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Is the Attorney General Working Against the Bathroom Initiative?

Three weeks ago, an initiative was filed that would allow businesses to protect the right of privacy in locker rooms and require schools to do the same.

Now, activity out of Washington’s Attorney General Bob Ferguson’s office is raising questions about whether his office is doing its best to interfere with it.

The fact that the Attorney General’s (AG) office is involved in the initiative is not a problem.  State law requires that once the Code Reviser’s office gets the language formatted properly, the AG has the job of writing a ballot title and a brief description.

State law requires that the title and description they write must be a “true and impartial description of the measure’s essential content” that is “without prejudice for or against the measure.”

Which makes sense, if you think about it.

If an initiative sponsor had the chance to write the title that appeared on the ballot, they would likely use that opportunity to write a title that would incline people to support the measure even if it was misleading or omitted relevant information.

Therefore, the AG is called on to write a title and ballot description that fairly describes the measure.  The goal is to allow the the public to see a description of what they are voting on without campaign propaganda being published on the ballot.

But the ballot title and concise description released by the Attorney General’s office last week raises questions about whether his office has abandoned their job as neutral arbiters of ballot language and simply chosen to become partisans in the debate over bathroom privacy.

The title they wrote is as follows:

Initiative Measure No. 1505 concerns gender-segregated facilities and civil liability.

The inclusion of the word “segregation” is notable because it appears nowhere in the initiative itself. However, it may be the most loaded terms in the American political lexicon.  After all, who want to support “segregation”?

The concise description provided by the AG reads as follows:

This measure would repeal protections against gender-identity discrimination in certain public-accommodation facilities, require that public schools restrict access to specific facilities based on anatomical or chromosomal sex, and allow related lawsuits against schools.

It is very difficult to make the argument that phrases like “repeals protections against discrimination” and “requires schools to restrict access” are neutral.

Moreover, the vague reference to “certain public-accommodation facilities” rather than the bathrooms and locker rooms it actually applies to seems to be another attempt to distract attention from the actual issue and bring separate lunch counters to mind.

While the initiative language does allow a cause of action for students who have their right to privacy intentionally violated by the school as a way of enforcing the law, the phrase “and allow related lawsuits against schools” is much broader than that. It appears to be an effort to make the initiative appear to be “anti-school” without helping the public understand in any way what the initiative actually does.

After all “enforcing a right to privacy” is far different than “allowing related lawsuits against schools.”

It is very difficult to see how the proposed language is “impartial”.

In the course of a campaign, everyone has the right to make whatever arguments they want in support of or in opposition to a position they hold.

Even Attorney General Bob Ferguson has the right to pick up a campaign sign and campaign against an initiative in his free time.

While acting on behalf of every taxpayer in Washington State, however, his obligation is to obey the law and the law requires the ballot itself to be impartial.

Another curious fact that calls into question the AG’s motives is the fact that Washington State’s Solicitor General Noah Purcell was assigned to handle this issue.

The Solicitor General is typically the state’s top litigator who handles most arguments on behalf of the state in front of the State Supreme Court or in high profile federal court cases.

In this case, he has been assigned to handle legal grunt work. That fact indicates an unusual interest in the issue from the Attorney General.

The question is whether his interest is in making sure the ballot title is “impartial” and “without prejudice”—or making sure it isn’t.

Anyone who objects to the short title and ballot description provided by the Attorney General can challenge it in court.

Just Want Privacy has challenged the ballot title language. That hearing is expected to take place next week in Thurston County Superior Court.

Attorney General Bob Ferguson can be reached about the ballot title, why he has assigned his top litigator to handle this issue, or anything else at 360-753-6200.

You can also email his office through this form.

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