DE-EVOLUTION

The good news is that, over the past two years, many state and local jurisdictions have enacted laws making discrimination against trans individuals illegal. The bad news is that those who would prefer to keep discrimination alive and kicking (not hard to figure out who these people are) have a new tactic; well...not really new, but one they’ve taken to exploiting as fully as possible. It’s the kind of effort one might describe as extreme, yet many on the religious right have perceived they are losing the battle over hearts and minds and they’ve become desperate. And we all know desperation foreshadows crazy tactics.

The idea they are utilizing is to walk back legislation...if a city or county passes anti discrimination laws, well, then the state can countermand those laws by passing a bigger bill which somehow supersedes the lesser jurisdiction’s ruling(s). Or, state’s courts can find the legislation unconstitutional.

As mentioned, this is not really new. The ballot iniative leading up to Romer v. Evans was a sort of precedent which right wing and fundamentalist groups and legislators are currently not hesitating to utilize. Colorado Constitutional amendment 2 was introduced in reaction to legislation passed by several local jurisdictions barring discrimination on the basis of sexual orientation.

According to attorney, Dr. Jillian Weiss, legal scholar and professor at Ramapo College, “in 1996, the U.S. Supreme Court heard a case involving a Colorado ballot initiative amending the Colorado Constitution "precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their 'homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.” The US Supreme court held that this proposed amendment to be unconstitutional.

Fifteen year hence, in 2011, we’ve seen several attempts to undo legislation which seem to fall in the same bailiwick as Romer. Earlier this year, the city of Missoula, MT, home of University of Montana, faced a challenge at the state level regarding anti discrimination legislation it had enacted adding protections to its already existing laws for sexual orientation and gender identity. The state’s Republican legislature pitched a fierce battle to overturn the Missoula ordinance, but finally lost. It must be noted here, and in other instances of “walk back” legislation, that the concept of lower jurisdictional autonomy which the Republican party continually espouses...the “smaller government” meme...makes a complete hypocrisy of this kind of government interference.

A similar, yet somehow different, scenario played out in Maine over the past few months. Based on a Maine Human Rights Commission finding, Orono, ME public schools had allowed a trans teen to use a gender appropriate bathroom in school. LD 1046 would have mandated that this student would have to use bathroom which not only did not match her gender presentation, but which ultimately would have been potentially dangerous for her. Her other choice was to use a private bathroom which would serve to ostracize her from the other students. Furthermore, as reported in the Lewiston Sun, LD 1046 “would have prevented transgender individuals from filing complaints against schools and other public institutions for restricting access to bathrooms and locker rooms.” Fortunately, LD 1046 failed, 61-81.

This brings us to Tennessee and SB 632/HB 600. This bill was introduced, and eventually passed, as a response to a Nashville city ordinance preventing businesses with city contracts from discriminating against its LGBT employees. A few weeks ago, Tennessee Governor Haslam signed the bill into law, thereby undoing Nashville’s protections. But, that wasn’t the entire substance of SB 632/HB 600, which now effectively precludes local Tennessee jurisdictions from passing ANY anti discrimination ordinance which is not fully aligned with State of Tennessee law as already written.

Advocacy groups are weighing in. Chris Sanders of the Tennessee Equality Project released the following statement. "We are disappointed that the majority in the General Assembly and
the Governor have given their assent to SB632/HB600, which overturns a Metro non-discrimination ordinance, prevents any city or county in Tennessee from adopting a similar law, and redefines "sex" in the Tennessee code to the detriment of transgender people. You can't
create jobs by allowing discrimination. And you can't say you're for smaller government when you take away the power of citizens to determine how their local tax dollars are used in government contracting. All Tennesseans deserve to be free of job discrimination based on sexual orientation and gender identity, and we will continue to work toward that goal."

Efforts to thwart this de-evolutionary effort include lawsuits aimed at challenging the constitutionality/legality of SB632/HB600. Former director of Lambda Legal, Abby Rubenfeld, has joined with several other attorneys to bring suit against the state’s passage of this heinous legislation. And, according to The Tennessean, “State Sen. Jim Kyle has filed a non-non-nondiscrimination bill —that’s what I’m going to call it anyway — that would reverse the
legislature’s reversal of Metro’s nondiscrimination ordinance.”

I will refer you to Dr. Weiss’ insightful interpretation which makes the case for why SB632/HB600 is unconstitutional.


Bilerico

She writes, “the key issue in terms of the constitutionality of SB 632 is whether its denial of rights to any groups outside of the approved state list has a rational relation to some legitimate state interest.” Tangentially is the issue of neutrality and how and why the bill was crafted and its intent, which was obviously targeted against the trans community. Within the language of the bill is a definition of sex which is blatantly discriminatory: " ‘Sex’ means and refers only to the designation of an individual person as male or female as indicated on the individual's birth
certificate.” (Dr. Weiss)

Of course, the possibility exists that challenges to SB632/HB600 may exceed the ability of Tennessee to adjudicate and will end up in Federal court. And, given the nature and composition of the Sixth District, as well as the US Supreme court, there are hardly any guarantees regarding the disposition of laws states undertake to pass whose intent is to undermine equality in a way which seem to defy established law.

