Antonia D'orsay

ENDA & Hostile Work Environments

Filed By Antonia D'orsay | April 20, 2010 2:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Barney Frank, bathroom scare, Congress, ENDA, hostile work environment, potty politics, rumors, Trans, trans awareness, transgender, transsexual

After discovering that my laptop has some rudimentary video capabilities, I thought I'd spare ya'll the usual wall of text post and give you a long video. You get to see me in my usual form when I write posts in the process.

Three videos, though. Wall of Text "transcript" afterward.

Part two:

And the brief end, inclusive of my being, well, my usual silly self:

The "transcript":

Hi!

I thought that for my column this time, I'd try something a little different from the usual "wall of text" that I'm somewhat known for producing and try a little bit of the dreaded multimedia thing.

Cue spooky music. Oh, wait, that's right, I can't do spooky music yet. Dang it. At least I've got my teleprompter...

As the title suggests, today's post is all about the wonders of ENDA.

Please call your Senators and tell them to vote for ENDA. Tell them if they aren't voting for ENDA, they are voting for making tens of millions of people suffer discrimination needlessly.

Now, I'm saying that as a good little girl. I'm saying that, even though I know at the same time that there's been some sort of change to the bill, and it deals with Trans people.

The things said in general have to do with various aspects of gender expression. Representative Frank said something about dresses and mustaches.

The thing that's most interesting, though is the little piece about that bugaboo of Trans lives: modesty spaces.

Modesty spaces are those segregated areas like showers, locker rooms, restrooms, and similar spaces where personal modesty -- and, in particular, American Modesty (cause us US culture types are seriously weird about these places) -- is at a premium.

There is another argument, and I'll cover it later, as I want to look at this bathroom thing right now. Especially since discussions like this are, in fact, talking about the risk that I, personally, pose to other women.

I was thinking about this whole bathroom thing, you see. I've put some thought into it, and about the only compromise that I can see being reached -- the one most likely to seem reasonable to Cis folk -- is to say that an employer gets to decide what restroom the trans employee will use.

Now, that might be a special restroom set aside for the use of the trans people. Now, this isn't the sort of thing like a "handicap" spot for those with some sort of disability, where the change is done on the benefit of the person singled out. Nor is it like the voluntary aspect of giving up a seat on the bus to a woman, or child, or senior citizen -- again, to the benefit of the person singled out. You see, in those cases, there is a need for such. A recognition that they have some sort of difficulty.

This is a special place set aside because the particular people make other people uncomfortable. Like folks who didn't want to drink water from the same fountain as people with darker skin, or use the same restrooms as people with darker skin.

But that will sound reasonable to people because to a lot of people the above was perfectly reasonable for decades.

A compromise like that would further single out the individuals working there, since it would likely be a kind of makeshift space. Hell, it might even be in a separate building, and require extra time and a reduction in productivity to be used.

It's been accepted before. Make no mistake, it will be accepted again.

Then there's another possible version of this: the employer could just say if you shake, you use the men's room. That is, if you have a penis, you use the men's room.

That's also the sort of thing that will seem very reasonable to many people who are cis. Indeed, it will seem like a perfectly reasonable request to a lot of people, unless, of course, they are the sort that you can see in front of you right now telling you this.

That kind of rule would have me go into the men's room.

Now, Let's say that happens at a place where I am employed. I'm an out activist, so odds are pretty good that the people I work with will have at least some idea of what's going on with me, even though I do not generally discuss my medical history with other people.

So, following the law as some are kinda hinting about it reading, an employer could comply without risk of being sued for discrimination on the basis of gender expression or identity by telling me to use the men's restroom.

Me. The person who earlier tonight went down the Walgreen's; a short, five minute walk away from here and a five minute walk back. Dressed and looking exactly as you see me now, with catcalls, honking, and even an offer to give me a ride to where ever it was I might be going.

It's important to recognize that, as well, because usually people think of some kind of stereotype when they talk about these things, and I am pretty close to a certain kind of stereotype. High Femme, and often it's said that people like gals like me because we somehow are "more feminine than other women" except they don't say "other" they say "real".

I'd pop my boobs out right now but I'd never live it down, lol.

Now let's really look at that. The idea of me going into the men's room.

