Guest Blogger

Get the facts before you rant, or: ENDA will not exterminate trans women

Filed By Guest Blogger | May 15, 2010 2:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: bathroom, ENDA, jobs, LGBT, NCTE, protections, transgender

Editors' note: Ryan Blackhawke is a board member and the director of online communications at the Ingersoll Gender Center.

Those of you who have ever met me can tell you that I can be impetuous and impulsive. I can be a hothead and go off half-cocked before I have all of the facts. I also have very little patience for people who like to criticize others without lifting a finger to help and tend to be undiplomatic as hell. In other words, I will not couch my concerns with the niceties of a civilized society.

I've been guilty on more than one occasion of spreading rumors like the ones that I am about to discuss here. Just ask Bil. I was livid during Ron Gold-gate and slammed Bilerico everywhere that I could. And then I met Bil and got the facts.

That led to me feeling like an idiot, but I learned that getting the facts about something is relatively easy. It involves picking up the phone or meeting someone face-to-face and asking those who would know what is really going on. I'd much rather feel like an idiot with the facts than act like a clueless ass without them.

The people who are in the know don't live in ivory towers. They are very approachable, so that leaves no excuse for insults about their efforts.

So once again, here I sit in full on rant mode, about to lay some facts on you to counteract various rumors that are circulating around an inclusive ENDA. I'm really sick of having to point this out time and again but will continue to do so until it is no longer necessary.

I'm ashamed to say that I participated in perpetuating the rumors that have circled around "the bathroom issue" this week before I got the facts. Then I spent the next day trying to undo some of the damage that I have caused by laying out the facts in every thread that I could on Facebook. Some people listened. Others didn't and this post is for them.

Now, I realize that some people would rather criticize those doing the work instead of rolling up their sleeves and getting involved themselves. They slam our "supposed leaders" for "selling us down the river" on ENDA without realizing that they have the capacity to be a "supposed leader" themselves. It ain't rocket science, folks. Just roll up your sleeves and get to work. It is that simple. Do what our "supposed leaders" have been asking for over the past several years. Get involved. They can't do all of the work by themselves. Before you know it, you'll find your passion and will work tirelessly to create the change that you think needs to happen. You'll sometimes feel that it is a thankless job and you will be right. But you'll do it anyway because you will know that the work you are doing ultimately strengthens your community.

That, my friends, is how "supposed leaders" are born. Or you get fed up, call the people slamming you idiots because you get tired of hearing the lies spread about you and quit. Luckily, our "supposed leaders" haven't quit the scene. They have much more patience than I would if I was in their shoes.

Let's talk about some of these rumors first, followed by my observations as a political junkie and the facts as presented in a national conference call sponsored by the National Center for Transgender Equality and Transgender Law Center on May 10. On Facebook, I attempted to live-blog the call, summarizing what was being said to the best of my ability. Nothing that I summarized should be taken verbatim unless I mentioned it on my thread. It appears that my efforts in summarizing this call opened up a can of worms. Sorry about that.

Also sorry that some people have such thin skins that all they can see is OMG, someone who was sick of the rumors called the people propagating those rumors idiots instead of realizing that their rumors have no basis in fact. I guess it is OK to call our "supposed leaders" "Gramma Frump" or "St. Barney" but when they get called out as "idiots" for spreading malicious rumors, well then the gloves come off.

Over the past few months, I've heard rumors spanning from "we're being totally dropped from the bill just like in 2007" to "Trans women will be 'exterminated' with the passage of ENDA." Please. Really? Trans women will be marched off to concentration camps where they are to meet their demise? That's what you think an inclusive ENDA entails? Do you really believe that the organizations that work tirelessly day in and day out would work on a bill that includes something like this? Do you really think the sponsors of this bill would allow this? It just ain't so. I may think that Barney Frank is an arrogant ass, but I think he caught a clue after the 2007 debacle and he is now committed to make sure that people in the trans community are protected.

Now, if there was one thing I learned from Creating Change, it is that in order to do the work that must be done and develop more allies for our cause, we must expect good intentions. This means everyone, from our "supposed leaders" to others on the front lines of the progressive movement. When we are running around talking about how our "supposed leaders" want to exterminate us, we end up creating a circular firing squad that harms us all. Now that we are all expecting good intentions, let me lay out the facts.

ENDA is a beginning, not an end. It sets the minimum standards that all states must follow. If you consider the trans people living in states that despise us, this is a welcome change indeed. ENDA does not force employers nor employees to do anything that they don't want to do, but it does create legal consequences should employers choose to act like asshats. In other words, an employer can still treat you like crap but with the passage of ENDA, you can sue them for damages.

NCTE and the other organizations that have taken on the dirty task of working within the political realm to get our issues passed do not have the deep pockets of lobbyists. They have a few paid staff and rely upon us to back them up by calling our congresscritters and telling them what we need from them. NCTE is not hiding anything. They have not released information on the latest iteration of ENDA because they haven't seen it themselves. As it stands right now, ENDA is exactly the same as was introduced earlier in the year because it has not gone to committee for markup. Markup is where the work is done to attach amendments and tweak the language before it goes to a full floor vote.