A PERFECT STORM

One Maryland trans activist called it a “perfect storm”. Barely a week after MD HB 235, the Gender Identity Anti-Discrimination Act, died in committee, a brutal and unconscionable attack on a Baltimore area trans woman occurred at a local McDonalds restaurant. This event captured the nation after the video of this unprovoked beating went viral. Sadly, this was not a one in a million occurrence...or even one in a thousand. This kind of brutality has become virtually commonplace. You can bet that, everyday, somewhere, a trans person is in the midst of a verbal and/or violently physical attack.

In dealing with trans discrimination issues, there are often several recognizable elements that typify these events. Most common are employment issues, public accommodations issues, and hate crime issues; but, as set forth in my column, “Injustice at Every Turn”, there are many particulars wherein trans persons find they have not been accorded a level playing field. We don’t always have a clear path to determining the core issues...it’s often a combination of many factors.

What went wrong in this Maryland McDonalds? Where does the culpability lie? And, what can we do to put an end to this needless and senseless violence that makes the lives of many trans persons survival obstacle courses?

Many have called for accountability regarding this incident. Many have pointed the finger at McDonalds. It’s certainly true that the fast food chain fired the employee who originally filmed the four minutes of hell for the victim, Chrissy Lee Polis. And it’s also true that they issued a statement condemning the actions of the two customer perpetrators. Regardless, I find myself wondering if McDonald’s still shares some blame for this incident.

Yet, is this really about public accommodations? Ms. Polis reported that one of the perpetrators had made a disparaging comment about her (the victim’s) use of the women’s restroom. “That’s a dude, that’s a dude and she’s in the female bathroom.” The fact that the beating took place in a public establishment lends credence, whether deserved or not, to charges that there were public accommodations concerns. That a McDonalds employee made the video and posted it on You Tube furthers that assumption. Some have made the case, however, that even were Maryland to have had enacted public accommodations protections in HB 235, incidents like this one would still occur. And this may very well be the case. But, at least mandated legal protections would go some distance into establishing that vicious behavior motivated by hate would have serious and remedial consequences should establishments be found culpable.


So, even though it would be convenient to call this a public accommodations issue, that’s really only part of what should concern us here. And, even though it’s apparent that malice and hatred played a huge role in the events as they unfolded, it would be incorrect to look at this event merely through the prism of hate crimes and hate crime enhancement (the DA has decided to handle this as a hate crime).

Change.org published a petition from one individual demanding redress from McDonalds. “Despite a decent record of workplace discrimination protections for gays and lesbians, McDonald's lacks standard policies for protecting transgender individuals. McDonald's does not include gender identity or gender expression in its anti-discrimination policies, nor do they require employees to go through diversity trainings that cover the subject of gender identity and gender expression.”

Furthermore, McDonalds has a deplorable track record regarding the hiring of trans individuals. I corresponded with Denise Leclair, president of the International Foundation for Transgender Education (IFGE), about this problem. She responded, “McDonalds has promoted the fact that for a tremendous number of people it has been their entryway into the job market. They have run commercials to this effect, showing successful businesspeople who say that McDonalds was their first job. They use this to position themselves as an American institution, like mom and apple pie. However, this is not true if you are transgender.

I have heard from countless trans women that they can't get hired there, and they have no corporate policy protecting gender identity or gender expression. If they are the gateway that they claim to be, then they are also defacto gatekeepers, locking an entire population out of the job market. The message is clear: people like you (trans) don't belong here.

If people in places like McDonalds had ever had a trans coworker, they might see trans
people as actual people, not just stereotypes. It might not have made any difference in the Chrissy Polis case, but maybe it would have. What I do know is that this is not an isolated incident. There have been numerous cases of discrimination against trans people in McDonalds, both as potential employees and as customers. It might be legal, but isn’t ethical, and the bottom line is that is it is simply bad business.”

The violent behavior at this Baltimore Mcdonalds may have been averted had the company pursued a policy of equal hiring practices and if local and national workplace protections (ENDA) were in place. Certainly, having trans employees goes a long distance in the education process, and may help to remedy the kind of ignorance which is part and parcel of hate motivated crime. It’s possible that, had a trans individual been employed at this McDonalds, co workers would have had a different response than to film and watch while an innocent victim was being pummeled and dragged across the floor by her hair!

A comprehensive perspective on this incident and others like it makes it clear that efforts to reduce and/or remove discrimination require we factor in workplace protections, public accommodations protections and hate crime protections. It should be obvious that education is not only the mortar by which we craft legislation, and public policy; it’s our only hope to move forward towards a world free of ignorance and discrimination. But it’s hard to educate when you can’t even get your foot through the door.