Editors' Note:Guest blogger Kathy Padilla has been advocating on transgender issues since 1984, when she volunteered at the Outreach Institute of Gender Studies and Transgender Week (formerly Fantasia Fair); the longest running lgbt community event in Provincetown. She's been a key leader in passing local civil rights legislation, served as a delegate to the 2004 Democratic Presidential Convention, served on Governor Rendell's transition team and as a Commissioner on the Philadelphia Police Advisory Commission.
Perhaps the greatest hopes of the lgbt communities on the national level are the inclusion gender identity/expression and sexual orientation in federal employment nondiscrimination legislation and hate crimes legislation. We place a good deal of hope in the new administrations commitment to equality, in the changes in Congress and in the solidarity the lgbt community exhibited via the 391 United ENDA organizations around the country that pushed for only legislation inclusive of all members of the lgbt communities.
That a hastily thrown together coalition of smaller, mostly outside the beltway groups could persuade some of the most powerful people in the country to reconsider moving forward on the “bad bill” was so unexpected that several votes had to be taken in committee to confirm the fact. This was so unlikely that the organizations in opposition can be forgiven for scratching their heads and wondering how they wandered onto the set of Mr. Smith Goes to Washington reading the Claude Rains part.
We’ve moved so much further along since then. The President supports inclusive legislation (including gender identity and expression along with sexual orientation) – as did all of the Democratic contenders for the Presidency. The Democratic Party Platform now supports inclusive legislation. Rep. Frank has been making very positive statements on the degree and sufficiency of the ongoing educational efforts transgender people have brought to the Hill and has hired a respected transman as his legislative assistant. Joe Solmonese has even been trying to explain that his support for dropping transgender people from the bill was really a brilliant, dare I say brave strategy to support the inclusive bill. Bilerico Project contributor Donna Rose drops her usual even tempered commentary on this amusing bit of revisionism at her own site in Guts or Hypocrisy? You decide.
It's not often Donna cuts loose like that.
Without rehashing this too much, I think Joe should revisit the definition of counterintuitive. It requires the proposition be both contrary to the conventional wisdom and true.*
Sadly, while we seem like we’ve moved forward – a bad bill is still a bad bill. Even if it says it includes gender identity. And that may just be where we’re heading again – a bad bill. Because as always; the devil is in the details - the “details” this time being the evolving definition for gender identity and expression in the Hate Crimes Bill. Because it’s not enough for a bill to just appear inclusive, the language of the bill must truly be inclusive.
It’s been known that the House is currently considering three options for defining gender identity and gender expression in the hate crimes bill this session. There are several that would make it a “bad bill” – and not just for the Hate Crimes Bill. It sets the standard for ENDA, the language would likely be imported directly into ENDA and it would be replicated in whatever local legislation gets passed in the future; so it’s a bad bill that may become several bad bills. Reports indicate that there have been heated discussions among policy makers on these issues, though the largest GLb t organization has been uncharacteristically quiet. Reportedly preferring a bill (any bill) pass, regardless of it’s adequately covering all transpeoples. A De facto replication of 2007.
Here’s what’s under consideration:
One has to ask – why consider changing the ENDA and Hate Crimes definitions which have been extensively vetted by all of the advocacy groups, the legal groups and the Congress so recently? And why are these new definitions bad?
The new definitions can generally be said to cover gender expression but not gender identity. Which in the real world would present the likelihood that gender variant gay, straight and transgender people who don’t medically transition would be covered by the Hate Crimes Bill (and ENDA if it imports the language). Transsexuals would not be covered. I should note that I don’t even play a lawyer on TV; so I hope the people who do so in the real world will correct, expand or clarify my laypersons description of the issues.
The redefining of identity to mean characteristics (in this case gender expression) is something that case law has already addressed in Title VII cases holding that expression does not equal identity; in those cases racial and ethnic identity. These were expressions that the plaintiffs associated with their racial and ethnic identities; such as hair styles and the use of their native languages but that might not be considered exclusively associated with those identities. The obverse would be applicable here – expression being covered, but identity being excluded. The history indicates that if expression only is covered in the legislation; unless one can concretely associate an expression with an identity, the identity wouldn’t be covered. It should be obvious - but the definition of gender expression discrimination is that it is based upon gender expression that isn’t associated with one’s identity.
An inclusive bill must have inclusive language to truly be an inclusive bill.
It’s a really odd turn of events, especially if one considers the history of legislation that has included or addressed transgender and transsexual issues. The usual history of these bills has been that legislators were sympathetic towards transsexuals but balked at including other trans peoples. In Philadelphia, when we were working towards revising the Fair Practices Ordinance to include gender identity and expression we had to push very hard to insure the language didn’t just include those of us who identify as transsexual (or with this in our histories) – the leaders from the trans communities involved were all transsexual identified and had to strongly say that we wouldn’t support the bill if it only included us. Our fabulous lgb and straight allies supported this position when we brought the fact of the language not being truly inclusive to their attention – but not the government agencies. If one looks at many local nondiscrimination bills, and other types of legislation around the country that have supported transequality (hate crimes bills and legislation to amend birth certificates); the hate crimes language has usually been more favorably predisposed towards including those who medically transition in the legislative process and the birth certificate legislation has been solely about those who medically transition.
So – why are legislators considering these definitions that don’t unequivocally cover all trans peoples? When things happen in politics one should always look at money - when they happen to trans people in politics – one should always look at bathrooms. If those who medically transition aren’t included, interests that want to continue to exclude transgender related health care from insurance coverage are mollified. And if those who medically transition are excluded – politicians can say the bathroom issues don’t apply to this legislation. It’s a lose-lose proposition. We lose twice.
To paraphrase Paul Simon; “Bad bills come and bad bills go, so what are you going to do about it is what I’d like to know”.
Contact the leadership of the Leadership Council on Civil Rights and ask them to only support inclusive legislation and that this means truly inclusive language in the bill.
Contact your Senators and Representative to ask them to support only truly inclusive legislation and that this means that the bill must have the inclusive language.
Go to the yearly transgender lobby day in Washington, DC and support and voice your support for all in all of our communities.
If you can’t go to the transgender lobby day, write your Senators and Representative to let them know you support truly inclusive legislation and your friends and family members visiting Congress. Fax your letter to their offices the day before those who can go arrive. (This would be a great project for United ENDA to consider spearheading.)
Contact the Board Members of the HRC from your area and ask them to vote to make it the policy of the organization to only support inclusive legislation with truly inclusive language. During the enda process in 2007 the HRC Board voted to leave these types of decisions solely to the discretion of their executive director. It’s time their Board spoke to this issue again. Ask your local LGBT press to interview your local board members on these issues now.
One of the criticisms made of the efforts towards inclusive legislation in 2007 was that the educational outreach to Congress was that we only used our voices towards the end of the process; the criticism was wrong then. Let’s make sure it continues to be so.