Lance Berkman, Here's What You Don't Understand

On November 3, Houston will vote on a local referendum known as the Houston Equal Rights Ordinance—an anti-discrimination law protecting classes such as sex, race, ethnicity, national origin, age, religion, disability, pregnancy, marital status, and sexual orientation. When it was introduced and eventually passed by the city council in 2014, it seemed like a pretty sensible way to enforce the protection of every Houstonian, regardless of their identity, per that whole "all men are created equal" thing and the whole "14th Amendment to the Constitution" thing. But the provisions of the law protecting LGBT (and especially T) people raised the ire of Houston's conservative community, the law went to court, and in July the all-Republican Texas Supreme Court suspended the law and ordered it to be put to a public vote.

You probably heard about the ordinance for the first time last week, when former Houston Astros great Lance Berkman recorded a 60-second radio ad urging people to vote against the ordinance. The ad received surprising but understandable levels of condemnation on Twitter and from the sports-journalism world for not only its message, but its specific language. Here's what Berkman says:

"Vote no on Proposition 1. No men in women's bathrooms. No boys in girls' showers or locker rooms. I'm Lance Berkman. I played professional baseball for 15 years, but my family is more important. My wife and I have four daughters. Proposition 1, the 'bathroom ordinance,' would allow troubled men to enter women's public bathrooms, showers, and locker rooms. This would violate their privacy and put them in harm's way. That's just wrong. We must prevent this potential danger by closing women's restrooms to men rather than waiting for a crime to happen. Under Proposition 1, if restaurants, businesses, and sports facilities don't allow a man into a woman's restroom, they would be subject to penalties and fines. This proposed ordinance says that it will stop discrimination, but in reality, it discriminates against people who believe, like me, that members of the opposite sex should not be forced to share restrooms or locker rooms. Join me to stop the violation of women's privacy and discrimination against women. Vote no on Proposition 1: no men in women's bathrooms, no boys in girls' showers or locker rooms."

Berkman's critics pounced on specific statements from the ad, paid for by the Campaign for Houston PAC, and made several valid points. But it's worth dissecting this ad in its entirety, as many of the most troubling and deceptive fallacies remained un-sussed-out over the weekend.

• "Bathroom ordinance." Prop 1 isn't an ordinance governing who can go into which bathrooms. It's a broad anti-discrimination law, protecting people on the basis of sex, race, religion, and more—not just sexual orientation and gender identity. Furthermore, even as the law affects LGBT Houstonians, it doesn't just deal with bathrooms. It protects them against all forms of discrimination—by their employer, by their landlord, by business owners, at the polling place, at restaurants—and generally allows them to enjoy the equal protections that the United States supposedly affords all its citizens. Boiling Prop 1 down to just bathrooms is ignoring the massive other components of what the bill aims to do—and essentially states that an opponent's concerns over bathroom encounters override their desire to see every class of citizen protected under the law. Even social conservatives can agree that people whose lifestyles they find repugnant deserve the same constitutional rights—indeed, conservatives are often quite keen to see that the Constitution is followed and enforced. Prop 1 would allow the 14th Amendment—the one granting equal protection—to be explicitly enforced on the local level in Houston.
• "Troubled men." Transgender women are not troubled men. A born male coming to identify as a woman is a natural condition; it's not a mental illness or a crime. Indeed, they're not even men; many have lived as women for years, are legally women, and have no worse a claim on the women's bathroom than biological women.
• "Harm's way"; "potential danger"; "waiting for a crime to happen." These phrases strongly imply that transgender people are more likely to be criminals or, specifically, sex offenders. This is simply false. As explained above, being transgender is a natural condition, not some sickness or a symptom of depravity. There has never been a recorded incident of a transgender person attacking a straight person in a bathroom. There are, however, thousands of same-sex sexual predators—e.g., men born as men who are attracted to young boys—who use public bathrooms and could use those same opportunities to attack children. Statistically, non-transgender people should be a much greater concern to any person or group, like Berkman, that professes to be afraid of "creeps." Finally, if a sexual predator were as lecherous and inclined to commit a crime as Prop 1 opponents fear, do they really think that these criminals would be deterred by rules governing which bathroom they can enter? Prop 1 opponents view the ordinance as giving predators "legal cover" to be in the opposite bathroom, but, of course, they would have no legal cover if they commit a crime there—they'd be charged for that crime. If they do not commit a crime—like the thousands of transgender people who just want to feel comfortable when using the bathroom—there would be no need for charges.
• "If restaurants, businesses, and sports facilities don't allow a man into a woman's restroom..." Berkman makes it sound like any man would be granted free access to women's bathrooms. This is incorrect; men entering the women's room would still be against the rules. But, again, transgender women (former men who have come to identify as women) are not men. They are women because that is how they feel in their bodies, regardless of their biology. People like Berkman fundamentally do not understand that gender is an identity and a social construct; it is not a simple matter of plumbing equipment.
• "In reality, it discriminates against people who believe, like me, that members of the opposite sex should not be forced to share restrooms or locker rooms"; "discrimination against women." I don't need to re-address the point that transgender people are, in fact, not of the opposite sex. Instead, as Inigo Montoya would say, Berkman keeps using that word "discriminates"; I do not think it means what he thinks it means. Discrimination means "the unjust or prejudicial treatment of different categories of people or things." No one, Berkman included, would be prosecuted or denied legal protections based on their anti-LGBT beliefs. But when a person's beliefs include denying other people rights and legal protections—which, by definition, is true of people who oppose an anti-discrimination law—those beliefs must be overridden in a democratic, human-rights-based society like ours. They may continue to have those beliefs, and they can't be thrown into jail or denied service for them, but other people are allowed to find them repugnant—that's the flip side of allowing everyone their opinion—and yes, they'll have to live with a society that makes them uncomfortable. But just because Berkman doesn't like it, he's not being discriminated against. And women in the bathroom next to transgender people certainly aren't; they're using the bathroom freely and voluntarily.