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.
- Impenetrable by bullets.
- 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. The 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.)