ENDA will have "bathroom language" and no one likes it, least of all the folks at NCTE. They have been working at educating legislators so that the legislators who support us can limit the effect of any bathroom language.

ENDA is not going to force anyone to use the wrong bathroom. In fact, it will require employers to make reasonable accommodations for us, which is something that we are currently lacking. The EEOC is being charged with creating some regulations regarding "reasonable accommodations." It is thought that this would entail allowing a trans worker unfettered use a single stall restroom. If the restroom is multi-stall, the employer can create some sort of system such as placing a marker on the door so those with a problem with you using the multi-stall restroom can choose to stay out until you finish.

And those single-stall restrooms need to be within a reasonable distance from your work area. In other words, they can't tell you that you have to use the single-stall restroom that is five floors down, all the way to the back of the building. Not ideal, but I find it an acceptable starting point. If employers make reasonable accommodations, then they cannot be sued under ENDA.

ENDA is not going to allow employers to do "panty checks." In fact, you could sue them if they tried to require you to show your genitalia. This is a definite win, considering what happened to Kate Lynn Blatt.

ENDA will not supersede any state laws that already provide protection for gender identity and expression. As I mentioned before, ENDA is a floor, not a ceiling.

Politics is a dirty game and it requires compromise. As a political junkie who thinks that watching C-SPAN is a good time, I can tell you that I have never seen a bill make it from introduction to the president's desk without amendments. We are in the best position ever to limit amendments that would strip our rights from the bill. ENDA has 202 co-sponsors in the House. All of the Democrats on the committee responsible for markup are co-sponsors. If the Republicans succeeded in adding an amendment that would negate the purpose of the bill, it will not make it out of committee. There are 30 Democrats and 19 Republicans. Some of the Democrats are Blue Dogs and may need to be swayed to support an inclusive ENDA. The overall feeling is that they will be able to put a bill on the floor that protects our rights and will be signed into law, assuming it can get past the Senate.

I am fortunate to sit on the board of Ingersoll Gender Center, an organization that has provided peer support services and a speakers bureau for over 30 years. Ingersoll was there for my wife when she transitioned 20 years ago and it was there when I began my transition two years ago.

My work with Ingersoll is so gratifying because I get to see people re-create themselves so that they can live a more authentic life. I've been a grassroots activist since I came out in 1985. Now, I am learning how to work from the inside while not forgetting my roots. I believe that grassroots organizing and institutional organizing both play a very important role in our movement and when working together, can form a powerful force for change.

Will you roll up your sleeves and call or write your congresscritters and tell them to stop running out the clock and get ENDA passed now or will you sit on the sidelines criticizing those of us who will? The choice is yours.


Recent Entries Filed under Transgender & Intersex:

Leave a comment

We want to know your opinion on this issue! While arguing about an opinion or idea is encouraged, personal attacks will not be tolerated. Please be respectful of others.

The editorial team will delete a comment that is off-topic, abusive, exceptionally incoherent, includes a slur or is soliciting and/or advertising. Repeated violations of the policy will result in revocation of your user account. Please keep in mind that this is our online home; ill-mannered house guests will be shown the door.


Margaretpoa Margaretpoa | May 15, 2010 2:35 PM

Several things: My congresscritter has been on board with fully inclusive language which, (I like to think), is partly due to my urging.

The health Insurance Company and Pharmaceutical Welfare Act of 2010 was supposed to be a floor, not a ceiling. Look how that worked out: A bill written entirely by the industry and nothing but kabuki while the lobbyists greased the right palms. All of the right wing hate groups and so called "Christians" are out in force on this and a few donations here, a threat of a television ad there and the language can change in a hurry. As you pointed out, we haven't even been to mark up yet.

You seem to think that just because somebody has a D beside their names, they must be trustworthy. I call bullsh*t on that. Republicans may be abominable but Democrats are only better by comparison. By themselves, with nobody to compare them to, most establishment Democrats are some of the slimiest, self serving, corrupt people on the planet. Some are decent people I'm sure but don't ever believe that any of them are unable to be influenced by a fat check or fear of a primary opponent. I know John Cornyn personally. He's a very nice guy in person but we all know what he is like as a Senator. Republican or Democrat, they are ALL politicians and it takes a certain sliminess just to want that kind of power over others. That's before the corrupting influence of just being there, doing that job.

As for your not being very diplomatic, I'm not either. I never have been. But undiplomatic and patronizingly hostile are very different things. I salute your efforts and respect your knowledge of the system and the facts but talking to the rest of us like we are a bunch of naughty children, misbehaving out of ignorance or malice seems uncalled for to me. Yes, in every group there are going to be some loud mouthed blow hards who everybody wishes would go away. To blanket all of us with such scorn is not cool at all. And "you know who you are" bit is an excuse on the same level of "apologizing to anyone who was offended".

Renee Thomas | May 15, 2010 3:52 PM

I'd have to agree -

I'm angry, militantly strident and mad as hell. I assure you, in person I speak as frankly as I write. What I am not is - unaware of (or unschooled in) the complexities of the issues and just exactly how narrow our window is and how quickly it's closing. This bill is about Jobs - it's about Equal Protection under the Law - and (unfortunately because we fail to effectively counter it) it's about where we are allowed to void.

