Advocating for Trans Rights and Protections

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.

Why ENDA Must Cover Sexual Orientation and Gender Identity

Posted by Jennifer Levi, GLAD Senior Staff Attorney

Ever since attending a meeting last Friday with staffers from members of Congress who have said that they are going forward with a non-inclusive ENDA, I have been thinking about 2 questions I heard from those who disagree with the nearly 300 organizations who have pushed exclusively for an inclusive ENDA. They are: (1) why can't you continue to do the educational work you started on the gender identity portion of the bill after a sexual orientation-only bill goes forward; and (2) what is the harm of the so-called incremental approach that splits off the gender identity provision and moves forward with only sexual orientation protections. My answers to these questions are related and I answer them here.

The problem with the approach is that formally dividing a bill that is intended to cover the entire lesbian, gay, bisexual, and transgender community does not reflect the experience of many of us in the community. I would argue that to be the case for most of us but certainly nothing in my answer hinges on that empirical assessment. Perhaps more importantly, what separating out the provisions does is to artificially impose a classification structure upon the community that serves to divide us in ways that we do not naturally divide ourselves.

What do I mean by this? Well, from a very personal perspective, I identify as both lesbian and transgender. How could that be? The answer is that to much of the world I appear to be a man. When I go to restaurants, servers refer to me as "sir." When I board an airplane, the people at check-in often ask why I have someone named Jennifer's identification? And, although I look like a man, my body parts are more typically associated with someone who is female. I have the name of Jennifer because it is the one my parents gave me.

Sometimes it is hard to move through the world with a masculine expression in the body of someone female. But for me, it would be harder to move through the world with a gender identity, one that is more easily read as feminine, that does not match my inner, lived sense of who I am. The difficulties I encounter stem, I believe, from having to face others' discomfort. At least I do not have to live with my own.

Certainly, there were times when I did. There were years when I tried to change the outward expression of who I am in order to get along and not have to face others' discomfort. I wore more feminine clothing, shaved my legs and removed my beard. The psychic pain of this choice was mostly unbearable. Rather than sacrifice myself, I risk and face society's discomfort with the mismatch between my gender identity/expression and my sex.

As to why I identify as lesbian, well, I nearly always have. I came out as lesbian earlier in my developmental process than I identified as transgender. My intimate relationships have mostly been with women. As someone with a mostly female physical body, identifying as lesbian has assuredly made it easier to get dates.

So, for me, and I venture to guess many in our community (pretty much all of the butch lesbians and feminine men), the characteristics of gender identity and sexual orientation are inextricably intertwined. It is nearly impossible for me to understand my identity through one lens and not the other.

The reason, I believe, there has been such an overwhelming outpouring of community support in response to Congressional efforts to strip ENDA of gender identity protections is because it is so painful, maybe indeed impossible, for the LGBT community to even understand the distinction that would be imposed upon us by a bill that advances with one and not the other.

Laws are supposed to advance protections and do no harm. Stripping ENDA of gender identity does serious harm. It forces our community to accept, and worse, advertises to the rest of society, a distinction that is artificial - one that undermines for many of us our self-identity and lived experience. Because of the inaccurate definition of community we are left with, it also makes it nearly impossible to educate because the bifurcation reflects a fundamentally flawed description of who we are.

To be sure, there was a time when the community wrestled with whether we should forge political community across the LGB and T divides. Those were hard years for many of us, personally and politically. But we as a community are completely in a different place. That different place does not reflect compromise or political correctness. Rather, I believe strongly, that it reflects growth and a development of awareness that we cannot separate sexual orientation and gender identity.

Asking us to move forward with a bill that only includes sexual orientation does a grave disservice to each of us for whom that is not a real distinction. Moreover, it does so for partisan political purposes. In the end, a "historic vote in the House" that will assuredly face a presidential veto gets us no legal protections. And, if taken on a bill that strips gender identity and leaves only sexual orientation, the vote would come at a very high cost indeed.

A Weakened ENDA makes no sense

GLAD supports a fully inclusive Employment Non Discrimination Act (“ENDA”). ENDA would make it illegal in all 50 states for employers to discriminate against employees on the basis of gender identity and sexual orientation.

In 1964, when Congress passed the Civil Rights Act protecting a number of groups from discrimination on the basis of a number of characteristics, no consideration was given to protecting gay, lesbian, bisexual and transgender people. Politically, we were simply not on the radar.

But the political climate changed significantly as awareness of gay and lesbian issues rose and, in 1994, congressional leaders advanced a bill focused narrowly on prohibiting sexual orientation-based discrimination in employment. It was thought that the narrow focus would help it pass quickly.

Of course the political weather changed yet again, becoming unfriendly to LGBT people, and ENDA languished for 13 years and with no hope of any advancement. Nearly five years ago, GLAD, Lambda, the ACLU and the National Center for Lesbian Rights joined to reexamine that very narrowly focused 1994 bill to see if it still made sense legally, strategically, politically and ethically.

In light of what we have learned and how our movement has evolved since 1994, it did not. First, our movement has increasingly become inclusive of transgender people, recognizing our shared experience and history. GLAD in fact added “gender identity and expression” to its core anti-discrimination mission on this basis. This is not only a matter of justice but a recognition that discrimination against sexual minorities comes from related sources.

As GLAD knows from the calls we get on our InfoLine, the discrimination experienced by many gay men, lesbians and bisexuals is based not directly on their sexual orientation, but on their presentation — their gender identity or expression. They are “too feminine” or “too masculine” and they make employers uncomfortable — and they’re fired.

And from a series of unprincipled court decisions dating back to the 1970s and 1980s, we learned that existing federal sex discrimination laws would not prevent employers from firing trans people unfairly.

Consequently, we felt it was critical to add language explicitly prohibiting discrimination based on gender identity or expression to proposed federal and state laws. It would protect all of us, and it was the right thing to do. Our legal groups, alongside the political groups, worked intensively with congressional leaders to a place of unity and support for the fully inclusive ENDA that became HR 2015.

Two final practical points support our position. First, our experiences in state legislatures, and most recently in Congress, involving work on hate crimes, show that legislators know how to ensure that laws protect the full community. Second, in other contexts we have learned the lessons associated with asking for less than we want and deserve. Our efforts on marriage equality prove that there is no point in our community selling itself short.

Having come to this position, it makes no sense for GLAD to support a weakened ENDA, and we would urge others to take that position as well – as nearly 300 groups across the country have. The time is right to stand together as one community supporting one bill.