PUBLIC ACCOMODATIONS = CIVIL RIGHTS

In many states, if a bill has not made it past committee by a certain juncture, it’s considered dead. Such was the fate of Maryland HB 235, the Gender Identity Anti-Discrimination Act (mid April, 2011). This highly contentious bill garnered some support, but was also deemed by many to have been constructed with inappropriate language. Championed by Equality Maryland, National Center for Transgender Equality (NCTE) as well as by the National Gay & Lesbian Task Force (NGLTF), it mandated protections for trans individuals with respect to employment, housing and credit. Conspicuously missing, however, was one critical component of anti-discrimination legislation: public accommodations.

The case EQ Maryland and its allies made was that including public accommodations was untenable given the state of Maryland politics, and the decision was made to introduce the bill sans PA protections. This choice led to a trans insurrection...activists both within and outside Maryland leapt to defend the importance of public accommodations and to make the case that a bill without these critical protections was not only insufficient, but counterproductive.

What is meant by public accommodations? The kinds of things generally indicated are transportation facilities, schools, hospitals, malls, homeless shelters, restaurants, other retail areas...and, of course, public bathrooms. After all trans activists have written about the bathroom issue, it must be obvious that a bill which leaves huge gaps in these critical areas does so because of all the mis-information that’s been put forth to scare people about purported predation by “trans-freaks” upon innocent women and children. There has NEVER been any evidence to support or corroborate these allegations...they’re merely the ravings of uneducated doom predictors who preach fear as their daily message. And...isn’t this really where the resistance to public accommodations derives and finds root?

The failure to include all of these aforementioned (and other) areas within the aegis of anti-discrimination language leaves HUGE gaps in both actual protections and in how the public perceives and interprets these protections. It may even be possible for those predictors of doom to use such non –inclusion to bolster their baseless attacks leveled at trans persons...and...mostly at trans women, a case of unadulterated transmisogyny.

Am I saddened at the death of HB235?? No and yes. I say “yes” because of the dissension/lack of concord amongst trans advocates vis a vis the best way forward. But, my gut tells me “no”, because the repercussions and consequences of passing a bill without public accommodations language are potentially disastrous.

One of the reasons trans advocates have become alienated from the larger LGBT community is due to the disparity of enacted legislation. According to the NGLTF website, if gender identity and sexual orientation are not bundled together for the initial anti discrimination bill, than a gap averaging 14.5 years exists between passage of laws protecting gay and lesbian individuals and passage of the same legislation that protects trans persons. Just as in Maryland, we are told to wait, be patient, give it time until the lawmakers and the public are “ready” to accept(??) us. This is UNACCEPTABLE given the length of time usually needed to revisit many of these pieces of legislation.

The list of jurisdictions which have passed laws protecting gays and lesbians yet which have not enacted laws to protect trans persons is vast. One might think that, of course, New York and, especially Massachusetts, the first state to ratify marriage equality, would have taken steps to protect their trans citizenry...but...the answer is no.

I spoke with Robyn Webb, a Baltimore, MD resident and a former board member for the International Foundation for Transgender Education (IFGE), just after the bill had died in committee. Her exact words were, “This is not a trans issue...this is an American issue.” Furthermore, she reminded me that the City of Baltimore and Montgomery County, MD had already passed protections regarding gender identity which supported public accommodations as a critical area of concern. Had HB235 passed, she and others residing in Baltimore and Montgomery County would have been subject to a curtailing of their individual civil rights.


What kind of message do we send when we attempt to legislate poorly constructed bills without a sufficient radius of coverage? Are we setting a precedent? Of the thirteen states which have enacted gender identity inclusive legislation, each and every one has mandated public accommodations as part of the bill. Only one state...California...passed all inclusive PA protections after it had already passed workplace. The others states bundled each of these protections together with one other exception...Hawaii omitted workplace protections and is only just now about to overcome that shortcoming. It’s been almost six years! Of the hundreds of jurisdictions which have locally taken steps, most have stipulated PA provisions. Had Maryland chosen to follow the path of California, there is certainly no guarantee that a follow up bill would have been forthcoming.

Not including buses, lunch counters, homeless shelters, state office buildings, and the other areas a bill which opted out of PA language would exclude, means depriving people of their civil rights. Imagine the Civil rights Act of 1964 guaranteeing right to work, but insisting upon separate bathrooms and lunch counters? It’s hard to make the case that discrimination is unacceptable, when we hedge on what is and what is not deemed “discrimination”.

Precedent goes even further when we talk about the court of public opinion. Many will buy into the fanatic position that standing for full and equal rights means allowing men in dresses license to prey on women and children in bathrooms; that men in dresses will be free to teach their children; that no one will be safe with these gender confused people lurking around. A bill without public accommodations essentially gives power to this baseless mindset; if there were no problems then why exclude critical areas of need? No wonder so many of these transphobes rename bills in their respective states “bathroom bills”.

Passing legislation which protects ALL citizens of any given jurisdiction should be no big deal. But, when we quibble over what will and what will not be protected, we are treading on civil rights. And we empower those who would perpetuate baseless allegations that some people are dangerous and don’t deserve equal rights. Wasn’t that part of the argument in 1964?

