Posted by Attorney Jennifer Levi
Monday night, March 3, 2008
It’s the night before the legislative hearing in Massachusetts on HB 1722, a bill which would add “gender identity or expression” discrimination prohibitions to our state laws in the areas of employment, lending, housing, education, public accommodations as well as in our hate crimes laws. It feels about time that we have this essential public discussion. For the last ten years, as long as I have been an attorney with Gay & Lesbian Advocates & Defenders, we have had a growing number of calls from members of the transgender community come into our InfoLine. Those calls are a daily reminder (as if I needed one) of all of the ways in which transgender people’s lives are made harder because of the pervasive discrimination and prejudice that we face. Reviewing the intakes with Bruce Bell, our Info Line manager, and my colleague Janson Wu who is often the front line attorney reviewing those calls, gives me the data I need to take our case to legislators.
Preparing for a meeting last week with several government officials including a district attorney, a legislative aide, and the Attorney General, I asked Bruce to print out only the employment-related calls we received. I was dismayed at how many of them there were and how predictable the fact scenario had become. Caller after caller reported similar experiences. A person who identifies as FTM called to say that he worked at a major retail outlet. (The facts of this call and the one that follow re actually a blend of facts from a number of different calls in order to preserve the confidentiality of the identity of our callers. Both are, however, completely reflective of the types of calls we receive. For another example of discrimination, please see Rachel Jette's story on MTPC’s website. He had received positive reviews from his supervisors for 3 years. Everything was fine for him until he was transferred to a different store because of some personnel changes. Five days after he started at the new store, someone from the human resources office told his co-workers that he is transgender. From that point on, life changed for him at the store. Co-workers began making disparaging remarks. His punch card disappeared. Supervisors were unresponsive to his complaints of harassment. Eventually he left the store.
Another call came from a trans woman with an advanced degree in science. She reported that she responded to an on-line advertisement for a position in sales in a field in which she has 10 years of experience. The person who arranged the interview commented during the scheduling call that she was surprised to hear the caller was still on the market given the demand for skilled sales people as well as her background and experience. She looked forward to meeting her. On the day of the interview, the caller immediately sensed a different interest on the part of the employer in her application. Though she answered all of the questions and the caller thought the interview had gone reasonably well, at the end of the day, she was told that she likely wouldn’t hear anything any time soon. As it turned out, she was told, there was no position at the company any more. The caller was skeptical. Four weeks of continued advertisements for the same position by the potential employer confirmed the caller’s suspicion that the reason she never heard anything was because of her being visibly transgender. She is continuing to look for work.
This post could fill pages of cyberspace with similar stories. A recent incident of hate violence makes the need to pass HB1722 even more urgent. Just last June in Lowell, Jenine Nickola, a young transgender woman, was attacked and brutally beaten in Lowell. According to publicly released reports, she was attacked by two men very early one Saturday morning was she was walking home. Early news reports indicated that she was a gay man. The truth, Ms. Nickola later disclosed, is that she is transgender but had hidden that fact. Her decision the hide the truth of her life is unsurprising given both the serious stigma attached to being transgender and confusion about the state of the law which has no clear protections for transgender people.
So tonight as I finalize my preparation for tomorrow’s hearing, I think of how far we have come. I can remember testifying before a subcommittee of the Rhode Island legislature in May of 2001
and thinking at that time that people listening to my testimony have no idea what I am talking about when I say that transgender people face pervasive discrimination. The hearing was held in a small conference room and a handful of people spoke on behalf of the legislation. Not everyone understood the issue but enough legislators understood the importance of guaranteeing civil rights for all Rhode Island citizens and visitors that it passed the same year it was introduced.
We have come quite far with regard to popular understandings of transgender people’s lives. The Academy Award winning film “Boys Don’t Cry,” the movie “TransAmerica,” and the television show “Ugly Betty” are but a few examples of the cultural representations that have made it easier to talk to people who don’t think they have ever met a transgender person and don’t think they can even imagine one. Since Rhode Island became the second state to explicitly add gender identity and expression protections to its laws, 10 states have joined suit. While it may have taken 20 years to get 2 states to have trans explicit protections in state laws, its taken just under 8 years to get the next 11 to follow.
I can and will say to the Joint Committee on the Judiciary tomorrow that we are not asking Massachusetts to take a leadership position on this issue. It is true that Massachusetts led the way by being the second state, in 1989, to add sexual orientation protections to its employment and public accommodations laws. It is also true that Massachusetts has led the way by becoming the first state to allow same-sex couples to marry. It is not true that Massachusetts would be taking the lead in this country in making clear and consistent our laws’ inclusion of transgender people. Fourteen states including Minnesota, Rhode Island, New Mexico, California, Maine, Illinois, Hawaii, Washington, New Jersey, Vermont, Oregon, Iowa, and Colorado as well as the District of Columbia have already done so.