Bloody Hell! We're reduced to where we can piss in peace!! What is wrong with our national psyche that we let such fucknuttery go largely unchallenged?

Show me the scores of evil transpeople preying on innocent heterosexuals using the public restrooms all across the fruited plain (no pun intended).

What's that you say Andrea Lafferty? Out of millions of us you can't cite a single case??

That our aspirations for full and uncontested civil rights are reduced to and hamstrung by this dipshit, red-herring argument is absolutely infuriating.

I would say that it has the potential to leave me speechless . . . but yeah, good luck with that happening anytime soon.

I don't disagree with most of what you say here, though I take issue with your tone. People are afraid. There's conflicting information out there and a lot of mixed messages and people we want to trust are telling us contradictory things. Would it be good for more of us to get more tapped in? Yes, definitely. But this is confusing and people feel helpless, and scolding them is hardly the way to make them feel less so.

And for those of us who are more tapped in, and who have done the activist work, there's still plenty of room to criticize what's going on with ENDA.

For one, I don't find the restroom compromise to be satisfactory at all. There is a moral argument against it; language that does anything other than open up public restrooms to trans people is an endorsement of discriminatory practices. That's something a "non-discrimination act" should want to avoid.

But there are practical concerns too, that unless you've lived this, you have no idea how really harmful the single-stall restroom solution is. Some of it starts to become clear when you stop thinking of workplaces as simple office spaces and realize that many of them are huge, sprawling, and dynamic settings . I talked about this at length on one of Jillian's posts and I'll re-post the relevant info below, because I really think there are ramifications here people need to consider before deciding how they feel about what's going on with ENDA:

- I work in a busy retail environment, and the unisex restroom is one of its most active spaces. I rarely visit the restroom where I can just walk right in...perhaps two-thirds of the time I'm required to wait my turn, and at times, I've waited for more than half-an-hour. Sometimes I get called away for work responsibilities before I can do what I came to do. Sometimes I give up and come back later, even though I really need to, you know, do my business.

- Because these restrooms are so busy, they get dirty quickly, and don't receive the kind of maintenance they probably deserve. I've had to clean up urine, feces, and even vomit before I've been able to actually use the facility. Also, I frequently have to go track down toilet paper first. Certainly that's not my job, but when you've been waiting for half an hour already, you gotta do what you gotta do.

- Sometimes things go...unseen. More than once I've ended up with someone else's urine on my hands or clothes because the person who went before me left a hard to detect "present" on the lid, the handle, the toilet bowl, or the floor. Normally cautious about this stuff anyway, I've had to up my level of vigilance.

- I've had three minor UTIs in the last twelve months. Is this provably because of the inconvenience and longer wait times I'm forced to endure to use a restroom? I doubt it's unrelated.

- When the unisex restroom is out of order, the mandated procedure is this: Find someone I know and trust to chaperon me to a public restroom, where they will stand guard to prevent the general public or other employees from entering. Also, I must notify two levels of management...store management and my own supervisor (I'm a corporate employee and my supervisor isn't present in my physical location). This is so humiliating in practice that I've simply chosen to "hold it"...which again, isn't healthy.

- As noted, I work in retail, and I'm a corporate employee where travel is a required part of my job. Not all of our stores have unisex restrooms, though. In fact, only three out of a couple dozen are so equipped in my immediate area. The net effect of this is that when I announced my transition, I was forcibly relocated to a home store farther away from my home than necessary, requiring extra travel and gas (at my own expense). I was limited in the way I was able to perform my job, not able to fully participate with the rest of my team, causing them to have to carry extra workload. And I am at a ceiling in terms of promotability because all positions above me require additional, not less, mobility.

- Additionally, there are concerns about medical privacy. If it's mandated that you use a restroom apart from your colleagues, or in a way other employees are not, it does potentially reveal things about your medical history to all of those other people, which is supposed to be illegal in and of itself. That was definitely the case where I work.

"Those of you who have ever met me can tell you that I can be impetuous and impulsive. I can be a hothead and go off half-cocked before I have all of the facts. I also have very little patience for people who like to criticize others without lifting a finger to help and tend to be undiplomatic as hell. In other words, I will not couch my concerns with the niceties of a civilized society."

I'll bet Bill will agree that you and I work out of the same playbook.

Ha! But I still love you both. :)

It was a pleasure to meet you in Dallas, Ryan. I'd be happy to hang out with you again over some more vodka and cranberry drinks! *grins*

Gender non-specific restrooms are a positive step for many trans and queer-spectrum people who feel unsafe or uncomfortable in male/female restrooms, so long as their use is a choice. However, when segregated, apartheid restrooms are mandated upon a minority class, they represent a fundamental denial of human dignity. I am disturbed by the willingness of some in our transcommunity to acquiesce to restrictions that would reinforce and legitimize the most horrific false stereotypes that transpeople endure. To bring Trans Jim Crow into Federal law in the 21st Century would mean humiliation, not accommodation.

