Thursday, July 17, 2008

Supporting the Transgender Non-Discrimination Act: Part 1

By Marc Korman.

I recently had dinner with my father and the transgender legislation ballot referendum came up. He had not heard anything about it, because despite being vocal and caring deeply about national politics, he has almost zero interest in the local end. After I started to give him an explanation of the issue, he cut me off and said “they don’t bother me, I won’t bother them.” Meaning he would vote against any effort to repeal the County Council-approved law because he does not really care if someone is transgendered because it does not affect him. I doubt convincing others will be as easy, so I thought I would offer some reasons why I oppose the effort to repeal the Transgender Non-Discrimination Act. Part one will deal with the policy grounds. Part two will deal with the political grounds.

Last year the County Council passed Bill 23-07, the Transgender Non-Discrimination Act. The Council memorandum on the legislation is available here. The legislation was controversial from its initial offering until today. Its opponents have petitioned a referendum of the legislation on to the November ballot. The two sides are still battling over the propriety of the referendum in court.

What The Bill Does
Call me old fashioned, but to find out what a piece of legislation does I like to read it, rather than what its supporters and opponents are saying about it. Their views can help inform, but cannot replace actually reading the text. So what does the bill actually do? The basic purpose is to provide transgendered individuals with the same protections as already exists to protect against discrimination based on race, sex, marital status, religion, ancestry, national origin, disability, and sexual orientation. The areas in which the bill seeks to extend protection are housing, commercial real estate, employment, taxicabs, and public accommodations.

So what does that protection mean? It means that a restaurant cannot refuse service to an individual because they are transgendered, just like they cannot refuse to serve someone who is black. It means that a piece of commercial real estate cannot be sold or leased for a higher cost only because someone is transgendered, just as more cannot be charged because someone is a single woman. It means that a taxicab driver cannot refuse to transport a person solely because they are transgendered, just as a taxicab driver cannot refuse to transport a person solely because they are disabled.

The legislation also charges the County Human Rights Committee with a number of educational, investigative, and informational tasks related to the new protections.

So Why All The Controversy?
I think to most people, those protections sound sensible. I have heard two major complaints about what the bill does. The first is on whether or not employers will be able to control the appearance of their employees. The second is about restrooms, which has monopolized most of the coverage of the legislation.

Regarding employee appearance, the bill specifies that an employer may require an employee to conform to reasonable workplace appearance, grooming, and dress standards. Insofar as those requirements do not violate state or federal law, are consistently applied, and allow employees to dress consistent with their gender identity, the business can impose appearance requirements. I believe that means they can require their employees to dress neatly and in sync with the rest of their employees, but still leaves some discretion and rights to the employee. I am not entirely sure why there is an issue here. I mean, why do I really care what my cable repairman, doctor, or waiter wear, as long as they act in a professional manner and do their jobs?

The more controversial issue is about restrooms. While being considered by the County Council, the issue of restrooms and locker rooms drew the most interest. There was a concern that the legislation would lead to men, or those who appear as men, going to the bathroom in the ladies room or vice versa. Or that men, or those who appear as men, would change in the women’s changing room.

Speaking from nothing but gut feeling, my impression is that even a transgendered individual would probably end up going into the changing room that most conforms with their physical appearance. The bill also makes no changes to sexual harassment or assault law, so if any individual, transgendered or not, acts inappropriately in one of these rooms then they could be subject to prosecution. But if that is not enough, the bill also specifies that the bill does not apply to accommodations that are distinctly private or personal, which the Human Rights Commission can easily define to include restrooms, locker rooms, and changing rooms. Enhancing that interpretation is that the Council removed a provision explicitly allowing transgendered access to accommodations consistent with gender identity, demonstrating that they did not intend to allow that type of access.

The purpose of the legislation is to offer transgendered individuals freedom from discrimination that already exists for multiple other classes of individuals. Thirteen states, DC, and 91 localities have all enacted similar legislation and yet, society has managed to survive while making life a little easier for those who are transgendered. I am certain part one of my post will draw its share of replies and perhaps criticisms, but I hope they are constructive on all sides of the issue and not dogmatic or personal. Have at it and see you soon for part two...