Tuesday 1:20, March 5, 2008
Wow, what a crush of humanity I had to move through to find this seat in the back of Room A-1 at the statehouse. The hearing on HB 1722 is scheduled for today before the House-Senate Joint Judiciary Committee. The transgender equality legislation is far from the only bill being heard by the committee. Sixty-seven other bills will be heard today on a number of far ranging issues. The hearing has started and so far there have been 2 panels focused on other bills (a victim’s rights bill and a breastfeeding bill). I know the committee will get to our bill soon but still I am eager to be talking about the importance of transgender rights.
... 4.5 hours later
I finally got to testify on HB 1722. I was fortunate to be on one of the earlier panels heard by the committee focused on the trans legislation. I did my legal bit along with fabulous advocacy by representatives of the Massachusetts Bar Association, the Boston Bar Association, the Massachusetts Lesbian and Gay Bar Association, and about a million affiliated bar associations, according to Chic Wagner, co-chair of the MLGBA, who were standing with us but not physically present at the hearing. We laid out the legal justifications for the law, the fact that transgender people face rampant and pervasive discrimination and incidents of violence, how Massachusetts would be far from a leader on this issue since it would be doing what now 13 other states and the District of Columbia have already done, and how this is a measured response to a serious problem.
As clearly as I can recall, we were the first of any of the panels to receive a question and we received multiple questions. I’ll try as best as I can to recall what they were. The first question was whether a transgender person who is told she is denied a job because of her gender identity or expression is protected under the law. Answer: yes, in theory. The Massachusetts Commission Against Discrimination has issued two decisions making clear that transgender people are protected under the law. The Massachusetts Superior Court and Appeals Court has agreed. So, what’s the problem? Answer: the problem is that the law doesn’t make clear our coverage AND some employers disagree with the interpretation of the law. The state high court hasn’t spoken clearly so the legislature should. Moreover, even if the courts were clear, law needs to speak explicitly of protections in order to be sure that the most marginalized members of our community know of this protection. So far, so good.
Next question: If a person is attacked for being transgender, can the perpetrator be prosecuted? Answer: yes, but not independently under the hate crimes law. Still, so far, so good.
Finally, the committee asked the bathroom question. And not just one bathroom question, multiple bathroom questions. The question was asked in multiple forms but best as I recall, it was rooted in two fundamental concerns. Now that I think of it, pretty much every time I hear the bathroom question I think it is rooted in basically two fundamental concerns.
First, the question reflects an absolutely unfounded myth that transgender people pose a risk of danger to others; that we are predators, seeking to prey on vulnerable women and children. The truth, of course, is that transgender people pose no more risk of safety to others than do non-transgender people. Anyone seeking to prey on vulnerable women or children in restrooms is absolutely not protected by HB 1722. And the truth is that in none of the 13 states or hundreds of municipalities (including Boston, Cambridge, and Northampton) that have passed the same protections included in HB 1722 has any mythical man in a dress turned up in any public (or private, for that matter) facility to attack anyone in a restroom.
The bathroom question alternately seems rooted in what sometimes gets phrased as “discomfort” that some non-transgender people have about being around transgender people. Ah, discomfort. That great bugaboo often raised in opposition to non-discrimination laws. In truth, it should come as no surprise that some people feel discomfort being around transgender people. Lots of people have discomfort around people who they perceive as being different or strange. Which is, after all, the very point of passing non-discrimination laws. We, as a society, have come to believe that people should be afforded opportunities based on each person’s individual merits, not based on bias, prejudice, or stereotypes rooted in a fear of difference. “Discomfort” has always been raised as an objection to non-discrimination laws – discomfort based on racial and ethnic differences, discomfort based on religious differences, discomfort based on physical differences, and, yes, discomfort based on gender identity and expression differences.
At its essence, this “bathroom discomfort” question reflects perhaps one of the most important points of non-discrimination laws. As a society, we recognize that people feel discomfort about differences. But we should not let that discomfort dictate who should be allowed to safely walk on our streets, who should be able to work, who should be able to apply for a loan, who should be afforded access to our schools, and who should be able to use public facilities with safety and dignity.
Non-discrimination laws provide necessary protections to communities marginalized because of bias and prejudice. But they also state a public policy about the aspirations of our society, aspirations that seek to ensure equal opportunity for all citizens despite our differences. And, as we make clear this public policy of inclusion, inclusion that embraces transgender people, I suspect that the discomfort people anticipate they may have using bathroom facilities will quickly disappear.
