Rebecca Juro

Current ENDA Language Regarding Transgender Workers Revealed, Concerns Mount

Filed By Rebecca Juro | May 04, 2010 4:00 PM | comments

Filed in: Politics, The Movement, Transgender & Intersex
Tags: Congress, ENDA, politics, transexual, transgender, workplace protections

During his show Sunday night, TransFM founder and host Ethan St. Pierre received a call-in from International Foundation for Gender Education (IFGE) Executive Director Denise LeClair, who revealed for the first time what the current language regarding transgender workers and bathroom usage currently being considered by the Congress may mean in a practical, everyday sense.

Among the key points:

* Employers will not be permitted to force a transgender employee to use a bathroom that is opposite of their gender identity, but they also will not be obligated to allow that employee to use the bathroom that corresponds to their gender identity, as long as (currently undefined) reasonable accommodations are made. In other words, employers will be allowed to segregate transgender employees and create the modern equivalent of "Whites Only" and "Negro" bathroom facilities specifically intended to exclude Transgender-Americans from the rest of the workforce.

* These rules may only be applied to transsexual employees who are currently transitioning, and those who have already completed the transition process will not be affected. What we don't yet know here is what will be the requirements to be considered as fully transitioned. There is concern that if Sexual Reassignment Surgery (SRS) is required in order to be considered fully transitioned this will create a situation where those who are healthy enough and can afford SRS will enjoy at least some protections in the workplace, while those transpeople who cannot afford SRS, don't want it, or are not eligible candidates for SRS for medical or other reasons will continue to be denied full civil rights as Americans in perpetuity.

Right now, this is really all we know and it should be pointed out that none of this is carved in stone, all of it is negotiable and probably is being negotiated right now in Congress. This is just a read on what they're currently talking about.

For more of my take on this, check out my new podcast, #13.



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Wow - we've been waiting to hear about this for a long time now. It sounds to me like the bathroom provisions are tracking the dressing room provisions of "not inconsistent with." That's kind of where things have been with most employers anyway, if you look at the courts and the actual practices of employers around the country. I am glad to hear there is no hard and fast rule about who has what plumbing. That being said, I'll have to think about this a bit to decide how I feel about it. Thanks for the scoop, Becky

What about an orkie? It is sometimes used to get ones birth certificate changed. What about trans men? What will they require to be considered "post-op?"

I truly trust Denise, but this is situation where I want to see the words in black and white. This is too important to react based on this information alone.

Mara Keisling | May 4, 2010 6:01 PM

Monica, you are right: we need to see it in black and white. Speculating before there is final language is tempting but irresponsible. We are all very eager to see the final language, but there simply is no final language yet. Once the committee releases the language, we will know what amendments the Congressional proponents of the bill want. Then it will be debated and possibly amended further in committee. I will say though that, based on all of the advocacy that NCTE has been doing and the meetings I personally have been in, there will likely be language relating to access to restrooms, but there is no reason to think that we will be seeing these worst case scenarios people might speculate about. Scaring people should be left to the right wing.

As soon as the committee releases the language, NCTE will very quickly provide facts as well as a legal and practical analysis.

Mara, I fully agree that we need to see the language in black and white, but I also believe that anything that gives us an insight into the thinking of Congress on this issue sooner rather than later is an advantage, especially given the history of this bill.

Since those involved in the negotiations around this bill aren't talking to the community about what's going on we have to get our information where and as we can. Personally, I just wish the process were a little more transparent overall.

These issues need to happen on the House and Senate Floor not behind some closed door committee. We will see Bathroom language, Really ? Well that is NOT acceptable , who made that deal ? They sure do not speak for me. for me That right there is a non starter. in my point of view. Worst Case Scenerios Mara ? We have already seen them - we get murdered in the wrong places.
It feels Patronizing to be told to relax its gonna be ok, I don't see how it can be OK , if we have bathroom language regarding who or who cannot use which bathroom, and its not applied to gays or lesbians. ( or is it ?) WE NEED TO KNOW WHAT IT SAYS NOW, the committee minutes ???