Kelley, the changes to ENDA regarding restroom usage will not mandate anything, especially not "segregated, apartheid restrooms." Instead, the proposal would simply say that, if an employer requires a trans employee to use a restroom other than the one normally used by other employees, the employer cannot be sued for violating ENDA for that act, but only as long as the separate restroom is consistent with the employee's post-transition gender and "reasonable" in terms of location and other factors. (In other words, the employer cannot require a trans woman employee to use the men's room, or vice versa, without violating ENDA.) Nothing, however, requires an employer to insist that a trans employee use a separate restroom. So, an employer can allow a trans woman to use the women's room, despite the protests of other employees, if the employer so chooses.

I don't like this proposal either, and abhor the transphobic (and, wholly, unjustified) premise on which it is based, but it has nothing to do with apartheid.

Gloria S. | May 15, 2010 7:43 PM

Since so many transgendereds are dissatisfied with this bill, and compare it to "Jim Crow" laws, then Congress should strike all references to gender identity from the bill. We can take up the issue at some later date, when we have had time to consider trans activists' reasoned arguments on how their bathroom dilemmas are comparable to the Holocaust.

The only way this nonsense even got to Congress was because it was stuck onto a gay rights bill. No Congress would pass, or even conduct hearings on, a stand alone trans bathroom bill. The federal government has more important things to worry about than the nation's bathrooms, and business owners have more important things to do than become gender studies experts in order to avoid a lawsuit.

The way things are headed now, it appears that the entire trans issue will be dropped or nothing will be passed.

No one here compared ENDA to the holocaust, except possibly Ryan (the linked article cited in his post seems to be more about erasing trans identities than actual murder and internment camps, though). Yes, there is some hyperbole and strong language going around. People are upset, and people are scared. No doubt you know what that is like.

Restroom privileges are no small thing. More importantly, the message sent by systemic discrimination of this sort - that trans people are different and deserved to be treated differently - is downright dangerous. Again, that's something any minority can relate to, because we've all faced off against it (where we can sit on buses, who we can and can not marry, etc.).

You do have a point, though. This issue won't get solved later on. The trans community, as a political entity, is just too small, it's voice not loud enough. But we can't not try, and this ENDA is our best chance to see that our needs are met. That's why you're hearing what you hear. If you support us, you should add your voice to our own. If you don't, well, that's unfortunate, but the fact that you disapprove is hardly going to be enough to quiet us.

I find the "bathroom language" as you have laid it out, which is the same as what I already understood it to be, to be anything but "non-discrimination." It is, in fact, discriminatory. When I learned about it, I was not surprised, especially considering the fear mongering going on, but neither did I consider it acceptable.

Yes, politics is about compromise, and sometimes you get what you can, not what you want. But if all you can get is the same discrimination as already exists in many work places, then the bill is misnamed.

You're right, of course. The proposed language would carve out an exception to ENDA's complete ban on employment discrimination based on gender identity with respect to bathroom usage. In that sense, it is discriminatory. However, it is wrong to say that these changes will result in "the same discrimination as already exists in many work places." Under the current law in the 38 states where gender identity discrimination is legal, an employer can require a trans woman to use the men's room, and vice versa. If ENDA is passed, that will be illegal, since the alternative restroom must be consistent with the employee's post-transition gender. That change alone is a huge advance in our rights.

Renee Thomas | May 15, 2010 8:12 PM

With all due respect Gloria . . .

And at the risk of having this much needed retort to your comments striken from the record

Bite Me

Hey Ryan -

Fancy meeting you here! You are so right about assuming best intentions. We even include that statement in the Guidelines for Conduct that we read out loud before every Open Support meeting that WA. Gender Alliance holds 104 times a year.

However, political and support organizations aren't the same animal. Politicos pretty much assume everyone is out to screw them, or at least best them in some way.

And lefty/progressive/GLBT/Democratic politicos specialize in eating our own. I've never found a group in this spectrum that wasn't too small to subdivide itself further.

But it's always good policy to verify information before publicly acting on it.

This is a decent start. You participated in a lot of that mess, and got a lot of clicks off it. Yet in this post lacks an apology to those doing the work. Mara (unless she is the "frump" you referred to - which implies you never met her), Diego, and others - they all could have found other things to do in life.

Finally, in all these references to your "coverage" of the conference call, your affiliation with the Ingersoll Ctr is mentioned. Unless you are representing that nonprofit and its opinions on ENDA, you may wish to be more clear in the future when you are speaking for yourself alone.

We'll see what happens. Or doesn't. That's the proof, you see. We've been lied to and played for so long that there's a certain credibility gap that won't be overcome by anything except actions.

Every time we've been told something like this in the past, something's happened (we've been told) to cause things to go awry.

The co-sponsors? They're sponsoring the bill as it's written now. Add "bathroom bill" provisions, and you just give the opposition talking-points to play up. You concede that there's a danger. I don't think that's wise, but hey, I could be wrong. But how many co-sponsors will drop out if the bill is amended this way?

The fact that none of the state, county or city legislation that was passed thought it necessary, or useful, to have such provisions causes concern.

Imagine if, when bathrooms were de-segregated in the South, that when a Black American entered a formerly White-only restroom, there had to be a sign placed on the door until they'd left? Would that have been a "reasonable compromise", or would it have exacerbated the situation? We'll never know, because such a thing may have been mooted, but it didn't get passed.

