Bathroom Wars

The Man Behind NOM’s New War on Transgender Students


Exactly one year ago, Frank Schubert was on top of the world. California’s gay marriage-banning Proposition 8, which he had helped push through, was in effect. He’d successfully knocked down ballot initiatives in Maine and North Carolina to legalize gay marriage, and gearing up for similar fights in Maryland, Minnesota and Washington State. In the nation-wide crusade against gay marriage, Schubert was king.

Then, in what seemed like no time at all, all his hard work has come crashing down. All five of the states in which he’d worked to block gay marriage have now legalized it. The Supreme Court effectively killed Prop 8, and deemed the Defense of Marriage Act—a federal ban on same sex marriage—unconstitutional. For a guy like Frank Schubert, who’d spent the last half a decade fighting to keep marriage defined as a sanctified union between a man and a woman, it seemed like game over.

But Schubert refuses to wave the white flag—only now he’s got a new, and somewhat unexpected target: transgender students. He’s just signed on to lead a campaign backed by the National Organization for Marriage—the group that he’s long worked with on the gay marriage fight—to repeal a new law in California that reinforces existing anti-discrimination laws by allowing transgender public school students to choose which bathroom to use and which sports teams to try out for.

It might seem like an odd fight for a group that’s long prided itself on being solely marriage-focused. But critics say this latest initiative is not only a desperate attempt to regain relevance following their devastating Prop 8 defeat, it’s also proof that NOM is hardly a single-issue organization, but rather an all-out anti-gay group determined to strip LGBT people of all basic rights.

“They’ve always pretended to be marriage focused, but that’s bogus,” said Fred Karger, the gay one-time Republican presidential candidate who founded the Californians Against Hate in 2008 in opposition to Proposition 8.

On August 12, 2013, California Governor Jerry Brown signed Assembly Bill 1266, a bill reinforcing California’s existing law prohibiting all kinds of discrimination in public schools by requiring that students be allowed to use sex-segregated facilities (bathrooms, locker rooms, etc.) and participate in sports and other sex-segregated activities, based on the gender with which he or she identifies, whether or not that is the same gender that’s listed on their school records. In short, the law says, a transgender student who identifies himself as male should be allowed to use the boy’s bathroom and try out for the football team, regardless of the fact that he was born a girl. A little over a month after the law was passed, the National Organization for Marriage announced it would be throwing its weight behind an effort get the law repealed—a campaign spearheaded by Schubert.

Frank Schubert wasn’t always a conservative crusader. A life-long Catholic with an interest in the pro-life movement, the Proposition 8 campaign was Schubert’s first professional foray into social issues. “It awakened me to what’s at stake and the fact that I have potentially an ability to make a contribution to the debate because of my background in public affairs,” he told The Daily Beast over the phone from his timeshare in Hawaii. At that time, he was still working on behalf of Schubert Flint, the corporate public affairs firm he’d co-founded in 2003. But trying to balance both his corporate clients and his social campaigns was difficult and, after a few years, Schubert says, he decided to focus strictly on the latter, forming a new, social issues-focused shop called Mission: Public Affairs in 2012.

Others say that’s a sunny version of the story. Fred Karger claims Schubert “was run out of town. His firm plummeted because of Prop. 8.” A New York Times profile of Schubert from last year suggested his firm shuttered because his activism was turning away corporate clients. Schubert’s former partner, Jeff Flint did not respond to requests from The Daily Beast for comment.

In his heyday, Schubert was known for less controversial campaigns, tailoring his message to assuage his supporters’ concerns that voting against gay marriage does not make them prejudiced or bigoted. Schubert has made no effort to hide the fact that his sister, Sacramento district attorney hopeful Anne Marie Schubert, is gay, insisting that he’s not bothered by her sexuality and their differing views on marriage do not diminish how much he loves her. (When pressed on how he’d feel if his sister decided to get married, Schubert said he didn’t want to talk about it.) Still, while he insists that “no child should be subject to bullying at school for whatever reason,” his statements on gender identity suggest his tolerance has a limit.