MARRIAGE EQUALITY OR BUST

I don’t expect this to be the most popular column I’ve ever written. In fact, this will probably be deemed contentious and recalcitrant. I know how important the issue of marriage equality is to many within the gay and lesbian communities. You may have wondered why some of your trans friends are turning their collective backs regarding this issue. It’s not that we don’t support the general agenda of equal rights. We do. And, it isn’t that spousal equality doesn’t affect trans individuals. It does.

The rationale underlying my lack of interest/support for marriage equality must be seen through the eyes of proportion. Last month I wrote about the results of the mammoth trans survey which has plainly demonstrated that opportunities and quality of life for trans persons indicate “injustice at every turn”. For a significant portion of the trans population, life has become a matter of survival. For a majority of trans identified individuals, life is substantially burdensome. And, too many trans persons are marginalized, vilified, ostracized and, in some cases, murdered.

Yet, the history of trans activism within the LGBT umbrella has seen a consistent pattern of pejorative treatment. If it wasn’t the baseless and untenable argument that we should be patient and wait our turn, then it was the patronizing and condescending handling of trans issues or the co-opting of trans tragedy as a fundraising tool to increase the coffers of Gay, Inc. and its single minded effort to work on legislation paramount to the gay community. To wit: marriage equality, DOMA, and DADT.

The history is remarkably clear. Even as far back as the early ‘90’s (much earlier, in fact) we see evidence of an extreme lack of sensitivity and understanding by the gay hierarchical structure vis a vis the inclusion of trans issues in the broad umbrella of discrimination. This is all the more incomprehensible given that, in many cases, discriminatory behavior has been generally prompted by the alleged transgression of gender expression in a world which thrives on gender normativity.

The view towards LGBT solidarity was irrevocably damaged after the 2007 ENDA (Employment Non Discrimination Act) fiasco. It became obviously apparent that many in the LG world not only did not understand the nature of trans discrimination but displayed an acute insensitivity towards the repercussions of a non inclusive ENDA. We’ll come back for you later, we were told. Yet, reality proves that revisiting this kind of legislation is rare and that many in the gay and lesbian communities could care less. HRC made that abundantly clear.

Fast forward to the Obama administration. We thought the time had come for total inclusivity. We’ll all get there together. We’ll pass ALL the legislative measures for which we’ve been fighting...and first, and foremost, will be ENDA.

That’s not what happened. Instead, the first bill passed was a relatively toothless hate crimes bill. Sure, this was necessary, but not the most important piece of legislation needing passage. Regardless, ENDA still appeared to be on track, until the fight for health care became a juggernaut with its own mass dominating politics. ENDA was essentially shunted to the side, even though talk still circulated that leant credibility to its possible introduction and support.

Sadly, this wasn’t the case. In fact, the contentiousness of Congress and the inability to address cloture issues, the perpetual boondoggle agenda mobilized by the Republican caucus, essentially doomed ENDA. Yet, there was enough support for the dismantling of Don’t Ask, Don’t Tell (DADT) and the lame duck congress, along with executive support, managed to see this bogus program get dumped. There is every reason to presume that ENDA might have been that last ditch piece of legislation, yet it seemingly wasn’t even up for consideration.

Now that DADT has been undone, what is the most important issue that most gay and lesbian acrtivists are hoping to advance? Is ENDA finally the consensus favorite?

NO!!!!!

The number one issue which members of the L & G communities hope to advance is marriage equality, as well as the corollary DOMA.

The political affairs of the state of Maryland have been a microcosmic slice of what activists are addressing nationwide. And, the hypocrisy is blatant. Many bloggers in the trans community have addressed this disparity, foremost amongst them Transgriot, ENDAblog and Planetransgender. What is the nature of this disparity? In Maryland, concurrent bills were put before the state legislature...a marriage equality bill and a transgender protections bill.

Of course, when it comes to marriage equality, the tactic of incrementalism is unacceptable. Nothing short of full equality in marriage will be championed or accepted. Yet, the bill which would make discrimination against trans individuals illegal was amended to remove the “public accommodations” language. A transgender protections bill without public accommodations is essentially worthless. Most trans activists would rather see no bill than one so poorly constructed. Yet, Equality Maryland has been fully supportive of this incremental approach for the trans rights bill, even thought that kind of strategy is deemed unacceptable when we talk about marriage equality.

In Maryland, public accommodations protections for gay and lesbian individuals were passed in the early ‘90’s under the aegis of across the board anti-discrimination legislation. Yet, here we are in 2011 and Equality Maryland supports a bill which denies trans persons the identical protections it’s members enjoy. Insisting that something is better than nothing subverts the very safeguards that gay and lesbian persons would insist upon for themselves. And to only advocate legislation mandating full marriage equality rather than work towards a compromise (read incremental) civil unions language appears to make a fairly clear statement. Incrementalism is acceptable for the trans bill, but unacceptable for the marriage equality bill.

The trans community is merely asking for fair and equal treatment, made all the more difficult when our allies neither understand nor support our core issues.

Next month this column will address the issue of public accommodations and why it’s such a critical part of any anti-discrimination legislation.