What happens when we look at the implementation of this? How will this affect Intersexed and Transsexual people - whose medical histories are not common knowledge? Has the situation of Intersexed people even been considered?

This is supposed to be an employment bill. It's already been watered down so much in an attempt to get something, anything, passed that there's little need for further amendments to make it totally useless. Just a few would do it now. In committee. On the House floor. In the Senate committee. On the Senate floor. During reconciliation.

After this is over, no matter what the outcome, we need full Chapter VII protection, and also amendments to the ADA for those in transition. That was our original target in the 70's, when ENDA-like protections were first discussed, before the ADA was even on the table.

As I said, we'll see what happens. Or doesn't.

"Has the situation of Intersexed people even been considered?"

That's what blows my mind. How is it that the "I" has never even come up in any of this discussion?

Yeah that is one thing that concerns me and I am also waiting with baited breath to see what is actually going to be in the bill that will be voted on when on the floor. It was mentioned that expression would be protected but there was no one who knew just how that would happen.

I'm not intersexed so I do not know the different issues that people who are intersexed have to deal with. Does "gender expression" cover it? My uninformed guess is no and that different language needs to be added?

No, it probably doesn't. But yes, there are some women - some who have given birth - with dicks, to put it bluntly.

They have no documentation issues: no-one but they, their OB/GYN, and their husbands know. But now they will be legally restricted when they weren't before.

They've flown under the radar before now. Now no longer, with Barney's Bathroom BS.

I was in a similar situation from July 2005 to November 2006. No dick as such, but I did have testes - and a female social presentation.

I got that fixed - there was a cancer risk, and there were pre-cancerous lesions. But that makes me vulnerable in law.

In 1987, Wilma Wood was fired. She brought suit against her employer, claiming that she had been fired after the employer learned that she was intersexed and had undergone genital surgery. The U.S. District Court in Pennsylvania found that the Pennsylvania Human Relations Act protects women because of their status as females and discrimination against males because of their status as males, but employers are not legally prohibited from terminating employees on the basis of intersex status. The Court cited caselaw arising under Title VII as "persuasive authority."

63 Fair Empl.Prac.Cas. (BNA) 677, 44 Empl. Prac. Dec. P 37,314

Note "genital surgery" not "sex reassignment surgery" - as she was legally female even before, just as I was.

Note also that the reasoning in Schroer doesn't apply. Rather than it being like someone "changing their religion", we're like atheists.

Thanks Barney, for opening a great big can of wriggly worms, and making our lives even more difficult than they already are.

Of course if you think Trans people are disenfranchised, powerless, voiceless and the silent "t" in GLB(t), we don't even get a look in.

More at http://www.isna.org/legal

And the fact that I have to reveal the intricate details of my genital configuration to even talk about this is Obscene.

Not humiliating - for I refuse to be humiliated, it's those who put me in this situation who should be humiliated and ashamed.

This is the kind of thing we'll be subject to. And all because of the irrational fears of some, when there's no actual danger. To "spare their feelings".

To repeat:

Imagine if, when bathrooms were de-segregated in the South, that when a Black American entered a formerly White-only restroom, there had to be a sign placed on the door until they'd left?
To spare the feelings of Whites who felt uncomfy.

Isn't the whole point about Human Rights legislation to make sure Human Rights are granted, despite the "feelings" of a persecuting majority? Rather than making active discrimination illegal, this would institutionalise and legitimise it.

The bill as its written now is not too bad. Not great, but we can live with it as a compromise. I fear though that by the time it gets out of committee (if it ever does), and Barney & co have played with it, it will be unacceptable.

Zoe, regardless of whether the comparison used in the Schroer opinion between a transgender person's change of sex and a religious person's change of religion applies to intersex people, the concept that discrimination based on employee's failure to conform to sexual stereotypes violates Title VII's ban on sex discrimination (the legal theory on which Schroer is based) most certainly does apply to intersex people.

Ryan, gender expression is protected because ENDA bans discrimination based on "gender identity," defined as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual." There is one caveat, however. Just as Title VII's ban on sex discrimination has been interpreted (wrongly, I believe) to not bar employers from requiring employees to adhere to sex-segregated dress and grooming codes, ENDA will allow employers to do the same without violating the ban on discrimination based on gender identity (including gender expression), provided that the employer allows a transitioned or transitioning employee to adhere to the code consistent with her/his post-transition status.

Yes, Zoe, intersex people and "stealth" transsexuals are protected against discrimination under ENDA just like everyone else. And, no, it doesn't require the employee to reveal her/his/zie's intersex or transsexual status to obtain that protection. Why not? Because ENDA bans discrimination based on "gender identity," not based on being transgender, transsexual, intersex, WBT, HBS or any other self-identity. Everyone has a "gender identity" (defined as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual"), just as everyone, whether gay, straight, asexual, pansexual, etc., has a sexual orientation. Any attempt by an employer to treat an employee differently because of any such characteristic, including the employee's intersex or transsexual status, will violate ENDA.