I'd saunter in, and most likely be stopped or told to leave by several guys who would be either literally dribbling all over themselves or embarrassed and trying to cover it up (plus the inevitable one who would say something stupid and wave his winkie at me). I'd hear comments about my breasts, probably hear one or two muttered "faggot"s now and then, and then I'd likely have to deal with a few people who actually would try to sneak a photo to share later online of the "chick with a dick" by sliding phones under the stall or peeking through the door and so forth.

And while it would be nice to think that it's just the young ones who do that, I'm afraid it isn't. It's the older ones, as well.

To be fair, there would also be the few who just ignore it all and pretend like nothing is happening, and then the occasional one who would tell the others to stop being assholes and maybe one who would even guard my modesty.

Now, that wouldn't end there, either. Outside the bathroom, there'd be conversation, jokes, comments, sly glaces and grins, and the assorted other stuff that happens in places where people get uncomfortable about someone in their midst or something going on. Of course, always out of sight of the boss, who would be utterly innocent of all possible stuff except for the fact he let's it go on.

And then there's me. The sort of gal who does a pretty damn good job at her work, and who also has, shall we say, a certain level of ability in making her thoughts and displeasure known even in the face of people who will use social power dynamics against her.

(Flashes a smile)

What do you think I'm going to do in an environment like that? Especially given I've got medical costs to pay for. In large sums.

Why, I'll sue for a hostile work environment, of course. Completely separate from the provisions of ENDA. And with the ability to actually get damages (since ENDA does not allow one to sue for damages). As in a lot of money. Given court costs and legal expenses, probably something in the neighborhood of half a million.

And make no mistake, the sort of stuff I described above is, in fact, a hostile work environment.

Now, a lot of trans people are arguing that we need to see the language, and that ENDA could be bad for us, and all the rest. And I am among those people, but I'm starting to change my mind about that, because the more I think about the potential for such a wonderful thing happening (that is, my suing a company for a hostile work environment and getting the funding I need to pay for some medical stuff), the more I kinda like it.

Indeed, the more I think it's a lot like something else I'm working on: a business that hires only gender variant people. Because it is not illegal to do so. Nor will it be, even if ENDA passes, since ENDA only applies to those companies with 15 or more employees, and the places I would do such a thing are strictly those without any sort of gender expression or identity laws.

So think about that exception idea -- that "bathroom compromise". Because the company you work for may suddenly find itself facing lots of lawsuits for the creation of a hostile work environment by following the law -- which would mean that the law is, itself, actually responsible for the creation of that hostile work environment by enabling the continued discrimination and hostility that is faced by trans people already.

Which kinda makes me wonder just how useful that "compromise" really is.

And the answer is a lot more useful than people may realize...


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Even with the changes I've seen, I still support ENDA. Sure, I'm not happy about them, but it's a step forward. There will always be companies that discriminate, even with harsh anti-discrimination laws, but putting protections in place makes it more difficult. And I want it to be more difficult for companies to fire LGBT individuals (including the T). And even with the stupid loopholes being put in there, ENDA would set up a barrier to discrimination. At the absolute least, it's precedent that transfolk deserve employment protection.

Margaretpoa Margaretpoa | April 20, 2010 4:34 PM

Apologies for this in advance but the legacy of my father demands this of me: It's "y'all", not "ya'll". That's a common though inexplicable mistake. Y'all is a contraction of you and all, with the apostrophe holding the place of the o and the u in "you". If you write it as "ya'll", you are contracting a word that starts with a y and an a that means "you", a word that does not exist. Now, please return to your regularly scheduled discussion and again sorry that my dad helped make me so anal about it.

De nada, ;)

Us Arizonan's use ya'll fer ya (which is what we say fer you) plus all, so it's ya all round these here parts.

But We's know 'bout them strange southerner customs and such. Ain't nuttin t'worry 'bout t'much, ya see...

That's funny, Margaret. I always change it myself when I see it, but for some reason my Firefox spellcheck says that way is correct and our way isn't.

@Toni - I thought you were gonna whip out that boob there for a minute. I could read your mind.

I was thinkin it...

then again, I was thinking about how Leigh and certain other people would react to the video the whole time as well. Just cause I can't wait to read the blog stories...