Why did that get even put up as a bargaining chip without full sunlight ? The Bath Room issue can be sucessfully argued , but hiding behind closed doors is not going to help the cause.

You'll need to talk to leaders in congress if you want a more open process.

I think I would almost be more interested in knowing what the definition of "are currently transitioning" is going to be. Transition is not not exactly a well defined concept.

Kathy Padilla | May 4, 2010 6:37 PM

We're not getting rid of the pension plan, we're just going to have one version for current employees and a defined contribution plan for new employees - and a higher contribution required for the new employees.

You all go argue among yourselves for a while as the clock runs out.

Angela Brightfeather | May 4, 2010 8:12 PM

I am coming away with a distinct feeling that in the future, we will be dealing with a GLBT community that actually means Gay, Lesbian, Biseual and Transexual and that the other gender diverse people will have to accept the definition of "other".

This is a hair's width of being out of the pale and denying other trans people who do not commit to SRS for some reason, any rights at all. In fact, why isn't anyone talking about the Pdeter Oilers of this country and still will be fired for being Transgender, even if they don't express at work? It seems to me that if ENDA creates it's own special class of Trans person, why wouldn't any employer who finds that a CD is working for him, fire that person right away? Where is the beef in this law if it only applies to and benfits post-op TS's?

Well, I told you so months ago and it looks like the compromises are proving me right.

So if ENDA does pass with these adjustments, then our opponents have succeeded in destroying what we have known as the Transgender Community and TS's while being protected after SRS, will be saying what the NY Pride Agenda said 13 years ago, "we will come back for you." HRC will bring up the "incremental" argument and "taking little steps" argument and CD's will be forced back into the closet, this time maybe even deeper than before, having been separated legally from the 10% of the former Trans community that will be no more. That should satisfy a lot of people in the Gay, Lesbian, Bisexual and Transexual Community of the near future who won't have to deal with those perveted men in dresses crowd any longer. In fact, I am quite sure that this enforced and legalized marginalization will make it even more likely and acceptable for others to fire people who aren't willing or can't go through with an irreversible operation.

Angela, as noted above, nothing is carved in stone yet. What I've reported here is just what they've been discussing, according to Denise Leclair. There is no confirmation that this represents the final language or even that they've determined what the final language even is.

I don't like the prospect anymore than you do (as I laid out at length in the podcast), but lets not make any assumptions until we have more than this to go on. To my way of thinking, this certainly should put us on alert, but I want to see what happens next.

Kathy Padilla | May 5, 2010 9:28 AM

"In fact, why isn't anyone talking about the Pdeter Oilers of this country and still will be fired for being Transgender, even if they don't express at work?"

I'm not sure, but it might be because the transitioning language being discussed wouldn't effect those people. And the folks in those situations would have the same coverage they had under the existing language. The gender expression provisions haven't changed. If someone is gay outside of work, would the sexual orientation provisions cover them? Of course.

Angela, as Kathy said, the limitations being discussed are not intended to limit the scope of the ban on employment discrimination based on gender identity or sexual orientation. In other words, even with these modifications, under ENDA, Peter Oiler could not have been fired for cross-dressing on his own time, since that behavior is still covered by the definition of "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." H.R. 3017, sec. 3(a)(6) (emphasis added).)

Instead, the changes are intended to clarify ENDA Secs. 8(a)(3) and (5), which address the employer's duties with respect to "shared shower or dressing facilities in which being seen unclothed is unavoidable," and the enforcement of dress codes, for "employee[s] [who have] undergone or [are] undergoing gender transition." Sec. 8(a)(3) says that it doesn't violate ENDA for an employer to discriminate with respect to such shower or dressing facilities, if “the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity” at the time of employment for someone who transitioned to another gender prior to employment (e.g., a trans woman who applied and was hired as a woman), or at the time the employee notifies the employer that s/he “is undergoing transition.”

Similarly, Sec. 8(a)(5) says that an employer doesn't violate ENDA by enforcing sex-segregated dress and grooming codes as long as the employer allows someone who has already transitioned or “is undergoing transition” to adhere to the standards that apply to her/his post-transition gender. Thus, the concept of transition is simply used to determine when the employer is required to acknowledge the employee’s transitioned status (e.g., the date the employee goes “full time”) with respect to showers, dressing rooms and dress codes. With respect to all other aspects of the person’s employment, the employer has to ignore the employee’s gender identity or expression.