Finally, even with the proposed "bathroom language," ENDA will be far from useless. Instead it will be an effective tool to convince employers to stop discrimination based on gender identity and to provide a remedy to the employee when such discrimination occurs.

I've been subjected to so-called "reasonable accommodations" for restroom usage in the past. It was inconvenient and problematic, and singled me out for a special kind of treatment for the sake of protecting cis women from my presence, which is the entire point of this amendment.

The amendment is discriminatory and divisive. Just because it won't force trans women to use the men's restroom does not mean it's not discriminatory and transphobic.

Hey ya'll . . . I am in Arizona . . . yes that place that is spawning some of the most ridiculous, hateful, bigoted, and plain stupid legislation we’ve seen for a long time.
Of course, I reside in the semi-sane little bubble of Tucson.
I don’t trust politicians to compromise in a sensible way about bathrooms. Efforts to define just how we are different and maybe dangerous and ought to pee someplace else offend me. I understand compromises somewhat. I just don't want to be defined by where I pee.
I would love to see the nation adopt the same simple guideline that the University of Arizona adopted a few years back. The U of A says that folks should use the bathrooms of the gender they identify with. They also plan to identify and/or build gender neutral bathrooms in most of the buildings on campus.
Yes, there was some work behind this wonderfully simple piece of wisdom. Michael Woodward and I were both members of the President’s LGBT Diversity Advisory Council. We introduced trans to then President, Peter Likins. Bathrooms were, of course, one of the concerns for trans folk on campus. A sub committee – on bathrooms – was formed. We met regularly (in the regent’s room – of the admin building) for about a year. Our committee included the chief of police, dean of students, vice president of diversity, chief of facilities, chief architect, Michael, myself, and, for spice, a wonderfully articulate male cross-dresser friend. Over the months we crafted language we thought might work and passed it on to the President’s office. President Likins issued his guideline in 2006, shortly before retiring. Shortly after the proclamation, the student senate (or at least the white male portion) called an emergency meeting to see if they could challenge and revers this new guideline. As I recall the members of the senate were about equally divided between men and women. It was the conservative young men on the senate who were the most upset. They were worried about trans women in the women’s restrooms and all of the dangers we represent. Curiously, the women were not worried.
Since the implementation of this guideline almost exactly four years ago, ther have been no problems.
If we can do this here in AZ . . . .
Alison Davison
Coordinator of the Southern Arizona Gender Alliance (SAGA)

Sheila Coats | May 16, 2010 11:40 AM

I agree with a lot you have to say. I sometimes,no a lot, go off on people or ideas without checking anything. I have only used my experience in life and how I have transitioned. I did try to change the laws in my own community but got blindsided by younger people in my community who graduated from the university here. I felt I got a lot done but now it just seems it was for nothing. Things are back to the way they were. I feel sorry for some who are trying to change and there is really no law to protect them. I know that I had made mistakes but I'm not a perfect person nor did I try to be perfect. I gave up and I'm liveing my life the way it should and let others who want to do the activisms, well let them. I do from time, do write in. I don't know if it ever gets published on this blog or any other. I never see any comments negative or positive from this blog. Well, who cares no one reads this anyway.

Let me give you all a real-world example of how much fun the work bathroom situation can be for someone who transitions.

I started my work transition in May 2008 when I went to my VP and HR to let them know I was trans and would be living full-time as a woman in the near future. At the time HR supported the idea of me using the women's restrooms at the time of my transition. Mind you, I am in NC so I was thankful that I still had a job after that discussion.

Fast-forward to Aug 2008 and I'm now living full-time as a woman. Joy of joys, no one informs the women on my floor that I will be using the women's restroom. Somehow they got the idea that I would use the single stall in women's locker room. As an olive branch, I offered to use the locker room stall for a couple months to give coworkers time to adjust to my new persona.

After a couple months I asked HR if I had the go ahead to use the regular restrooms. "Welllllll we don't think the women are quite ready yet." I asked if there were complaints or if they had asked any of the women their opinions. "No we haven't talked to them or heard anything but we're sure they're not ready yet." It was then they recommended we wait a few more months. Oh and by the way we're going to be remodeling your floor to put in a unisex stall. While that's being done the locker room will be inoperable. During that time you'll have to use the president's private bathroom on the 3rd floor, unless he's in town. Then you can use the regular restrooms.

So for the 3-month remodel span I had to schlep my ass from the basement up to third floor every time I had to use the bathroom. Add to that joy on of the T blockers I was on was a diuretic. I had to plan my work day around my bladder. If I was in a long meeting I had the embarrassment of having to travel to a different floor just to use the bathroom. Having lunch in the cafeteria? Better go just before I eat b/c if nature called I'd have to go downstairs ant to the other side of the building.

After the remodel we had a beautiful new single stall unisex washroom in addition to the single stall in the locker room. I know had a whopping total of 3 stalls available to me while every other woman had 19 stalls. After a couple months I approached HR again. I was stalled yet again and told that we could revisit the issue later. At my one-year mark I asked politely... again. I was told I could use the regular restrooms... AFTER I had surgery. Yep, it was all about that big ol' scary penis, apparently.

