'Bathroom initiative' can head to Anchorage ballot if it gets enough signatures

The Anchorage city attorney ruled Friday that supporters can start gathering signatures for the "bathroom" voter initiative, advancing the repeal of a piece of Anchorage's 2-year-old gender- and sexual-identity protection law.  

In a written opinion, city attorney Bill Falsey said his review didn't extend to the substance of the initiative but focused on a narrow set of criteria for sending an initiative to the ballot. Falsey found the measure doesn't dedicate revenues or focus on more than one subject, both of which could doom the initiative before the signature-gathering phase. 

But Falsey warned the measure could face "significant legal and constitutional questions" if approved by voters.

[Read a copy of city attorney Bill Falsey's opinion on the Anchorage bathroom initiative]

The bathroom initiative, filed March 28, says public bathrooms, locker rooms and changing facilities can only be occupied by people of the same sex, and defines "sex" as "anatomy and genetics at birth" based on a person's original birth certificate. It includes some exemptions, such as for medical emergencies, people entering facilities as janitors, for caretakers or for minors under the age of 8, if accompanied by a guardian.

Kim Minnery, the sponsor of the measure, said in a phone interview Friday that she hadn't yet had a chance to read through Falsey's decision. She indicated the plan was to move forward with signature-gathering, though she said she and her husband, Jim Minnery, the executive director of Alaska Family Action, had not yet consulted with other supporters.

Kim Minnery sponsored a wider-ranging effort earlier this year to more substantially reverse an Anchorage law that passed in 2015 and barred discrimination over sexual orientation or gender identity in public accommodations.


But Falsey ruled it too broad, violating the "single-subject" limitation of an initiative, and Minnery returned with a narrower version in late March, one that emulates so-called "bathroom bills" being debated in North Carolina and Texas.  

Falsey's written approval Friday did not come without changes and suggestions, starting with the initiative's formal title.

Sponsor Kim Minnery had filed the measure as the "Protect Our Privacy" Initiative. Falsey proposed "Regulating Access to Facilities Such as Locker Rooms and Bathrooms On the Basis of Sex at Birth, Rather Than Gender Identity."

Falsey wrote the original title contained "partisan bias." He added that many in the transgender community would not see the measure as protecting their privacy, in part by forcing a transgender person to use a bathroom or locker room that isn't consistent with their physical appearance and "reveal the otherwise-private fact of their being transgender."  

Falsey also raised questions about how the measure would be enforced. He said it wasn't clear how the city could assess a person's anatomy and genetics at the time of birth, since people don't often carry copies of their original birth certificate. He also pointed to syndromes like Swyer's syndrome, in which a person has female sex organs but male genes.

[Read the signature document and ballot language.]

He also wrote that there are "significant grounds" to challenge the legality of the city denying transgender individuals access to bathrooms, locker rooms and other facilities that match their gender identity.

But that question isn't settled. The issue is being actively litigated outside of Alaska, Falsey wrote, and there are no relevant court decisions within Alaska.

Supporters now have 90 days to gather about 5,700 signatures. The next city election is set for April 2018.

Devin Kelly

Devin Kelly was an ADN staff reporter.