Margaretpoa Margaretpoa | April 21, 2010 6:39 PM

Actually my firefox is the other way around. I can write y'all all day long without a little red line, not so with ya'll.

Hey toni

ENDA stands for ENDAtrans ...

Don't give up your day job eh!

Leigh

Nah. ENDA stands for "screw it up and the Trans people start burning small villages".

*Then* you'll *really* have something to worry about ;)

A trans-woman made one of the most remarkable and brave gestures on behalf of the Gay and Lesbian comunity today, Leigh. Her name was Autumn Sandeen. She had nothing to gain and everything to lose and still did it.

This Lesbian stands behing keeping the T in LGBT and the T in ENDA. We owe it to Autumn

Transfolk do that everyday.

Not as pointedly, I'll grant, and usually without as much risk (and I know that risk well enough to have described it recently), but they still do it.

Thank you, Maura, for seeing that -- and for being a strong ally.

Maura - she had more to lose than you might think. Many of the trans people who die in custody do so before any trial. Just being arrested means a possible death sentence for us.

Yes, we usually get "segregated from the general population". Sometimes though, that's just so we make easier targets.

Inquiry into a death, Coroner J Abernethy, Wednesday 21 July 1999. Ref: W308 201/99 JI-D1.

December 1997. After an appearance in a Local Court, bail was refused and Ms M. was remanded in custody. Late on 22 December she was transported to a remand and reception centre where that night and into the morning of December 23 she underwent induction assessment. She was identified as transgender by the welfare officer and it was determined she should go into a “protection” wing. Having spent December 24 in court Ms M. spent December 25 and 26 in “strict protection”. During this time she was brutally raped at least twice during daylight hours. The attacks were so vicious that two other prisoners took the unusual step of reporting the incidents and giving sworn evidence. On December 27 Ms M. was found dead in her cell hanging by a shoelace.

That's what we risk by being arrested. Not charged, not convicted, just arrested.

Autumn knows this. She knows that objectively and statistically speaking, this was far more dangerous for her than someone leading a patrol in Afghanistan or Iraq. I'll have to crunch the numbers for the USA, but it looks like about a hundred times as dangerous as doing a full tour of duty in the front-line infantry there.

In Australia, we've had more trans people die in custody before trial than have been killed in Iraq. And Australia is trans-friendly compared to the USA in most respects. Here such deaths at least make the papers.

SarasNavel | April 20, 2010 9:35 PM

Vene, even in California, which has wonderful anti-trans-discrimination laws, people get fired for being trans. It's not called that, of course, but sitting close enough to HR I get to hear them talk about the "sinners". ENDA will not be the oh-so-dreamy panacea you are painting it as, even despite its compromises. It will however likely harm trans people if the "compromises" are true.

On the other hand, considering being trans is a medical condition with all sorts of very personal details (some of which directly regard bathroom use), I'm pretty sure that (again, if the wording is as we fear) this ENDA may instruct employers to potentially break HIPAA.

From the http://www.cancerandcareers.org website:
"Briefly, the act guarantees your employees access to health insurance, including the ability to tote it to another job, and prohibits any discrimination based on health status. The act gives employees rights about the privacy of their health information and establishes rules about who can get access to that health information.

While many employers and managers may think they don't need to worry about HIPAA because they are not covered under the law, which requires "covered entities" to comply, that's not exactly so. Technically, the act defines a "covered entity" as a health care provider that conducts certain transactions in electronic form, a health care clearinghouse, or a health plan.

And the health plans include employer-sponsored group health plans as well as multi-employer plans (with some exceptions, such as a group health plan with less than 50 participants administered solely by the employer that set up and maintains the plan). So that, indirectly, means you as an employer or manager must be sure the HIPAA provisions are met."

Maybe you should date her after she gets out Maura..

She can show you her invention to enable women to pee standing up...

not that she needs it.

Can you show me your invention that enables you to be a dick without having a dick?

That was inappropriate.

It was also remarkably uninformed.

Leigh has a long history of strong dislike for Autumn, but I'm surprised she would attribute an invention of some other woman to her.

Normally Leigh doesn't give Autumn even that much.

Then again, Leigh intentionally misgenders people, so it's not like one really needs to take her all that seriously...

