1. State non-discrimination legislation
Progress in employment non-discrimination is particularly key to turning our community around. Discrimination means no employment; without employment, we have no money; without money, we have no capacity for institution-building; without institutions, we cannot change prejudice and fight discrimination effectively. Other forms of non-discrimination are also important, but employment is the key to the lock.
It is unlikely that ENDA, the Employment Non-Discrimination Act, is going to move any time soon, unless there is an exceptionally good year for Democrats in Congress. Progress in non-discrimination is going to have to come from the states. Local municipal laws are good, but too often these have no teeth and are practically unenforceable. I note that the federal sex discrimination law may cover discrimination based on gender identity or gender expression in some cases. I have begun to represent employees across the country, discriminated against based on gender identity or expression, before the federal Equal Employment Opportunity Commission, in places like Florida and Arizona. Needless to say, I am not representing high-end workers, so it's pro bono or contingency work. But while I enjoy writing law review articles and blog posts on the subject, I feel strongly that we need to help individuals based on the laws that currently exist, and to train lawyers to use them on behalf of trans clients. I just recently did a seminar for Lawline.com, which provides continuing legal education for lawyers. If you know a lawyer who is interested in viewing my webinar, "Gender Identity-Based Employment Claims," (120 min.) have them contact me and I can send them a link to view it for free.
The political problem here is that the extreme right-wing often uses fear-mongering tactics that suggest that passage of non-discrimination laws will allow pedophiles to lurk in public bathrooms to sexually abuse children. Similar tactics were used against the Equal Rights Amendment for women in the 1970s, against sexual orientation non-discrimination laws, and against the repeal of Don't Ask Don't Tell. It is effective because the public, which knows little about these issues, does not understand that rapists do not need and cannot rely on such laws to prey on women in rest rooms. Assaults on women in women's rest rooms occurs with regularity regardless of such laws, and my research has shown that there is no increase in such assaults in cities with gender identity non-discrimination laws, nor are there any reports -- zero -- of trans people doing so in reliance on such laws. But you can't explain that easily in a 30-second ad, whereas you can easily show a lurking pedophile that will scare the living daylights out of you if you are a parent.
The argument about letting pedophiles into the restrooms is irrational, and is not based on any specific provision of non-discrimination law. However, in an attempt to neutralize such fear tactics, legislative committees often decide to cut the "public accommodations" portion from state non-discrimination laws covering gender identity. At the same time, many trans people are offended by giving in to such fear-mongering, which suggests there is reason to label trans people as pedophiles. In addition, it also means that discrimination in places of public accommodations, like hospitals, restaurants and government offices, may be permitted, which is clearly unacceptable to any civil rights advocate.
The clearest recent example in trans politics is the signing of a trans rights bill in Massachusetts. The bill adds Massachusetts to 15 other states, Washington D.C., and more than 140 counties and cities that protect transgender people. It includes gender identity in the state's non-discrimination statutes - except in public accommodations - and amends existing hate crime laws to explicitly protect people targeted for violence and harassment.
Some trans advocates have expressed upset, understandably so, at the exclusion of "public accommodations" from the bill, which would have prohibited discrimination against trans people in restaurants, theaters and other places of public accommodations, and public rest rooms. Others are upset, also understandably so, at the inclusion of hate crimes, which adds to the power of the police state to target people of color for discriminatory enforcement. Still others are upset, again understandably, at the bill's defining of "gender identity" to permit an evidentiary showing "including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of that person's core identity; provided however, gender-related identity shall not be asserted for any improper purpose." This might possibly cause potential problems for trans people who do not follow the standard medical model often unavailable to low-income people, or whose multifarious gender identity differs from the standard transsexual narrative.
And yet, as much as I understand these objections, and feel concern, I cannot help but applaud the progress accomplished by the Massachusetts Transgender Political Coalition, the group that has worked on this issue in Massachusetts since before I was a member back in 2001, when I arrived in Boston for grad school. It's been more than twenty years since the Massachusetts state law prohibiting sexual orientation discrimination was passed in 1989, and it would have been understandable if the group had pursued the politics of justifiable anger.
Instead, the group pursued a strategy of educating the public and legislators, eschewing protests and vitriolic rhetoric, even as it faced down violent opposition from right wingers who seemed to dominate the media with fear-mongering about the "bathroom bill." It found powerful allies among government elites. It took years of defeat in its stride, managing to hold together enough of a core constituency to continue its quiet but effective work. It was not showy or flashy, nor did it spend its time creating manifestos or besieging legislators who were not yet on its side, though it did matter-of-factly call out hypocritical politicians who pandered to fear. It pursued grants to fund an Executive Director position. It held briefings and lobby days. It created chapters around the state. It launched the effective "I AM" video campaign, and backed an executive order from the Governor protecting public employees from employment discrimination. It got a resolution from the Boston City Council voicing support for the state bill. It got progressive religious leaders on their side and there was a study by the Williams Institute on the cost to the state of transgender discrimination in Massachusetts. It helped create a coalition of gay and lesbian groups, women's groups and professional organizations. These things are not sexy, and they require consistent and competent work, and swallowing the anger at being left behind to suffer. As shown by the events in Massachusetts, this strategy is effective.