I agree that whether or not an employee has had SRS (or any other surgery) should be irrelevant under ENDA and that choosing SRS status as the “trigger” point with respect to showers, dressing rooms and dressing codes would be unfair and, perhaps, a violation of equal protection. Instead, all that should be required is a notice by the employee that, as of X date, s/he is transitioning and will be, thereafter, living and presenting at work as Y gender. Again, however, all that that notice would do is inform the employer when it has to regard a formerly “male” employee as female, or vice versa, with respect to those limited areas. It doesn’t change the employer’s obligation to refrain from gender identity protection in all other aspects of employment.

Correct me if I am wrong but this doesn't appear to require an employer to prohibit certain people from either men's or women's restrooms but simply provides a safe harbor should an employer choose to do so. One employer may find it compatible within the company to allow those "just beginning transition" or even "dedicated cross dressers whose sexual identity remains their birth sex" into which ever restroom they choose to use while another may not. Am I interpreting this incorrectly?

I agree, Deena. An employer is always permitted to go further in respecting an employee's gender identity than the law requires, so long as, in doing so, the employer doesn't violate the right of other employees to be free from discrimination.

How would this affect trans folks who have already transitioned, yet haven't had surgery for whatever reason? Would a "you keep the hell away from my pants, I'm going to pee where I please" defense work?

Legally, I mean. Obviously each situation will be different, but will this open up trans people to panty checks by the employer?

SarasNavel | May 5, 2010 4:23 AM

That's a good question, isn't it? If this follows as it appears to be currently negotiated, are all trans (any flavor) people going to be expected to give up personal medical information to their employer that is protected by HIPAA for everyone else? What's to stop a sick and twisted Xian HR 'droid from insisting that a butch cisgender woman either provide proof of vagina ownership or be forced to use the Men's room? Same for any man perceived to be even slightly effeminate. There's a good chance that this could open the door for even more harassment than before for all LGBT people...Good Job, Barney!

From what Rebecca said, Sara, this would only apply to people who are transitioning in the workplace. Second, HIPAA does not apply to employers, only covered entities, which are health providers and health insurers.

Kathy Padilla | May 5, 2010 9:44 AM

How would that apply to employers who self insure?

SarasNavel | May 6, 2010 2:00 AM

From http://www.hhs.gov
"if an employer has any kind of health clinic operations available to employees, or provides a self-insured health plan for employees, or acts as the intermediary between its employees and health care providers, it will find itself handling the kind of PHI that is protected by the HIPAA privacy rule."
It's that last one, I think, that worries me the most as more than half of the employers that I've worked for in the last decade fall into that category.

My point regarding bathroom usage was that despite the intent of only being applicable to those who are transitioning on the job, this seems like a perfect cover for the harassment of anyone that is not fully gender normal. Kind of the opposite of the purpose of the bill.

Sara, that only means that they must keep the information away from their non-benefits employees, and are not permitted to disclose or use the information for any purpose other than insurance claim adjustment. I don't see how ENDA would affect that, regardless of language.

What's to stop a sick and twisted Xian HR 'droid from insisting that a butch cisgender woman either provide proof of vagina ownership or be forced to use the Men's room?

I think you mean butch cissexual woman. Her driver's license and birth certificate say Female. Easy enough to produce.

If she's butch enough for it to be a question then she's really not cisgender.

Personally, I would laugh and skip into the Men's room.

And then I would file a complaint for discrimination based on perceived sexual orientation. Discrimination isn't a science. It's based on perceptions not truths. Genderqueer people get discriminated against because people perceive them to be gay. Whether they are or not doesn't matter (although they are very likely to be). It's the motive for discrimination that counts.

If that is in fact the language that is going to be included in the bill, it is deeply disappointing to me and makes me question my support for ENDA. Why the heck would I want to support a bill that legalizes segregation? How awful. Oh boy.