"Then again, Leigh intentionally misgenders people"

Toni .. You know that is not true. In the statement above I used "her" and "she" in reference to Sandeen, and on your own blog and elsewhere I have defended you strongly against those that have misgendered you. A retraction is in order ...

..and yes I have no stomach for Sandeen, even as a martyr

Leigh

Most of your statement is pretty accurate. You have stood up for me, and usually you are pretty good about avoiding such, but I have but two words :D

pregnant man

I am married Leigh.

Like it or not, like her or not, Autumn Sandeen did an extrordinarily brave thing. I do feel badly for those of the trans community so insecure that they cannot embrace what Autumn has done, this truly heroic act.

Well Maura....

I am not of either of those communities, and I am hardly insecure, nor am I so brainwashed as to believe that transgender/glb activism does anything for classic transsexuals other than to discredit them in the eyes of the wider human community, and open their lives to unwanted scrutiny.

-Leigh

Ah, another of the 'classic transsexual' contingent, sounds like? If so, I finally am beginning to understand this exchange...

Not knowing much about her, I would be interested to know what Autumn has done that you disapprove of? It's always interesting to learn more history and more about GLBT and 'classic transsexual' politics.

I think that explains the situation very well. I've found men are less likely to get the modesty thing.

Since I don't know what the language of the bill will be, I admit I'm speculating. But I don't think it's outside the realm of possibility that if an employer can tell a trans woman to use the broom closet, they could tell a gay man to as well. I base that on recent arguments against repealing DADT where it's been suggested that separate accommodations need to be made for gay and lesbian service members. All of the sudden, straight guys need to be protected from the leering gay guys in the shower. And whatever is true for gay men, is true for lesbians.

We're like dominoes. When one goes down, we all go down.

And you know, there's this: http://www.queerty.com/butch-lesbian-files-white-hot-discrimination-suit-20071009/

Yep, butch lesbians have their own bathroom stories. I do, as well as my girlfriend. But nothing serious as she just laughs and I just roll my eyes if questioned. But the fact remains if people want to make trouble, and realize they can, they will. And they'll be more inclined to when we stir shit up.

Whatever compromise we make is where the backlash will hit, and it will hit all LGBT in states that don't currently have an ENDA (especially the southern ones where they get pissy when a federal civil rights law is passed and try to test it).

This cynicism has been brought to you by my years living in South Carolina where they don't care which part of the LGBT you're in.

Melissa Dunagan | April 21, 2010 5:06 AM

Where I work they make me use a port of john. Which is cold in winter and as hoy aa hell in the summer. And if it is raining I have to wade though the mud.

Evangelina | April 21, 2010 6:14 PM

Carol, we don't know each other and as far as I know have never exchanged views. You seem like a reasonable person so rather than go into detail about the behaviour and what can only be described as "antics" of Autumn Sandeen I would invite you to read up on this "charector" and make up your own mind. Me and Toni have had our "run ins" in the past and I have little doubt will do so again. BTW visual media is not your most flattering forte Toni I'd avoid it in future if I were you.
In defence of Leigh, she has never intentionally misgendered anyone and Toni, the pregnant man is an oxymoron so to use that episode against Leigh is entirely invalid since pregnancy in biologicaly created males is physically impossible.
On the issue you raise here, ENDA is little different to equality legislation already enacted elsewhere in the world. Unfortunately the reality is that it has failed to bring about real change. In the social climate currently in place in USA I doubt this bill will have the desired effect. It will not change the underlying attitude of the religious and redneck bigots America breeds. It lacks teeth and litigation will only make lawyers even more wealthy.
Carol folks like Autumn Sandeen have actually not helped change attitudes much which if you read about Autumn I am sure you will discover for yourself. If anything, it's made things worse. Classic transsexuals by and large ask for no more and certainly no less than any other woman/man in society and ask to be allowed to be left alone and left out of psuedo gender politics altogether. However TG and Gay organisations and pressure groups have hauled us in under their umbrella against our will. We are used for political expediency it is that we object too and nothing more.

Hi Evangelina:D

How's things?

Yeah, I'm aware that ya'll find visual media to not be my forte. Then again, ya'll find me not to be my forte, so eh, lol. What I find odd is that the people who generally say that generally have disagreements with me, whereas people who don't give a damn disagree (and of course, there are those who think it is my forte, but, for the record, I'm kinda closer to your thoughts on the matter).