The fact that there are valid objections to the bill does not negate the accomplishment, and others trying to create trans legal rights through the political process would do well to consider the case of Massachusetts. In fact, while I understand and sympathize with the objections, I disagree with those who would advocate an all-or-nothing approach, angry denunciations from the left or right, and refusal to work with the gay and lesbian community. In fact, the objections are of questionable merit, which is not to say they are wrong, just wrong-headed. The idea that a "public accommodations" bill would help protect the right of trans people to use public rest-rooms ignores the court cases in which public rest room usage was not found to be covered by non-discrimination laws. Although there is one court case finding that public accommodations law did include bathroom usage, the issue is far from clear. There is also no question that discriminatory criminal enforcement severely burdens people of color, resulting in a disproportionate incarceration rate. However, the number of cases in which hate crime sentencing enhancements based on anti-trans bias are likely to be invoked are vanishingly small, compared to the main drivers of selective enforcement, which are daily police, prosecutorial and judicial discretion in service of prejudice in all phases of enforcement using the bulky criminal code. The argument could just as well be used to advocate elimination of the entire criminal justice system, when the real problem is dealing with prejudice against people of color. Similarly, I find the objection less than compelling regarding the bill's defining of "gender identity" to permit an evidentiary showing about prior medical history, sincerity of belief and core gender identity. The bill specifically says that such evidence is permitted, not required, to show gender identity, and that it includes but is not limited to those items. Yes, it is possible that a confused or prejudiced judge could use this definition against a trans plaintiff, but judges make up their own laws every day in courtrooms across the country. Such as ruling would be against the plain meaning of the statute, and would hopefully be reversed on appeal.
I am always wary of those who wag their finger and say "the perfect is the enemy of the good," thereby trying to excuse compromised legislation, especially where there is a question whether it is, in fact, good. I am against "incrementalism" when it is used to drive a wedge into the LGBT community. I believe that one should first make great efforts to educate the politicians and the community and to pass a bill that contains all appropriate remedies, and not make the arguments of the enemy before they do. But after a while, one must come to recognize some practical reality. In jurisdictions like Massachusetts, where fear-mongering holds great sway, and "the bathroom bogeyman" has been a successful blocking tactic for over twenty years, there I become a pragmatist.
The political trend I see here is towards creating state-wide trans organizations that function as a coalition, working in coalition with trans activists from around the state, politicians and other state-wide and national organizations, and being willing to spend the time educating the public and the politicians.
2. Building Institutions For Trans Empowerment
The next political trend happening is the increasing number of institutions working on trans empowerment. The gay and lesbian community has been extraordinarily successful in building institutions that have been instrumental in providing help for gay people in need, reducing prejudice, and promoting rights. By contrast, there are relatively few institutions from the trans community engaged in the work of doing this important work for trans people, and their budgets are relatively tiny. Nonetheless, without thinking much, I can count about a dozen or two organizations across the country that are working on trans issues, and I am sure there are more of which I have never heard. This growth in institutional capacity is extremely important, and we need to encourage that.
An important factor in the disparity between gay institutions and trans institutions is the reality that prejudice has made relatively few trans people economically able to support institution-building. (See step 1, above.) In addition, gay institution-building was fueled by the extraordinary crisis created by AIDS, and the willingness of people faced with a life-or-death situation to join together to take action. The 1987 Silence=Death project was extremely effective, in conjunction with ACT UP, in convincing enough gay people that they could no longer remain silent. Many trans people have contributed greatly to the efforts to combat AIDS, but there has been no corresponding push in the trans community to create institutions and donate money for trans empowerment.
There was an effort to create a series of trans movements around the U.S. in the 1990's called "It's Time, America," along with corresponding state chapters, but apparently it wasn't time yet. The trans organizations laboring in the vineyards do not have the economic support, staff and numbers needed to create a mass movement. There is also a curious reluctance among some trans activists to understand that fund-raising requires telling our stories in public, and that asking for money is not somehow improper. No money, no movement.
I like models like the Transgender Economic Empowerment Initiative of San Francisco, which works directly with trans people to assist them in finding jobs and keeping them. It effectively partners with other organizations, trans, gay, and mainstream, and has effectively advocated to obtain funding from the city council.
