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Posts Tagged ‘The Bilerico Project’

Over on Bilerico, Karen Ocamp shared her take on President Barack Obama’s speech at HRC’s annual dinner last night.  I don’t go for name calling (Karen says Obama is a “sissy”), but I share her disppaontment at Obama’s failure to use the power of his office to put action to his words, to demonstrate there is more to him than rousing speeches and inspiring words.  Here’s my dream of what Obama could have said to show that “Yes, We Can!” is more than just a slogan to win votes and volunteers, which I left as a comment on Karen’s essay:

I was very disappointed in Obama’s speech. I don’t think it would have been much more of a risk, politically, for him to have said, “Tonight, I call on Congress, on Speaker Nancy Pelosi and Majority Leader Harry Reid, to start making my vision for America a reality by passing ENDA and delivering it to my desk to be signed into law.” Or to say, “Today, I signed an executive order telling the United States military to stop spending your tax dollars on investigating and discharging dedicated Americans who have volunteered to serve our Nation simply because of who they are. Our county cannot afford to lose those soldiers, sailors, air men and women and others. But, more importantly, I signed that Order because it is the right thing to do. And, now, it is time for Congress and the rest of America to do the right thing too. We can no longer stand on the sidelines and watch as Americans are denied the promise of equality that this great Nation has stood for for more than 200 years simply because of who they are, and who they love.”

But, then, I’ve always been a dreamer. It’s hard to maintain that hope, however, in the face of continued disappointment.

As Rep. John Lewis, who marched with Martin Luther King, Jr., said on the floor of the House during the debate over a trans inclusive ENDA in November 2007, “It is always the right time to do the right thing.”  Mr. President, the time is NOW!

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Attorney and law professor Jillian Weiss has posted another interesting article over on Bilerico.  This one concerns the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which held that laws making sex between consenting adults of the same sex a crime (aka “sodomy” laws) are unconstitutional, and whether and how that decision can be used to, in her words, “loosen the chokehold that the law has on transgender people.”  One of the commenters there asked if she could write another article on the definition of “sex” in Title VII and EEO policies banning “sex” discrimination, as applied to trans people.  Rather than wait for Dr. Weiss’ response, I decided to weigh in on this topic.  Here is my response:

E.T., I’ll take a stab at responding to your second question regarding the definition of “sex.”

It’s important to distinguish 2 different situations in which the legal definition of the word “sex” impacts trans people: first, laws that ban discrimination on the basis of sex in employment, housing, public accommodations, etc.; and second, the right of trans people to access legal privileges, e.g., marriage (in most states), that are restricted on the basis of a person’s sex. The second group could also encompass the right of trans people to use services or facilities, e.g., public restrooms, access to which is restricted on the basis of a person’s sex. (I say “could encompass” since, in most places, contrary to public opinion, there are no laws that say a man can’t use a women’s restroom, or vice versa. In other words, sex segregation of restrooms is largely a matter of social convention, not law, although trespassing and disturbing the peace laws are sometimes used (unjustly, in my opinion) to enforce those conventions.)

Where access to a legal privilege, service or facility is restricted based on sex, determining a trans person’s right of access requires a determination of what “sex” the person is, since sex-based segregation is based on a strict binary division between male or female, where no ambiguity is allowed. Answering that question, in turn, raises myriad complicated questions regarding how a person’s sex is determined. For example, is it strictly biological or chromosomal, or does it include a person’s gender identity or expression? If biological, do we look only at the configuration of the person’s genitals or genes at birth, or do we, also or instead, give effect to the person’s genital configuration after surgery? Can a person’s sex be legally changed? And what do we do about intersex people whose chromosomes, genitalia, internal organs, etc. are not clearly male or female?

Most, but not all, of the cases addressing this question in the context of the right of a trans person to marry have ignored the effects of surgery and attempts to “legally” change the person’s sex by amending her/his birth certificate. In other words, they were decided based on the basic premise espoused by many of our opponents that “once a man, always a man,” and vice versa.

Fortunately, most, but not all, of the recent cases involving the definition of “sex” for purposes of determining a trans person’s right to protection under laws banning sex discrimination have avoided this difficulty. They do so by saying that it doesn’t matter what sex a person is, i.e., whether the person is male, female, both or neither. Instead, what matters is whether the person was treated differently because of some sex-related characteristic. This trend started with the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins in 1988. In that case, the court said that discrimination based on sex under Title VII, the federal law banning sex, race and other types of discrimination in employment, includes being treated differently because the person doesn’t conform to sex-based stereotypes regarding dress, mannerisms, etc. Thus, the Supreme Court held that it was illegal for Price Waterhouse to refuse to make Ann Hopkins a partner basically because she was too “butch.” (The court, of course, didn’t use that term and there is no indication that I know of that Ms. Hopkins was lesbian.)