I will point out that calling a pregnant man and oxymoron (thusly, something that doesn't exist in actuality being dogwhistled here) is misgendering on your part, and, therefore grounds to have your response TOS'd in the future. She has indeed done so, and while I happen to like Leigh a great deal, that doesn't mean that she didn't do so.

I generally stay out of ya'll and your ongoing issues with Autumn. I will note, however, that thus far none of you have enough conviction in your beliefs to put them on the line or put yourselves at risk. She does.

As for your being "hauled in" against your will, that's patently absurd but surely sounds good, even if it is a logical fallacy that you keep trying to support your house of cards with.

You are correct -- the law won't change the minds of those who dislike us. It's not meant to do so, however, which is where you fail in your understanding and comprehension. Additionally, I will point out that if it lacks teeth, then litigation lawyers really won't be making much money off it.

And yeah, we'll likely have more run ins in the future. But I'm not worried about it -- as I think we all realized the last time we had a discussion (on "your" territory) that ya'll generally wouldn't think I was telling the truth if I said the sky is blue.

Which has had the rather enjoyable aspect of us not running into each other for a while, save for Anna, but then she's had her ration from ya'll as well.

Still, now I have reason to visit.

Hello Evangelina

You may be a paradigm of refinement. I definitely believe someone who is transsexual will want to live uncompromisingly as the sex transitioned to. I also think you have valid concerns about the effect ENDA could possibly have, or already has had, on a person with transsexual history.

Your catty comment about Antonia's visual presentation, however, is mean. There is a lot of nurture in anyone's social development, regardless. In these debates it is very frustrating to take note of the way the issue of sex(biology, nature) is skirted. There is gender, however. It is learned behavior.

Beating someone over the head with the "you are not good enough stick", can often be abusive to someone who was raised in a gender role that is contrary to their nature. Apparently, you don't have enough sensitivity to appreciate what some people have to endure while they're being raised.

Anyway, I thought Antonia did fine. I just bristle when I hear Simon Cowell , Heidi Klum comments like yours. This isn't Project Runway. I would love to see how you do in front of a camera.

I have to modify my comment, somewhat. I only saw a little of the video, and just read the text. It is so long, I don't know exactly what you are saying, Antonia. I have to go back and do some work on a bathroom I am painting in a minute. Yesterday, I was at a Starbucks dressed in my grubby work clothes. There was a line outside the woman's rest room. There was one woman behind me. Another came along and asked if the "boys" room was open. She asked me if I wanted to use it before she did. I am so insecure, I said, "no, go ahead." But really, it is so stupid.

I am self employed. I can imagine having problems at certain workplaces. I can't live in stealth. I just don't think I should need ENDA to go to the toilet, even if I support it. The toilet thing has never been an issue for me. If what your saying is there should be third sex facilities, I would consider it a waking nightmare. I don't want to live that way. Please, tell me that is not what you are saying. I don't have time to analyze this post.

Jesus christ edith ...

I know evangelina. She is a good friend of mine. She would never think of giving her creds so I will do it for her.

Evangelina (not her real name btw) is a happily married woman. She is so past what you refer to as "stealth", that even her husband of many many years does not know her history. We are talking a woman that not only looks like a woman (without surgical enhancement) but if someone told you she was a woman of history, you would call them a liar.

Evangelina's history is an incredible story, one that if known would certainly parallel that of her good friend Caroline Cossey (otherwise known as Tula, the bond girl). Evangelina is, in every respect, what is medically termed a true/classic/transsexual woman of history.

No, she is not advocating a third sex bathroom. She advocates, as I do, an end to the transgender/glb appropriation of all transsexual narratives. You would do well to learn about real transsexuality, outside of the gay definition. Then you may begin to understand why women like evangelina are so annoyed at this missapropriation of the term by those who are clearly not suffering it.

-Leigh

Sorry Leigh,

I didn't mean to blaspheme or sound sacriligious. My second post was addressed to Antonia. I leaped before I looked. Sorry. Should have kept my mouth shut until I read everything more closely. I think I sort of understand what Antonia said. I don't know how this ENDA thing is going to be interpreted or what the possible unintended consequences could be. I am very confused about the "language" people refer to from time to time. It doesn't seem anyone knows what it is going to be and how much it may change over time.