Each and every federal legislator should be segregated for a few months so they can experience how demoralizing, disappointing, angering and humiliating it feels. It is one of the most horrible, crushing things I have ever experienced -- and CONTINUE to experience. :(

Kathleen_of_Norfolk | May 4, 2010 11:52 PM

I would not stress too much. I sort of doubt that this is making it to the President's desk. That said, it is a little better than the last ENDA. The next version will probably be a little better than this one.

Stonewall Girl Stonewall Girl | May 5, 2010 12:17 AM

I've heard a lot of things from a lot of people, but since it is not in black and white, I've said nothing.

While I would prefer no bathroom language at all, as we were able to do in NJ, the bottom lime is that the rights of the employee must be respected and the corporate culture must make reasonable accommodations.

Another reason we need some political power! anyone stepping up?

The more salient question--at least for me--is why we as transpeople continue to consent to our exclusion from the restrooms appropriate to our projected gender. I was the first person to transition at my law school and I still remember the conversation I had with a very pompous Vice Chancellor of Diversity (who assured me that "as a gay man, I totally understand you") when he suggested that I use the "family" restroom. I smiled sweetly and said I would as soon as all my African-American colleagues were required to use their own special drinking fountains. Needless to say, no more was said about the "family restroom". I've used the ladies' room since I went F/T in 2005 through law school, in private practice and beyond.

Stonewall Girl Stonewall Girl | May 5, 2010 12:35 PM

That is my point! Kudos to you that you were in a position and in an environment where you had the will and the ability to exercise that power! You enabled yourself and helped others!

We need a lot more folks doing that! We in NJ were proactive and had established enough power and capital so that we had no bathroom issue to deal with by the wing nuts.

Meghan Stabler Meghan Stabler | May 5, 2010 2:09 AM

Rebecca

You raised a number of legitimate concerns along with examples on your Podcast. While the community is anxious to see the markup language offered to HR3017, all I can ask is that we keep a note of the concerns and hold off until the language is publicly available. Don't forget there are others to the far Right and Christian Right that are also eager to get their paws on this so they can destroy it.

As Mara says, "there is no reason to think that we will be seeing these worst case scenarios people might speculate about." Once the community sees it, people can review, check their list and decide if they want to support the Bill, or not.

Having worked directly with 8 companies (small and medium size) last year on policies for transitioning employees(ftm and mtf) we used published guidelines and recommendations for bathroom use- none of them segregated their employees. All made accommodations regardless of the transitioning status of the employee. None of them have reported issues from that decision and only 3 employees have since undergone or are currently planning to undergo GRS. All affirmed their gender identity and updated their personnel and state records accordingly and within the laws of the state.

As we know there are many 'stages' of a transitioning individual. Some will never complete full transition due to choice, finances or medical reasons. We should support EVERY one who has made the decision to affirm their Gender Identity, regardless of their status.

Kathy Padilla | May 5, 2010 10:19 AM

Waiting till the language is availble to discuss possible ramifications may not leave enough time to respond to issues or provide legislators some feedback on how various permutations may be perceived by stakeholders. No one is suggesting we wait to discuss possible DADT solutions until the final language is available. I'd suggest the situations don't differ significantly as both cover workplace environments where personal modesty concerns come into play.

"A Mara says, "there is no reason to think that we will be seeing these worst case scenarios people might speculate about." Once the community sees it, people can review, check their list and decide if they want to support the Bill, or not."

I don't see whyanyone would want to paint themselves into a coner where the only option is to not support such a needed piece of legislation. That's a strategy almost certain to insure a suboptimal solution.

Hey - BP said there was no reason to assume....well...you get the picture.

Kathy Padilla | May 5, 2010 11:15 AM

"Hey - BP said there was no reason to assume....well...you get the picture."

By which I mean - unintended consequences will always occur. They are by their nature, unintended and often unforseen. The more people with the greatest variety and depths of experiences having input into a process producing this language, the less likely one will slip by unrecognized. And the greater variety of proposed solutions that can be considered.

I am fully transitioned, and I have not had GRS. Period.

