The Arizona State Bar Considers Inclusion of “Gender Expression” in the Rules Prohibiting Discrmination by Attorneys

Here’s my report on today’s Arizona State Bar Board of Governor’s meeting:

It’s a long story, but there has been controversy surrounding the ethical rule governing Arizona attorneys that prohibits bias or prejudice on the basis of race, religion, sex, etc. in the practice of law for several years now. (ER 8.4(d) and Comment 3.) As a member of the State Bar’s Committee on Sexual Orientation and Gender Identity (SOGI), we have been pushing to, among other things, expand the rule to add “gender expression” to the already existing categories of  “sexual orientation” and “gender identity” as a prohibited basis for discrimination. As anyone familiar with Arizona politics will understand, the more conservative elements of the Bar have opposed this move. In fact, their most recent move was to file a petition to completely gut the rule by, among other things, removing all listed grounds of discrimination.

To counter that proposal and, hopefully, put this controversy to rest once and for all, Ameilia Cramer, the current President of the State Bar (and an out lesbian), appointed a task force representing all sides of the controversy to develop a recommendation to the Board on what should be done with this rule. The Task Force, by consensus, determined that the rule should be strengthened by clarifying what practices are prohibited, expanding the rule so it applies to attorneys’ work outside the courtroom, and by adding “gender expression.” That proposal was unanimously approved by the Bar’s Rules Committee, which reviews all proposals for changes to Arizona court rules, and recommended for adoption by the Board of Governors. (Adoption by the Board would result in the Bar filing a petition to the State Supreme Court to adopt the proposed rule; that court has the final say.)

Today was the Board’s first opportunity to review the proposed rule amendment. I, another trans woman attorney who was a member of the Task Force and a member of SOGI, and the chair of the SOGI committee (a gay man) appeared on behalf of the committee in support of the proposal. My role was to explain the concept of gender expression, since virtually no one on the Board has had any experience with trans people, let alone that unfamiliar phrase. In the short time I had, I provided a couple of examples from my own life of gender expression and how it has affected my perception and treatment by others. In addition, in response to a question from a member of the Board, I explained the differences between gender identity and gender expression and why including both is important.

Unfortunately, given the strong opposition by right-wing groups, including the Alliance Defending Freedom (fka the Alliance Defense Fund), which is based in Arizona, it appears likely that the Board will adopt the Task Force’s proposal but without “gender expression.” The Board won’t actually vote on the Task Force’s proposal until the next meeting on December 14. Amelia Cramer asked that I return for that meeting, so I will be definitely be there.

Although the inclusion of “gender expression” in the rule would serve an important educational function by informing attorneys that that type of discrimination is prohibited, omitting that phrase should not have any substantive effect on the scope of the rule, since discrimination based on gender expression, or failure to conform to gender stereotypes, is already prohibited as a type of sex discrimination under the line of cases culminating last April in the EEOC’s decision that Title VII’s ban on sex discrimination includes discrimination because someone is transgender (Macey v. Holder). In addition, I was assured by State Bar Counsel, who is responsible for filing disciplinary proceedings against attorneys who violate the rules of ethics, that the current rule is already interpreted to prohibit gender expression discrimination. Consequently, I, personally, do not oppose omission of the phrase “gender expression” from the amended rule. At the same time, I will strongly support efforts to insert that phrase into the rule in the next 1 or 2 years, after further education of Arizona attorneys on this issue, as discussed by Board during today’s meeting.

So, stay tuned and I’ll let you know what happens on December 14.

By the way, if the Task Force’s proposal was adopted in its original form, Arizona would become the first state to specifically include that phrase in the ethical rules governing attorneys, a remarkable feat if it comes to pass, given that, in recent years, the “firsts” Arizona has been known for have been on the extreme opposite end of the political spectrum.

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Restroom Access and Public Accommodations Laws

Over on TranscendGender, Amber posted a blog about her transition at work and the dilemma of how to deal with the private businesses she visits as part of her job.  In particular, she wondered how to deal with the question of which bathroom to use at places where she is known from before her transition.  As we all know, bathroom access is one of the most sensitive issues these days in the battle for equal treatment for all transgender people, and one which our opponents are exploiting by saying that prohibiting discrimination against trans people in allowing access to public accommodations means the the dreaded, and clearly perverted, “man in a dress” will use these laws as an excuse to go into women’s restrooms and abuse every woman who enters, especially little girls.  (The truth, of course, is that there is nothing to prevent that from happening right now, so these laws change nothing in that regard.)  In her comment to Amber’s blog, Renee pointed out that private businesses are private property and that the owner can exclude anyone they wish by invoking laws against trespassing.  Her comment, however, didn’t factor in the effect of public accommodations laws.  So, I responded with the following:

While what Renee said about private businesses is basically true, they do not, in fact, have unlimited discretion to exclude people.  Virtually every state has a law that prohibits sex, race and other discrimination in public accommodations.  Thus, businesses like theaters, shopping malls, retail stores, hotels, and restaurants that offer their goods and/or services to the public are subject to these restrictions even on their private property.  Moreover, both state and federal courts have held that discrimination because a person doesn’t fit gender stereotypes, such as a butch lesbian or a fem gay man or even a trans woman or man, is illegal sex discrimination.  Here in Arizona, a friend of mine filed a civil rights complaint with the state Attorney General’s office against a night club for banning her and all other trans women because some women were complaining about their use of the women’s restroom.  The AG accepted and investigated the complaint as a valid allegation of sex discrimination; in other words, they accepted this interpretation of Arizona’s law.  Eventually, the complaint was settled by agreement (the nightclub owner dropped the ban and put a gender neutral sign on a preexisting single stall bathroom), so there is no administrative or judicial ruling affirming that this was, in fact, illegal sex discrimination under Arizona law.  Nonetheless, this remains a valid basis for asserting our rights if a private business that qualifies as a “public accommodation” treats us differently because we aren’t as masculine or as feminine as they think we should be.

The ban on sex discrimination in access to public accomodations applies to restrooms, just as it does to every other part of a business open to the public.  Many people believe that there are laws stating that only men can use the men’s room  and vice versa.  In fact, as far as I know, no state has such a law, although some cities may.  Absent such a law, which may be subject to constitutional challenge, the business cannot discriminate against anyone in allowing access to restrooms based on their sex; in other words, women can legally use the men’s room and vice versa.

When Amber goes to one of these businesses as a contractor, instead of a customer, her status is different and the public accommodations protections may not apply to her on that visit.  If, however, she comes back as a customer, e.g., to see a movie, they cannot discriminate against her because she is trans under this theory.

A final caveat:  Although many courts have accepted this interpretation of sex discrimination statutes, others have not and instead have held that it does not violate such laws to exclude someone because she or he is trans.  Most of those cases predate a 1989 U.S. Supreme Court decision (Price Waterhouse v. Hopkins, 490 U.S. 228) holding that discrimination based on gender stereotypes violates the federal ban on sex discrimination in employment.  The current, although still somewhat uncertain, trend in the case law is to accept and apply this theory to discrimination against trans women and men.  Of course, the adoption of local, state and federal laws explicitly banning discrimination on the basis of gender identity or expression eliminates the need to rely on this theory and makes our protections much more secure.

In other words, although our protection against discrimination under existing law is uncertain, we are not wholly without remedy when we are unfairly treated because of who we are.

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