I also see a trend towards creating institutions that deal with trans children, particularly those at-risk of homelessness, violence and crime. There are a number of institutions working on this issue now, and that is key to building a healthy community. If we can't keep out children safe and get them educated, what good are employment non-discrimination laws, since they won't be qualified to work at anything?
It's also imperative that trans advocates partner with gay and LGB(t) and straight organizations to start creating traction on trans empowerment. I recognize that some transsexual activists wish to go it alone, based on the historical problem of misappropriation of identity. There are gay and straight organizations that have pretended to be inclusive, and then weren't, based either on ignorance or cynicism or both. But the trans community is too small, both in numbers and economically, to go it alone. I've worked with the Ali Forney Center, which primarily houses gay homeless teens, but it is trans inclusive and has successfully worked with plenty of trans youth. Organizations like the National Gay and Lesbian Task Force, with its Creating Change conference, have done a great deal to educate the gay community about trans issues and to create a generation of gay people who believe strongly and passionately about trans rights, even if they can be criticized for utilizing a too-facile gender theory that raises some justifiable concerns about erasure of transsexual identity. Even the Human Rights Campaign, which deserves criticism for its two-faced about-face on trans inclusion in 2007, also deserves a lot of praise for its Workplace project and its Corporate Equality Index, which has brought consistently increasing policy benefits to trans workers in large employers.
Yes, gay and LGB(t) organizations, and mainstream "straight" organizations, particularly those involved in politics, need much improvement in their understanding and support for trans issues. But who is going to educate them if we do not? I fully understand the argument that the master's tools will not dismantle the master's house. We need to work on gay people who use the excuse of being "uneducated" about trans issues to do nothing. We have been successful in creating an environment in which some gay people and gay organizations are actively looking for leadership from the trans community. But the trans community has, by and large, not learned how to take "yes" for an answer. Some vocal trans activists disdain such an idea, and criticize those who are working on this project. As a result, trans advocacy has become a minefield.
We must take an active role in guiding the larger community to understand how to advocate for trans rights properly. We must not criticize only, but we must teach those who are willing to be taught. We must become involved in political organizations and advocacy organizations in sufficient numbers to make that difference. We have started to do just that, but we need more. It is also important that gay and straight organizations begin to understand the barriers to trans participation, and to actively outreach to find and include trans people in their organizations, particularly on Boards of Directors.
The political trend I see here is trans people stepping out to work with advocacy institutions of all stripes that engage in trans advocacy work, as well as creating local organizations to empower trans people. Eventually, we will have as vigorous an institutional support system as the gay and lesbian community has today. Although it might seem like a tall order, my prediction is that the increasing numbers of young trans people coming out at earlier ages will create a large group of people wanting to get involved in trans advocacy in some aspect within ten years.
3. Coming Out
There are a lot of good reasons not to come out as trans, and I also recognize that there is no such thing as being fully out. I'm not advocating walking around with a big "T" emblazoned on one's forehead. But we, as a community, need to be out more, because most people think they don't know anyone who trans. There are probably a million people of trans identity in the U.S., not a large number in a country of 300 million, admittedly, but enough to be noticed. I do, of course, realize that most trans people simply want to lead their lives and not be a poster child. The same is true of most gay people, but, over time, enough people have come out to make a difference in the larger culture.
Of course, we have that chicken-and-egg problem that one can still be ostracized and fired and subjected to violence even after bravely coming out, which is why more people don't come out. But there are levels of coming out, and we need to start to educate ourselves about places where we can safely come out. If half of us came out, just enough to send $20 to an organization involved in trans advocacy, or more if you have it, and to add our voices in support of our trans brothers and sisters, that would fuel a movement. If a tenth of us volunteered to work with an organization doing trans advocacy, that would save a generation.
Educational campaigns like MTPC's "I AM" series is a great example of using video to norm coming out as trans. If you don't see people around you coming out, you yourself are less likely to come out. Conversely, if you see examples of people coming out in healthy ways, you yourself are more likely to come out in a healthy way. No more head-down conversations, beating around the bush like you're about to confess the commission of a felony. We need to have more educational campaigns like that, and not just in connection with a legislative campaign. That would make a huge difference.
The political trend I see here is that, although there are serious barriers to coming out as trans, more and more people are doing it in various facets of their lives. This number will only continue to grow as people of younger and younger ages feel comfortable in doing so. Eventually, as in the gay community, the idea of not being out at all anywhere will seem like an increasingly quaint custom of an older generation. As with movement advocacy, I believe that the younger generation will create a groundswell in that direction within the next decade.
These three political trends are what I see as the next hot issues in moving forward the trans agenda: state non-discrimination laws (and their enforcement), building institutions for trans empowerment, and creating a healthy environment for coming out.