That unisex became known as "my" bathroom. Some women were resentful that I was so special I got my own bathroom. Like I had a choice in the matter. Some religious asshat, knowing it was "my" bathroom took it upon themselves to leave me little leaflets and pamphlets b/c really, I MUST need Jesus in my life.

So, now that I'm post op I can use the regular restrooms. There are many women who won't use the restroom there if they know I'm in there. I still have anxiety about using the bathroom for fear of running into someone while I'm in there and upsetting them. I'm so afraid they'll make up something that could get me fired. No employment protections, you know.

So, just wanted to let you know that having that super-duper unisex stall may be a nice OPTION but when it's a REQUIREMENT it only serves to set the transperson apart in a discriminatory manner.

We could just remove the bathroom compromise altogether and make it a straight up "You can't fire someone because of their sexual orientation or gender identity or gender expression."

And then the opposition will add a bathroom amendment that we'll hate even more.

Everyone understands that when a bill is introduced in the House or Senate, anyone can add amendments to it right?

The area of information that people are lacking is the political process itself.

We're trying to make it better...not perfect. Perfect's not going to pass. We accept compromises on sexual orientation too. I consider religious exemptions to be codification of discrimination.

Folks saying "no compromises what-so-ever"...if we had demanded that on New Hampshire's same-sex marriage legislation, same-sex marriage wouldn't be legal in New Hampshire right now.

Codifying Trans Jim Crow restroom exclusion into Federal law would represent a legitimate human rights issue that merits open dialogue. It is inaccurate to characterize community concern as "no compromises what-so-ever." There is a line that separates compromise in good faith and outright abdication of human dignity. One test of fair compromise is the principle of reciprocity. Would workplace restroom restrictions on the basis of race be ethically or constitutionally acceptable? Clearly not, as established by the Civil Rights Act of 1964. Would Rep. Frank be so agreeable to workplace restroom restrictions on the basis of sexual orientation? If not, why then are American men and women who are trans any less deserving of the basic human dignity of access to the same restrooms as other American men and women? While there are many areas of appropriate compromise in the ENDA debate, this is a line with an ugly historic context that should never again be crossed.

It's inaccurate to characterize the language in the bill as a "restroom exclusion." It's not an all out trans exclusion is it? It's also not accurate to characterize ENDA as anything comparable to the Civil Rights Act of 1964.

One test of fair compromise is the principle of reciprocity. Would workplace restroom restrictions on the basis of race be ethically or constitutionally acceptable? Clearly not, as established by the Civil Rights Act of 1964.

That wouldn't be a fair test because bathrooms are actually segregated by gender. If you don't want bathrooms to be segregated by gender then I would suggest a campaign to make all bathrooms unisex.

ENDA isn't modeled after the Civil Rights Act. It doesn't even come close to covering all that the Civil Rights Act of 64 covered. If it did we'd be talking about the possibility of The Civil Rights Act of 2010 which would indeed cover schools, employment and facilities. ENDA is nothing more than Title VII of the Civil Rights Act of 64.

I'm not the one driving this thing. If I had things my way, we would be talking about true civil rights bill that covered more areas than just employment.

Many state laws that codified segregation were actually repealed by the Supreme Court, not the Civil Rights Act of 1964.

The reality is people of color did not acquire all rights rights in one fell swoop...even as large and encompassing as the Civil Rights Act is. In fact, people of color continue to be discriminated against even with all the legislation and court cases.

We are also faced with the fact that we have a patchwork of state laws concerning changing one's legal sex on birth certificate's and driver's licenses that we can't solve through ENDA.

There is no magic bullet. For me personally, no legislation is going to guarantee that I'll never get hassled again when I go to use the White's Only...err I mean Women's Only restroom....either way, the cleaner, better maintained, safer bathroom that some want the privilege to enter without actually eliminating the privilege.

Let's reverse the test. What if some people of color agreed to keep the "White's Only" bathrooms but extended access to people of color but only to a certain level of darkness or perhaps to people of color that have one white parent? Where do you draw the line? Can you draw a line as long as the two separate spaces exist? My point is simply that it's not a very good test.

I agree that the scope of ENDA is much narrower that the Civil Rights Act of 64. but the specific issue of workplace policies that mandate restroom segregation for trans employees is analogous to those for people of color under Jim Crow policies for a number of reasons:

  • Foremost, gender transcendent people of all colors, like people of color in all genders, are human beings who deserve to be treated with equal dignity and protection under the law.
  • Under Jim Crow policies, restrooms were segregated by gender (or perceived sex) and segregated again by race. The ENDA amendments under discussion would endorse restrooms segregated by gender and segregated again by transgender/cisgender status. (The question of making all restrooms unisex is a red herring with respect to ENDA.)
  • Transwomen, who identify and live as women, are denied the basic human dignity of access to the same restroom facilities of all other women, just as women of color were denied this dignity under Jim Crow policies. Ditto for transmen and men of color.
  • Restroom segregation policies on the basis of race or trans-status are equally irrational and without basis. Multi-use workplace restrooms almost universally have private stalls, where no one's anatomy is anyone else's business.
  • The intention of restroom exclusion policies based on race or trans-status is the same: to reinforce, in a very visible way, false and defamatory stereotypes about a marginalized class of people.
  • The harm inflicted by these discriminatory policies is the same: humiliation, degradation and denial of legitimacy among women and men of the privileged class. Justice Thurgood Marshall's wrenching narrative of an experience from his childhood is familiar to many transpeople who have endured restroom exclusion in the workplace and public accommodation.

