Representative Barney Frank, quoted in the Advocate, has said that the House Committee on Education and Labor will mark up ENDA sometime in February, with a full House vote in March. Right now, of course, the Congress Channel is all health care reform, all the time.
Representative Frank dropped a bombshell by noting that the revisions are not confined to the three issues of which we were previously told. Those were the issues of lawyer's fees for ENDA plaintiffs (originally yes but now no), whether a plaintiff could receive double recovery under multiple statutes (always a no), and whether a disparate-impact case (institutional discrimination) could be brought (also always a no). It didn't make much sense to hold up ENDA for those issues, as they were pretty easily resolvable. We had a pretty good idea that something else was going on, and we heard it was about trans inclusion, and that was flatly denied.
And now, here it is. Said Representative Frank: "There continues to be concerns on the part of many members about the transgender issue, particularly about the question of places where people are without their clothes -- showers, bathrooms, locker rooms, etc.," said Frank. "We still have this issue about what happens when people who present themselves as one sex but have the physical characteristics of the other sex, what rules govern what happens in locker rooms, showers, etc."
Notice that Representative Frank's statement now slips in the word "bathroom" in between showers and locker rooms, and says that all three involve people without clothes. Of course, that's not true, because people in the United States do not disrobe in public multi-use bathrooms.
To her credit, Mara Keisling, executive director of the National Center for Transgender Equality, said she did not believe it was necessary to address bathroom situations in the legislation. I agree with her. As someone who has worked with many employers, large and small, each situation is quite different. Bathroom situations cannot be handled by hard and fast rules, because employers in different part of the country and in different industrial sectors are subject to different cultural environments. There are many different types of surgical operations that are called "sex reassignment surgery," and particularly in the case of FTMs, very few opt for phalloplasty because of its notoriously poor results. Also, each building has a different situation depending on the number of multi-use bathrooms available. It is not a solution to make every transsexual or transgender person use a single-use lockable bathroom, because that segregates the transgender person, singles them out for different treatment, and can constitute a failure to respect their gender identity. Conversely, some trans people may want to use a single-use bathroom, in the first 3 months or so of their transition, because it makes them feel more comfortable.
This is a complicated decision mediated by many factors, and in my book on the subject of transgender workplace diversity, I devote dozens of pages to suggest the types of solutions that might work in different settings. How are you going to put that into a bill? One size does not fit all.
But it's pretty obvious that bathroom restrictions are not being considered because of any rational concern about the real practicalities faced by transgender people. If that were the case, provisions on this subject would have been in the bill when it was first introduced in 2006. They thought carefully about the dressing room issue, and came up with a solution that is workable and protects everyone's privacy. They left out the bathroom issue because, frankly, it doesn't belong in the bill. Regulations could easily be issued later by the Labor Department that could address some of the complexities.
No, these bathroom restrictions are not being considered on any rational basis. They're being considered to assuage the irrational fears that Congressmembers are feeling. Rather than educating themselves by calling experts on the subject who have dealt with these issues over and over and over again, rather than having even a single witness at the hearings who could speak to the issues, they are making up stuff. They are making up stuff based on their nameless, wordless fears and anxieties that have no relation to actual reality because none of them have even seen a work transition in operation. Even in Hollywood, when they write a script, they call in people who've done it to ask them what it's really like. Not in DC, apparently.
Interestingly, Keisling slipped another issue into the mix. She said that "most of the issues being discussed are more technical in nature, such as who pays for attorneys' fees, how to notify an employer when someone is transitioning to another gender, and blocking plaintiffs from recovering damages under two different statutes."
How to notify an employer when someone is transitioning to another gender? This could be as innocuous as noting that one ought to mention something to one's employer before transitioning, or it could be as onerous as imposing some sort of doctor's note that contains certain magic language. I'm glad Ms. Keisling is there keeping them honest, but I know the pressures to which one is subjected in Washington, and it doesn't pay to make enemies by opposing the powers-that-be too loudly.
As an outsider, let me just say right here and now: I will be opposed to any provisions that impose any undue burden on transsexual or transgender people, who are already going through a difficult enough process as it is. I don't know what you're thinking of coming up with, Chairman Miller, but I do not need permission to live my life as a transsexual or transgender person.
Trans people have existed since time immemorial, as noted in books such as Leslie Feinberg's Transgender Warriors, long before any sort of medical or surgical intervention existed. While some trans people choose to take advantage of medical help in transitioning from one gender to another, others do not. I believe that it is their right not to do so. I do not believe the government has the right to tell them to do so, or face negative consequences. In fact, our constitution guarantees a right to make private decisions without government interference. That right to privacy means that one has the right to live one's life as one sees fit, without the government overseeing and approving.
I have written a recent law review article on this very subject, which is coming out shortly in the Touro Journal of Race, Gender and Ethnicity. Its central thesis is that there is a right to gender autonomy -- a right of self-determination of one's gender, free from state control, and the right to self-identify as that gender, free from state contradiction.
I know there are many, both on the right and on the left, who will assert that no such right exists. But our Supreme Court has struck down laws outlawing gay relationships that make gay sex into a crime. They said it violated the right to privacy. They said no to the government claim that gay relationships are immoral. The Court agreed that the government has an interest in outlawing immoral conduct, but said that the government must show that the law is rationally related to its interest. Making sodomy illegal was not rationally related to the state's interest in morality. Is a doctor's note requirement in order for me to transition rationally related to some government interest? I don't think so.
Now, I do not know what kinds of restrictions Chairman Miller is thinking of putting on the right to transition. We are left to wonder from these vague hints that are coming out. I don't know if there's a doctor's note required, or a note from your mom, or some form that has to be filled out. I'm not against the idea that an employee should tell his or her employer before the public event of gender transition. I want to make sure the law works for both employers and employees. But I am against anything that is going to be demeaning to transsexual or transgender people. I await these developments with great interest.