Where I live there has been a non-discrimination law for years. It is a non issue. I don't think anyone is going to want to go into a shared space they feel uncomfortable in. I don't think there has been one incident where I live.

I can see a problem for anyone whose history is known, however. As I recall, Caroline Cossey had trouble with marriage issues in the U K. I was born in Tennessee. I could be as wondrously glamorous as Catherine Deneuve and I would still have a problem in certain instances.

I think I may have read some stuff from the person you are referring to. I was put off by her condescending tone in the post I replied to, that's all, as far as what I wrote above.

Although, I don't know the person you are referring to, I can say, yes, I am sure many women are annoyed about a lot of things. I think you may be a little ahead of yourself with the glb/transgender appropriation where I am concerned. Who knows? The internet is a nutty place where people are overwhelmed at the thought there are more than a handful of categories people might fall into. I don't want to get into that, though. Why make a bad situation worse?

LOL!!!

How appropriate that the first commentary I come across is Radicalbitch/Catkisser/etc etc giving her thoughts on the video.

Natch, it's yet another shot at appearance, lol.

I mean, come on gals, surely you can be more creative...

Tab Hunter’s Ghost | April 21, 2010 9:19 PM

Antonia, you look great in the videos. Your last post about having the “discussion” was probably one of the best blog posts and best comment threads I’ve ever read on Bilerico. Bravo!

As to Autumn and the classic haters, well, yawn. You and Autumn have certainly taught me a lot and won me over as a staunch ally. Autumn’s courage and dignity are admirable and heroic to me.

I don’t understand why the classic trans folks feel the need to come to LGBT sites and try to stir up trouble when their main argument seems to be that they are not “us”, never were “us”, don’t want to be “us”, and they actually don’t really like “us” at all.

The animosity towards non-classic trans people is pretty obvious and clear but seems to echo the shades of skin color and “passing” arguments I’ve experienced through my African American boyfriend’s family.

Yet these non-“us” people still keep coming back to speak to “us". Strange, to me. I guess that’s something I’ll add to my list of things I need to understand better.

Keep up the good work! An more vlogging! : )

I watched and then I read your diatribe.

First the simple point. Don't have a bright light on behind you when taping.

Now the problematic point. You may have singlehandedly done what no other combination of efforts has ever accomplished. Namely convinced me that ENDA should proceed on a non inclusive basis. In both presentation and words you have shown it is just too sticky. I pray the opposition does not show your tapes at the House hearings.

lol Ok, Deena, I'll bite :D

How was it I managed to achieve such a thing? What about the particulars of the point I raised here make you think that?

All these comments would probably make a better film than "Go Fish".

Toni, in the transcript (I didn't have time to watch the videos), you said "ENDA does not allow one to sue for damages." That is wrong.

Section 10(a)(1) of H.R. 3017 (the House version of ENDA) provides that the Equal Employment Opportunity Commission will have the same power to enforce ENDA as it has to enforce Title VII (the federal ban on sex and other discrimination in employment), which includes the power to file suits for damages on behalf of victims of discrimination. Similarly, Section 10(a)(6) states that federal courts have the same power to enforce ENDA as they do to enforce Title VII, which includes the power to award damages for illegal discrimination. Finally, Section 10(b)(1) states that individual victims of discrimination under ENDA have the same right to sue and collect damages as they would have under Title VII. (As far as I know, the Senate version of ENDA is identical on these issues.)

Consequently, there's no need to resort to a hostile workplace claim under Title VII if a trans woman is harassed and ridiculed in the workplace for being trans and having to use the men's restroom (if that is, in fact, permitted under the version of ENDA finally enacted, something I am not yet willing to concede). Such harassment will be a straightforward violation of ENDA if allowed to continue by the employer for which the victim can sue for damages.

Outstanding :D

Thanks, Abby. I've been referencing a related Bill that's slightly older, and hadn't updated my notes.

Incidentally, I raised these points on the basis of it actually passing -- and simply explored possibilities (acknowledging in the video that there were other possible ways of handling such).

In the end, my point is one that I expect to make a little more clear in a future post, but for the sake of brevity will note here:

It doesn't matter what the language says. As long as it is there, there will be a way to make it work for us.