Ariablue | May 5, 2010 3:30 AM

If it goes through like that, it sounds like the APA will have full control over the issue as far as trans* is concerned. If you comply with their rules, you are protected. If not...

The question then becomes how sympathetic your therapist is. Right now we have a whole cottage industry devoted to helping people transition to varying degrees, if you look at surgery as the endpoint. It has been a freewheeling and open process, where people of any type were able to get their licenses changed and that sort of thing in many jurisdictions with relatively little fuss.

But what happens when these therapists are reigned in by insurance requirements? No matter how sympathetic, the therapist may not be in a position to help anymore. The DSM is going to have a profound impact on these psych professionals and their careers will be on the line. How many will buck the new rules?

This is the problem with misguided activism, and I think that things such as the trans drive on ENDA and the DSM were mishandled to the point that they accomplished the opposite of what the activists wanted. The goal was wrong, and the approach extremely alienating. It was utopian politics at a time when the public was not receptive to new ideals. And the public mood has been terribly misread- or completely ignored.

I suppose we'll see how it comes out, but if anything it is likely to get more restrictive, not less. And despite all the differences, I and probably others are not thrilled about the APA being involved in this at all. But I believe the activism that has been practiced has actually slowed rather than accelerated the removal from the DSM. It will probably be 2 revisions before it is out completely now, perhaps in two stages similar to how they handled removing homosexuality.

Ariablue | May 5, 2010 3:31 AM

If it goes through like that, it sounds like the APA will have full control over the issue as far as trans* is concerned. If you comply with their rules, you are protected. If not...

The question then becomes how sympathetic your therapist is. Right now we have a whole cottage industry devoted to helping people transition to varying degrees, if you look at surgery as the endpoint. It has been a freewheeling and open process, where people of any type were able to get their licenses changed and that sort of thing in many jurisdictions with relatively little fuss.

But what happens when these therapists are reigned in by insurance requirements? No matter how sympathetic, the therapist may not be in a position to help anymore. The DSM is going to have a profound impact on these psych professionals and their careers will be on the line. How many will buck the new rules?

This is the problem with misguided activism, and I think that things such as the trans drive on ENDA and the DSM were mishandled to the point that they accomplished the opposite of what the activists wanted. The goal was wrong, and the approach extremely alienating. It was utopian politics at a time when the public was not receptive to new ideals. The public mood has been terribly misread- or completely ignored.

I suppose we'll see how it comes out, but if anything it is likely to get more restrictive, not less. And despite all the differences, I and probably others are not thrilled about the APA being involved in this at all. But I believe the activism that has been practiced has actually slowed rather than accelerated the removal from the DSM. It will probably be 2 revisions before it is out completely now, perhaps in two stages similar to how they handled removing homosexuality.

@Mara, you said:

Monica, you are right: we need to see it in black and white. Speculating before there is final language is tempting but irresponsible.

Then tell us what it is, SINCE YOU HAVE SEEN THE LANGUAGE. NCTE, NGLTF, and HRC have all seen the language (that Barney Frank himself admits to "tweaking"). You are the person that has taken the mantle of our "voice in Washington". Waiting until the bill goes to committee is too late and you KNOW THIS. Remember 3685-86? Once it was introduced, nothing stopped it from being changed... not even Tammy Baldwin and United ENDA could get that done. So waiting isn't an option.


@Becky, you said

Since those involved in the negotiations around this bill aren't talking to the community about what's going on we have to get our information where and as we can. Personally, I just wish the process were a little more transparent overall.

Damn straight! The reason you're not hearing anything is because the orgs of the National Policy Round Table (of which NGLTF, NCTE, and HRC all sit on) know they cannot repeat 2007, that they all have to be on board with whatever the language is. In the words of David Smith, "we don't oppose civil rights legislation." The clarion call has been put out that there will be no division.

Meghan, you said:

Having worked directly with 8 companies (small and medium size) last year on policies for transitioning employees(ftm and mtf) we used published guidelines and recommendations for bathroom use- none of them segregated their employees. All made accommodations regardless of the transitioning status of the employee. None of them have reported issues from that decision and only 3 employees have since undergone or are currently planning to undergo GRS. All affirmed their gender identity and updated their personnel and state records accordingly and within the laws of the state.

