists camping out in women’s rooms as part of the successful strategy to defeat the Equal Rights Amendment.)
The Republican governor of Texas, Greg Abbott, also showed that the local election was really another manifestation of our partisan, polarized national politics, tweeting on the day before the election: “Vote Texas values, not @HillaryClinton values. Vote NO on City of Houston Proposition 1. No men in women's bathrooms.”
At the libertarian magazine Reason, Scott Shackford showed no love for HERO (“it’s a shame the ordinance lumps in both government and private behavior…. leave it to citizens to work out the issues on their own”), but he despaired of the campaign mounted by its opponents: “There’s no argument suggesting that individual and business freedom of association is being hampered by the law. There’s no argument that we have so many more ways to culturally apply pressure to fight bigoted behavior in the private marketplace that Houston doesn't need additional laws…. Instead, they’re telling voters that little girls will be raped or kidnapped or killed (or all of the above) and there will be nothing we could do about it.”
It’s understandable for a libertarian to show such distress. Though the “bathroom” ads in Houston suggested that HERO was an example of excessive government, scare campaigns of its type are more often used to promote a “tough on crime” agenda and to vilify public officials who support work-release programs, alternatives to incarceration for non-violent offenders, and programs to help ex-prisoners find employment and become productive members of society. The success of the anti-HERO campaign in Houston makes it even more likely that political opportunists will be bringing more low-budget scare stories to our airwaves.