The principle of reciprocity is valid here. Discriminatory policies that would be unconscionable and dehumanizing for people of color or for gay or lesbian people are equally unconscionable for transpeople. In my view, segregated restroom exclusions that target transpeople are correctly called Trans Jim Crow in the 21st Century.


Kelley, as I explained above, ENDA does not "mandate restroom segregation." The proposed "bathroom language" would, however, permit such segregation, which, I agree, is distasteful in whatever context and should never be allowed. The distinction between mandates and permissions is important, however, in that employers will not be required to force transgender employees to use separate bathrooms. Jim Crow laws that segregated restrooms on the basis of race enforced that mandate by making it not just illegal for the employee or other person of color to use a "whites only" bathroom, but also made it illegal for an employer or business owner who didn't want to discriminate to allow access regardless of race. Unlike those laws, under ENDA, employers who don't want to discriminate in bathroom access based on gender identity won't have to.

OK as I stated in my article, no bill has made it to a president's desk without amendments. The amendments are added during markup in the committee.

So how about we quit kvetching about how transwomen are going to be exterminated, how ENDA is nothing but a Jim Crow law, and download the current bill by going to http://thomas.loc.gov, read it, then lobby the committee members to add amendments that we find acceptable. They don't do amendments in a vacuum. I've already contacted my rep and senators and told them why "bathroom issues" are such a problem for us and how we'd prefer no language at all but if there IS bathroom language, that they take this into consideration and help to defeat any amendments that would harm us.

Let's stop acting like victims and what "everyone is doing to us" and put our anger into action. Or you could always tell your congresscritters to vote against the bill.

Why do you assume that no one is doing anything but talking about this in our blogs?

Why is it such a problem for you that trans women are criticizing an amendment that is intended to target trans women who haven't had surgery yet?

Marti Abernathey wrote about Barney's obsession with trans women's genitals.

It's not a rumor that Barney wants a bill that keeps trans women out of women's restrooms. Barney's said so himself many times. Is it any shock that this language appeared in the bill? Not to anyone who's paying attention.

Sure, Barney may be committed to protect trans people in the current version of ENDA, but let's say his committment rings a bit thinner than, say, his committment to the needs of cis gay men.

I guess I forgot to add that I am an transman so the idea that I just don't understand what transpeople go thru is laughable. Especially when I watch people in the trans community walk through the doors of Ingersoll every week taking the bravest steps a person can make and recreate their lives.

While transwomen have some different issues and needs than transmen, I would hope we don't get into a pissing match about who has it harder. Transwomen have an easier time than transmen in some areas, and transmen have it easier than transwomen in other areas.

We are talking about things that have not happened yet. My wife pointed out that the current bill does not have ANY bathroom language in it and we are going on what may be. The current language which can be found at thomas.loc.gov mentions locker rooms and shower facilities where nudity is unavoidable. Look for the heading of "certain shared facilities."

I still stand by my assertion that we can still influence committee members by explaining what we need and asking them to support amendments that would meet those needs and asking them to vote down any amendments put thru by the other side.

I never said you had no idea what trans people go through. I saw your statement in the OP that you had begun your transition two years ago.

I was saying that the proposed amendment is targeted at trans women - and given Barney Frank constantly invoking "penises in restrooms/showers," I think it's pretty obvious exactly where his prejudices lie in this regard. I wasn't making any assertions about "who has it worse."

I also asked why you assumed that the only action going on is based on blog posts criticizing this language?

I'm certainly willing to have a compromise on this bill. Let's accept the bathroom compromise as long as it applies to everyone else covered under the bill. Thus, lesbians, gay men, bisexual as well as trans people have to use a single stall toilet or, if in a multi-stall toilet have to have a sign up on the door to warn people that they are in there. That seems a perfectly acceptable compromise to me.

And if that's not an acceptable compromise, why is it not acceptable? Compromise means everyone gives up something to get what they want, right?

Looks like it's moot anyway.

Feinstein's Deputy Director, Trevor Daley, in her L.A. office on Thursday

"ENDA isn't going to happen this congressional session."

Source: Wendy Leigh in reply to Meghan Stabler

Which is so aggravating. They say they don't want to do it because of mid-term elections. Then almost immediately the 2012 election cycle starts. Then we are back to mid-term elections and on and on.

For them to say to just wait until after the election season is bullshit because it is ALWAYS election season here.

It's looking like this whole debate doesn't matter anyway with ENDA getting dumped by the Democrats. Which is just annoying - they have the support they need to get it past and all the seats they needs as well.

The blog that used the hyperbole of "exterminate transwomen" was supposedly authored by one of two women. Two women are both in a huff over being called an 'idiot' so I don't know which one it is. I was just repeating their hyperbole in my title because this is in direct response to that blog.

You can look to ENDAblog for the article.