The changes to the language of the bill aren't needed. You only need look to the other side to see where the fear mongering on trans women started this time around, from Lafferty over at TVC:

"We try to be delicate about how we talk about it, but even Barney Frank has admitted that, right now under this bill, transgenders can show their genitalia in a ladies room,”

Barney Frank's rants about "penises in showers" are infamous. This is a good distraction but any real examination of it comes up empty. Not one sex crime by a transgender woman has EVER happened. NOT ONE DOCUMENTED CASE. Can you say the same about gay or straight men? There's no rational case for it, and from the outcomes of the repeals tried in Maryland and Gainesville, there's no public support for any kind bathroom segregation.

@Mara, your credibility is running very thin with me. You claimed on the Michelangelo Signorile Show "LGBT Town Hall" that NCTE got the Social Security Administration to stop sending out no match letters. This is NOT TRUE! How do I know? Because it's happened to me twice in the last year. My current employer has told me that if I do not get my documentation to match my SS documentation, that they will be FORCED by DHS/SSA policy to FIRE ME. If you don't believe me, I'd love help in not being fired and I can provide my employers contact information. Unless you can do that, please stop saying you've stopped the no match letters from being sent out.


This isn't an abstract issue for me, it's my life. I want more than anything for ENDA to pass, but anything close to "separate but equal" isn't something I can support.

Please tell us what the language is. No word games, no "I'm optimistic" or "I'm hopeful", just tell us what the language is. It isn't a big secret that you've seen the language. I've had multiple people on the Hill and in DC tell me this. It isn't a secret to those that know who to ask. People deserve to know, before supporting the bill. JUST TELL US!!!!!!!!!!

I do not think transparency is irresponsible.
The real question is: Responsible to whom?
I am responsible to the transgender community, and only the transgender community, because they pay my salary.
"He who pays the piper calls the tune."

I think Mara, NCTE, HRC, and everyone else doing "all the advocating" have proven themselves ineffectual as leaders in the struggle for equal rights, especially regarding ENDA.

A lot of talking has taken place. So too has a lot of acquiescence. This is not leadership. This is an example of people doing plenty of fundraising, going to "meetings" and receptions, getting face time in the media, and forgetting who they supposedly represent.

Transparency is an issue that scares anyone who has put themselves in a position to proclaim that they are The Voice. Accountability is the boogieman they don't want to deal with.

The facts, Mara, are that you have failed us in the past, and almost certainly will this time as well. The community you supposedly represent, by large measure, do not trust you. This is your own doing.

I agree with Denise. When people beg for money to support themselves and their organizations, they are morally required to answer to those people they took money from. The more prominent organizations, such as NCTE, HRC, etc., don't act as though this were the case.

I think we're viewed as such a small population that we don't matter. Maybe we don't count for big dollars and large voting blocks. But we're people. Human beings trying to get along in this world, just like everyone else.

And just like everyone else, we hate it when people continually blow sunshine up our asses, and then fail at the things they've promised us that they'll do.

Show us the language.

Robyn Webb, CTS | May 6, 2010 8:33 AM

None of the minutiae concerning anyone's stage of transition is, or should be at issue here. Why is the one segment of the community that shows no history of sexual activity in bathrooms being singled out for this unacceptable scrutiny?

If, in fact there would be any concern about any bathroom imropriety on the part of any segment of this community, one would think that there would be the concern that workplace men's rooms are liable to become "glory holes," wouldn't ya think?

Simply put, nothing less than unconditional trans inclusion is acceptable. Period.

Get your drift, but gay men, trans or otherwise, can put in a day's work without getting a quicky in the men's room. Plus I don't think "glory holes" means what you think it means.

And people do have that concern, and it's when it comes to DADT that they'll mention it. But I think people have been working for long enough with out gay men that they don't really care much anymore about that.

So, what's up with Barney's latest comments?

http://www.rollcall.com/issues/55_129/news/46002-1.html

If any language pertaining to genitals makes it into the bill, we will be WORSE OFF FOR IT.