This trend, IMO, reached its logical endpoint with last fall’s federal trial court decision in Diane Schroer’s Title VII sex discrimination suit against the Library of Congress. Schroer v. Billington. In that case, the court found that the Library violated Title VII by discriminating against Schroer because she was changing her sex, not because she was male, female, both or neither.

Thus, in the context of discrimination laws or policies that you were talking about, it isn’t necessary to define a person’s sex as male or female, etc. It is only necessary to tackle that question when the trans person is seeking access to a legal privilege like marriage, or a service or facility, like a restroom, where access is restricted based on whether the person is male or female. The lack of a coherent and consistent definition of a person’s sex and/or methods for legally changing one’s sex that are actually recognized by the courts are the source of most, if not, all, of the ongoing confusion regarding the rights of trans people.

In the case of marriage, I think the best solution to that confusion is to remove all sex or gender based restrictions, in other words, to legalize same sex marriage. That’s why the battle for marriage equality is important to the trans community, contrary to the opinions of some. With respect to access to restrooms and other sex-segregated facilities, I think the best solution is to provide for personal privacy, e.g., the stalls in women’s restrooms, and allow access based on the person’s gender expression. In other words, if you’re presenting as a woman, you use a women’s restroom, and vice versa, regardless of your physical sex. Any other solution quickly becomes too complex and confusing to administer and enforce. Implementing that solution will, however, require the American public to just “get over” their hang-ups about the sex or gender of the person in the stall next to them.

UPDATE

Some of you may also be interested in this post from last year on how laws that ban sex discrimination in access to public accommodations relate to the right of trans people to public restrooms.

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eQualityGiving is proposing a bill to correct the unequal treatment of LGBT people in all areas of federal law – employment, housing and public accommodations discrimination, the American with Disabilities Act, DOMA, DADT, etc. Read about (and download) it here. Whether or not a comprehensive bill like this is ever introduced or enacted, I think it serves a useful purpose in uniting the debate on the many ways in which we are treated unequally and helping to ensure that the changes we seek are consistent.

What do you think?

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FYI, here is eQualityGiving’s email announcing its proposal:

INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT

Dear Abigail,

What if we asked for legal equality all at once in one comprehensive omnibus bill?

THE BLUEPRINT FOR LGBT EQUALITY

What would a bill for total legal equality look like? We asked attorney Karen Doering, a very experienced and savvy civil rights attorney, to prepare such a bill. It was presented and discussed on our listserv, which includes many of the major donors to the movement and the executive directors of all the major LGBTQ organizations.

We believe now is the time to introduce an omnibus bill.

We have prepared a section of our website with all the information about the proposed bill:
www.eQualityGiving.org/Blueprint-for-LGBT-Equality

There you can read the actual text of the bill and read the answers to the frequently asked questions. There is also a section reviewing the status of the incremental bills currently proposed. You can also post your comments directly on the site.

WHAT THE OMNIBUS BILL COVERS

1. Employment
2. Housing
3. Public accommodation
4. Public facilities
5. Credit
6. Federally funded programs and activities
7. Education
8. Disability
9. Civil marriage
10. Hate crimes
11. Armed forces
12. Immigration

INCREMENTALISM vs. OMNIBUS BILL

Some people think that an omnibus bill is too unrealistic to pursue because Congress functions in a very complex way. But the country voted for a new leader who promised major changes to the way our government functions.

We have tried incrementalism at the federal level for LGBT equality for 35 years without any results. Now is the best time to capitalize on the energy of new leadership and propose what we think change looks like.

As the Rev. Dr. Martin Luther King said:

“A right delayed is a right denied.”

Asking for an omnibus equality bill does not mean that we need to pursue it at the expense of incremental bills. Both approaches can be used simultaneously, and we encourage this strategy.

An Omnibus bill has two major benefits:

> It points out in clear legal terms all the areas in which we are not treated equally under the law. If we ask for less, we will certainly get less.

> An Omnibus bill provides a standard to which incremental victories can be compared. We may discover, for example, that even the trans-inclusive ENDA introduced in March 2007 still did not provide the same level of protections in employment that other groups receive.

SAY WHAT YOU THINK

If you believe that, in addition to incremental bills, we should also push for an Omnibus Equality Bill, tell your member of Congress, talk to your friends, and write about it on the site. All the info about the bill is here:

www.eQualityGiving.org/Blueprint-for-LGBT-Equality

For many months we have been preparing this Omnibus Equality Bill. Join us to push for it, so that we can achieve LGBT legal equality faster.

Best regards,

Juan Ahonen-Jover, Ph.D.
Ken Ahonen-Jover, M.D.
Founders, eQualityGiving

P.S. Please forward this alert to others who could be interested.

