Guest Blogger

Bulletproof

Filed By Guest Blogger | March 06, 2009 2:00 PM | comments

Filed in: Politics, The Movement, Transgender & Intersex
Tags: bulletproof, ENDA, gender expression, gender identity, hate crimes against LGBT people, Kathy Padilla, transgender, transsexual

Editors' Note: Guest blogger Kathy Padilla has been advocating on transgender issues since 1984. She's been a key leader in passing local civil rights legislation, served as a delegate to the 2004 Democratic Presidential Convention and as a Commissioner on the Philadelphia Police Advisory Commission.

BULLETPROOF: adj.

  1. Impenetrable by bullets.
  2. Informal. Impervious to assault, damage, or failure; guaranteed: a bulletproof method; bulletproof arguments. Without flaws or loopholes.

I wanted to follow-up on my guest post from last week discussing concerns over language being proposed for the hate crimes legislation. bulletproof_vest.jpgThe definitions of gender identity & expression in the Hate Crimes Bill were conflated and seen as less well crafted then the language in last years ENDA; leaving the very real possibility that gender expression would be covered - but not gender identity. This conflation would potentially leave those who medically transition out of the bill.

Since then, Pilar Falo, the Legislative Assistant assigned to this area in Representative Franks' office graciously spared a few minutes to speak with me on the issue.* I began the conversation by noting that I was following up on the issues I raised on Bilerico Project.

Ms. Falo confirmed that the language in the Hate Crimes Bill 111th Congress will stay the same as it was in HR in the 110th Congress. It won't match the ENDA language from the 110th Congress, which many consider superior.

If No One Objects

She confirmed that the advocacy groups (ACLU, The Task Force, NCLR, NCTE & HRC) met with offices on the Hill last week and this language (from the 110th Hate Crimes Bill) was reviewed. These groups were asked if anyone had an objection to the language and could provide an example where someone might not have been covered under the language from last years Hate Crimes Bill. None of the groups raised an objection with an example at this meeting.

I followed up and asked if these groups had raised objections to the language in previous meetings and she confirmed that they had. The language hasn't changed since they raised these objections. And no one from these groups has stated that they were convinced their previous objections were groundless. It could just be that they maintain these objections, but won't voice them going forward out of process & political considerations. It would be helpful for those groups having the greatest credibility with the trans communities to speak to the issue. Process shouldn't trump product where our rights and possibly our lives our concerned. It's precisely because we're not bulletproof that the language must be.

One of the reasons given by some in DC for the differing definitions in ENDA & Hate Crimes of gender identity & expression is that the bills come from two distinct areas of law - employment & criminal. We discussed this and Ms. Falo confirmed that there are no differences in these two spheres or in case law that would require different language or make one definition preferable in the criminal arena but less adequate in the employment sphere. She noted though that the legislative processes differed as the bills originated in separate committees.

One of the objections being raised to changing the Hate Crimes language to match the better language from last years ENDA is that people have voted for the language previously and that changing it could cause problems and delay the process. This isn't a very compelling argument given that people also approved the introduction of the ENDA language last year. And since the ENDA language isn't yet reintroduced - it leaves open the possibility that people would then say that they would prefer to stick with language that had just been passed in the Hate Crimes Bill. Process is important - but not if it has the potential to undermine the utility of the bill to the degree that has been suggested.

Some of these same people are saying they have assurances that the ENDA language won't change from last year and this is reason to just go forward with the 110th's Hate Crimes language in this year's bill. This is troubling for a number of reasons; it's a blatant acknowledgment that the ENDA language is superior; they can't publicly state that this "deal" has been made and the assurances aren't documented. Political realities change and the precedent of the lesser language can start to become accepted as the "safe" way to pass bills going forward.

History Has Shown Us

Our history has shown that many courts will torture language to get the result of excluding lgbt people. In the Ulane case under Title VII - the characteristic of sex was interpreted to include transsexuals. Then other courts determined sex did not include "change of sex". Others then reinterpreted gender expression to be included under sex but not the characteristic of sex if the person is transsexual. Some are now revisiting the issue and saying discrimination due to a "change of sex" is covered under sex.

Just about any combination of covering and not covering gender expression, sex & gender identity can be found somewhere in one of these decisions. This wouldn't be the first time courts distinguished expression from identity in ways that exclude people. And this is exactly the type of muddle and extensive litigation we hope to avoid by having bulletproof language.

We don't want to risk the arguments being made that the Hate Crimes Bill doesn't apply in a case like Gwen Araujo's murder if the defendant alleges they didn't care about the victim's expression or mode of dress but were motivated by their gender identity and by their bodies. This could have the unintended effect of promoting the trans panic defense.

We don't want to risk the language being imported into ENDA and having people argue that they fired someone for the same reasons and that the law doesn't apply. We don't even have to go outside our community to find examples of people who support gender expression equality, but might be happy to have an excuse to discriminate against transsexuals. Jim Forratt comes to mind.