In a column on the conservative website Red State last month, Schubert mocked the concept of gender identity, calling it a “craze,” no more “ridiculous” than claiming a racial or ethnic identity not depicted in one’s lineage.

“We accept these terms as if they have some deep-seated meaning and they don’t,” he told The Daily Beast. “Quote, gender identity, is the same thing as racial identity. Maybe you are confused about your gender, maybe you have a psychological disorder. That’s fine. But let’s not act as if gender identity is some innate, inborn characteristic of humanity because it’s not. It’s a political creation designed to advance an agenda.”

Fred Sainz, Human Rights Campaign’s Vice President for Communications, says it’s precisely comments like this that “put into perspective this man’s lack of seriousness.” But that doesn’t mean his words shouldn’t be taken seriously.

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Schubert, Sainz said, has gone from being a well-respected political operative that people on the left may have disagreed with, to a full-blown member of the fringe. “His alignment with NOM was really part of a downhill spiral for him,” he said. A spiral that he says coincided with NOM’s own slip from legitimacy.

“Remember, NOM started out as an organization that merely had a polite disagreement with us over marriage,” he said. “At certain points, some of their members even said they were in favor of civil unions. But now, they are not only opposed to marriage, they are opposed to any measure of equality for anyone who does not look or act exactly like them.”

“They were lacking relevancy a few months ago, but now they’re grasping at straws,” Sainz said. “But just because they lack relevancy doesn’t mean they’re not dangerous.”

Schubert acknowledges that this latest campaign is a switch from his previous focus on gay marriage laws, but he says that they’re not completely unrelated. “It started with a simple request for tolerance,” he said. “Now, three months after the Supreme Court let Prop 8 die, they pass a bill like this. We’re way past tolerance and acceptance; we’re onto an attempt to force their agenda on the rest of the states.”

Schubert and NOM’s latest battle stands to be an uphill one. Geoff Kors, the senior policy and legislative strategist for the National Center for Lesbian Rights, thinks it’s extremely unlikely that NOM and Schubert will manage to gather the 507,760 signatures necessary to qualify for a referendum by the November 8 deadline. Even if they were successful, a repeal would be virtually meaningless, as the law simply acts to reinforce existing state and federal nondiscrimination laws.

“The point is to get media attention,” Kors said. “When you go out and collect signatures, you get new supporters for your cause. If you raise money, you can pay Frank Schubert who is obviously looking for work after the four losses on every ballot measure he did on marriage last year.”

On top of the logistical hurdles this campaign faces, NOM is strapped with some internal problems of its own. The organization is the subject of three separate state ethics investigations—all sparked by complaints from Karger—based on the group’s refusal to release the names of its donors when their funds had been used to influence elections. The most recent investigation was launched in August by the Iowa Ethics & Campaign Disclosure Board, joining its counterparts in Maine and California. In Iowa, Karger claimed the organization had violated state law by failing to release the names of its donors whose funds were used to in an effort to unseat four of the state Supreme Court justices involved in the 2009 decision to legalize gay marriage in Iowa.

“They manage to create a lot of enemies as they move around in a bullying fashion,” said Karger, who last week wrote a column at The listing “a handful” of the judges, lawmakers, and political candidates who’ve been subjected to NOM’s “extreme intimidation and threats.”

“They’re just relentless, NOM and Schubert. They will defy laws. They will walk all over people,” said Karger. “They will do anything to be successful and it has finally caught up with them.”

Representatives from NOM did not respond to repeated requests for comment on this story.

He may be the only one, but Schubert really believes the repeal battle stands a chance, pointing to in-house polling that he says reveals significant support for his cause.

“I say people should be allowed to live as they want, make the choices they want, love who they want. But when we cross the line into pushing an agenda that I think is designed to strip what God himself created, two genders that are complementary, I’m not down with that. And I think a lot of people agree with me. ”