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UPDATE – 3/24/09

Recently, there has been some discussion in the blogosphere about the impact of what some believe to be a narrower definition of “gender identity” in the federal Hate Crimes Bill (HR1592) from 2007, when compared to the definition of that term in the gender-inclusive ENDA (HR2015) from that same year.  (The Hate Crimes Bill defined “gender identity” as “actual or perceived gender-related characteristics,” while the inclusive version of ENDA defines it to mean “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.  To learn about this discussion, read Kathy Padilla’s recent posts on The Bilerico Project here and here.)  In a comment I left on eQualityGiving’s website, I pointed out this difference and the risk of unnecessary litigation over whether the definitions are intended to have different meanings.  In response, eQualityGiving has amended their Omnibus Bill to include the same definition in all its provisions, including hate crimes.  The revised version of the bill, dated March 21, 2009, is available for download on eQualityGiving’s website.

In my original post, I failed to note one huge advantage eQualityGiving’s Omnibus Bill has over even the inclusive version of ENDA.  Rather than enacting a separate statute with a broader exemption for religious organizations and other provisions that differ from existing civil rights law, eQualityGiving’s bill would simply amend Title VII of the Civil Rights Act of 1964 (the federal law banning sex, race and other discrimination in employment) by adding “sexual orientation” and “gender identity” to its terms.  As Karen Doering, the drafter of the Omnibus Bill, explains on the FAQ page for the bill, this approach has substantial advantages over ENDA.  Having worked as an investigator of discrimination claims under Title VII and being familiar with its terms and, especially, how it has been interpreted by the courts, I see this as a major improvement over current proposals.

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Jillian Weiss, an attorney and law professor who writes an excellent blog on transgender workplace issues recently posted an excellent article on The Bilerico Project with her thoughts on last week’s decision by the federal district court in Washington, D.C. in Diane Schroer’s sex discrimination lawsuit against the Library of Congress.  In a landmark decision, Judge James Robertson held that the Library violated the federal ban on sex discrimination in employment (contained in Title VII of the Civil Rights Act of 1964) when it withdrew its previous offer to hire David Schroer, an anti-terrorism expert and  former Special Forces officer, as a terrorism analyst when they learned that she intended to complete her transition and begin work as Diane.  Among the arguments that the Library made in its defense was the claim that the exclusion of gender identity and expression protections from the Employment Non-Discrimination Act (ENDA) in the House of Representatives last year proved that Congress never intended the ban on sex discrimination to protect against discrimination based on gender identity.  Fortunately for all of us, the court rejected that argument.  However, the argument that Judge Robertson used to reject that claim is weak and, as Zoe Brain pointed out in her comment on the same article, not very convincing.  There are, however, much better reasons to reject the Library’s claim, which I put into my comment on Dr. Weiss’ article:

I’m an attorney and my practice is limited to appellate work only (criminal appeals in my case, but the rules for interpreting statues are the same whether you’re talking about civil or criminal law). The argument that the exclusion of gender identity and expression from ENDA last year indicates Congress’ understanding, and intention, that sex discrimination under Title VII doesn’t cover gender identity discrimination is an obvious one. In the end, however, it’s completely bogus.

Ask yourself, how is the belief or understanding of a completely different Congress almost 45 years after Title VII was enacted relevant to what Congress intended sex discrimination to include back in 1964? It’s not the job of Congress to decide what laws they’ve already passed mean. That’s the job of the courts.

Two other important factors further undercut this argument. First, if you review the congressional record from 1964, you will see that sex discrimination was added to Title VII with the explicit intent to defeat it by convincing the majority of Congress that it was too radical to vote for. So, there’s no evidence in the record that Congress intended sex discrimination to mean anything, let alone evidence as to whether they intended “sex” to apply only to biology or to include gender identity.

Second, what happened last year was simply that a single committee of the House of Representatives sent a bill to the floor of the House that didn’t inlcude gender identity and that the House passed that bill. It was never passed by the Senate or signed into law. Consequently, while it may be proper to say that the House Labor Committee didn’t think that gender identity discrimination should be illegal, there is no evidence that the full House or the Senate agreed, since they were never given the opportunity to vote on that question. Divining legislative intent from Congress’ *failure* to do something without any explicit up or down vote on the issue is a perilous business.

Finally, I’m no conservative by any measure, but I agree with Justice Scalia that the first place we have to look in determining what Congress intended is what they actually said. It frustrates me to no end when the courts here in Arizona agree with prosecutors that, despite the explicit language in a statute, the legislative history shows that they meant something entirely different. At some point, what the legislature or Congress actually said has to mean something.

This is not an argument that, if Congress didn’t think about the problem in 1964, Title VII shouldn’t apply to it. As one person involved with the Schroer case (it may have been Sharon McGowan, the ACLU’s lead attorney) recently said to a reporter when asked if Congress intended Title VII to apply to trans women and men, the framers of the Constitution weren’t thinking about TV either when they talked about freedom of the press in the First Amendment; does that mean it shouldn’t have the same protections as newspapers?

Change is a natural process that preexisting laws must continually adapt to. It is the difficult but absolutely necessary job of courts to determine how those laws should be applied to situations that the people who adopted them never contemplated. That doesn’t make the process illegitimate; it just makes it very, very hard.

(Crossposted on TranscendGender.)

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