Why take the chance?

*(I'd like to thank Ms. Falo for taking the time to outreach to community members such as myself and for her straightforward answers to our questions. She represented her office well and is the kind of person we all hope to reach when calling our representatives.)


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Thanks for the very informative post! Clearly Shakespeare was wrong about roses.

Kathy Padilla | March 6, 2009 4:47 PM

Thx!

"If the truth doesn't save us, what does that say about us?"

- Lois McMaster Bujold,
writer (1949- )

Since outspoken transvestite activists are now insisting on the "right" to invade even places of female nudity (such as showers.......I am NOT talking bathrooms). I shall opposed any ENDA language that does not address this. It is beyond unacceptable to almost everyone not trans in the county, it's the point where inclusive minded and trans supportive women say....woah!!!!!

Over and over this has been denied as an objective. That is patently a lie. For the past year trans after trans has stated it IS one of the objectives and it will lead to a backlash that will negatively effect women of transsexual history. As a woman of transsexual/intersexed history, as an ardent second wave feminist I will fight this.

Some have been trying to bring this issue up before this only to be ignored. Now we have no less than Rebecca Juro calling any women who finds showering next to someone with a penis a "bigot" and "needs to get over it". Sorry, women are supposed to grin and bear this?......because men wouldn't? When are you people going to see the world as it is?

..the last paragraph should read "..any woman who objects to finding herself showering next to with a penis..........

Kathy Padilla | March 7, 2009 11:23 AM

I don't know of any law in this country where the issue of unavoidable nudity in the workplace hasn't been addressed to provide for privacy. No one has to worry about showering next to a vagina or a penis if they find them objectionable. Unless, of course they're endowed with the genitals they find offensive.

Of course - in hate crimes - it doesn't apply. And as enda is only an employment bill - it doesn't address public accomadations. Only showers required in the workplace - I'm having difficulty coming up with an example of a required workplace shower - more so one without privacy. And these issues are usually not directly stated in the law itself, but in regulation or implementation guidelines. Personally - I wouldn't want a required group shower of any type. But - that's just me.

Please provide documentation as to where this requirement has passed & been implemented locally & to where the sponsor of the bill (Rep. Barney Frank) differs from your opinion.

Kathy Padilla | March 7, 2009 11:56 AM

For timely comparison, the PA House introduced it's non-discrimination bill this week.

"Chairperson Stephen A. Glassman announced today that the commission is strongly urging the legislature to pass House Bill 300, which was introduced Wednesday, and would amend the Pennsylvania Human Relations Act to prohibit discrimination based on sexual orientation, gender identity and expression."
-snip-

"It defines gender identity or expression to mean actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual's assigned sex at birth."

http://news.yahoo.com/s/usnw/20090306/pl_usnw/human_relations_commission_urges_expanding_pa_anti_discrimination_law

Gerri Ladene | March 7, 2009 12:04 PM

Kathy, are you saying, the Bill to be presented to Congress has been modified and that Transexuals will be thrown under the bus in order to promote total Sexual Orientation, with religious limitations, only protection still allowing for discrimination? Is this going to be a "Smoke and Mirrors" attempt at making us think this is an END-All type of Bill when it really is more of an END-Some Bill? It's beginning to sound like more political appeasement to the tunnel vision crowd of TVC! I think your absolutely right in saying that the Courts will torture legal language by individual interpretation of the person behind the Bench!

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Thanks for the post Kathy, it was done very well.
I just want to correct you on one thing. You have Pilar Falo listed as the Legislative Assistant to Barney Frank when in fact she is the Legislative Council to Barney Frank.

The issue of the language has me concerned for a number of reasons and I don't think I can, in all good conscience, lobby for the language from the hate crimes bill in the 110th Congress but will instead, opt to lobby for the better language which is the language that was in the ENDA bill 2015 from the 110th Congress.

Just to be clear, here is the language for both
hate crimes bill that will be introduced in the 111th Congress and the preferred language for hate crimes which is taken out of the ENDA bill 2015.

Hate crimes language:
`(3) the term `gender identity' for the purposes of this chapter means actual or perceived gender-related characteristics.

ENDA language: (6) GENDER IDENTITY- The term `gender identity' means 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.

Thanks again for bringing this issue to our attention.

Kathy Padilla | March 8, 2009 12:13 PM

Thanks for the correction Ethan! Ms. Falo is indeed the Legislative Council to Rep. Frank.

Having different organizations supporting different language and not supporting the version of a bill being considered by Congress is something I really hope can be avoided. I understand how strongly you feel - I obviously share these concerns. But, we saw how unpleasant this was just a year ago - and how badly it served the community.

That Ms. Falo confirms our concerns were also shared by the advocacy groups in DC supports that these concerns are very real. As a community - we should get ahead of the the issue - before it gets ahead of us.