False alarm

|The Volokh Conspiracy |

Opponents of the Houston Equal Rights Ordinance (HERO) (text here) are sounding sirens that last rang across the city three decades ago, warning ominously of supposed threats to public safety and especially to children. The city votes Tuesday on whether to keep or reject HERO and polls say it will be close.

The Houston ordinance forbids public and private discrimination based on race, sex, religion, and twelve other factors. But it is the protection based on sexual orientation and especially gender identity that has fired up opponents.

Their opposition is rooted not in principled libertarian objection to anti-discrimination policies but in misunderstanding and fear-mongering about a small group of people. And this is where echoes of an earlier battle over city anti-discrimination policy can be heard very clearly. (Much of the history I recount here comes from Chapter 3 of my book, Flagrant Conduct: The Story of Lawrence v. Texas.)

By the early 1980s, the gay civil rights movement in Houston was flush with success, led by promising young advocates like Annise Parker. Gay voters helped elect the city's first woman mayor, a liberal named Kathy Whitmire, along with a progressive majority to the city council.

On June 19, 1984, the council passed two ordinances prohibiting discrimination against gay people in city employment. It seemed a safe choice: a poll showed that Houstonians opposed discrimination against gays by a nine-point margin.

But passage of the ordinances galvanized religious conservatives. Within a month, they gathered more than 60,000 signatures for a repeal. Thus began one of the most viciously anti-LGBT political campaigns ever conducted-until now.

Spooked by the repeal drive, the Houston chamber of commerce opposed the ordinances. Lawyers at prominent Houston law firms, and even the president of the Houston Bar Association, also lined up against the new laws.

Religious leaders led the charge to strip anti-discrimination protection from gay people. Edwin Young, then as now senior pastor of the Second Baptist Church, predicted the ordinances would promote "pedophilia, necrophilia, and other sexual perversions." Today, Young opposes HERO.

The main anti-ordinance group in 1985 called itself the Campaign for Houston, the same name chosen by anti-HERO activists today. Like its modern organizational descendant, it warned there would be sexual attacks on children. In gay-friendly San Francisco, it asserted, "children may not safely play in the parks without being exposed to [sic] by men who are meeting men for 'anonymous' sex in full public view." The modern-day Campaign for Houston similarly warns the city may become "another San Francisco."

The 1985 Campaign for Houston sponsored advertisements in which local allergist Steven Hotze warned that the city would "become a homosexual mecca if we permit laws that encourage more homosexuals to settle here, increasing the threat to your health…. Enough is enough." Hotze is now a prominent foe of HERO.

Another 1985 repeal group, the Committee for Public Awareness (CPA), brought Nebraska psychologist Paul Cameron to Houston. Speaking at a prayer breakfast, Cameron advocated a quarantine of all gay people to prevent the spread of AIDS. "It's bad enough our boys are being raped" by homosexuals, he said, "but to have them die because of the rape is worse."

Perhaps the most inflammatory material of all was a brochure distributed during the campaign by Cameron's own Institute for the Scientific Investigation of Sexuality (ISIS). The front cover of "Murder, Violence and Homosexuality" displayed a young girl cowering and screaming in a corner, her hands attempting to shield her body as a man wielded a hatchet over her head.

The 1985 ISIS literature bears a striking visual similarity to the already notorious anti-HERO ad that depicts a young girl being followed into a bathroom stall by an unknown man. Indeed, the entire anti-HERO campaign is based on the slogan, "No Men in Women's Bathrooms."

It's true that HERO guarantees transgender people will be allowed to use restrooms consistent with their gender identity. But that is not the same as allowing any predatory man who claims he is a woman to walk into women's rooms.

In fact, there is no evidence that the numerous city and state laws around the country protecting people from discrimination based on "gender identity" has led to any increase in sexual assaults against women in bathrooms or anywhere else. The bathroom stall ad, which exploits unfounded fears of transgender people, has no more basis in fact or law than the mythical villainous homosexuals of 1985.

Even so, on January 19, 1985, Houston voters repealed the antidiscrimination ordinances by a stunning 4-1 margin.

2015 is not 1985. Unlike 30 years ago, the city's business and legal establishment strongly supports the anti-discrimination ordinance because they believe it bolsters the city's national reputation. Unlike 30 years ago, many faith-based leaders and churches believe treating others as you would be treated means protecting people from unjustly losing jobs, housing, and services.

But now, as then, the stakes are high for LGBT Houstonians. Unlike most others covered by HERO, they have little or no specific legal protection from discrimination. Now, as in 1985, ordinance opponents are demonizing them as predators. The lyrics have been edited to create a new bogeyman but the horror-film background score is the same.

On Tuesday, we will find out whether Houston really is the tolerant and modern city it wants to be, a place where hoary prejudices have no place. We will know whether Houston has learned to ignore false alarms.