The recession won’t be over until ENDA is passed

The road to passing federal legislation can be long and arduous, and to some extent this is simply the nature of the beast – the beast, in this case, being our national legislature. We do well to remember, however, that while we are waiting and working to overcome this or that procedural hurdle in Congress, transgender Americans are facing blatant discrimination right now.

Case in point: today the New York-based Transgender Legal Defense and Education Fund filed a complaint with the Florida Human Relations Commission on behalf of Zikerria Bellamy, a young trans woman in Orlando. Zikerria applied for a job at a local McDonald’s in July, but she never got an interview. Instead, she got a vicious transphobic voice mail message from a McDonald’s manager, stating that they would never hire someone like her.

Legislation to protect transgender workers from this kind of discrimination has been proposed, but not yet passed, in both the city of Orlando and the Florida legislature. The state’s Human Relations Commission has permitted transgender workers to bring complaints under the state’s sex discrimination law in the past, and Zikerria is seeking protection under that law.

What’s unambiguously clear, however, is that Zikerria would have been protected by ENDA if it had been on the books. Right now, Congressional leaders are preparing to rush through a package of measures intended to create and preserve jobs, which they hope to pass before the end of the month. Yet whatever Congress does to address the current unemployment crisis will be incomplete so long as transgender people remain unemployed at twice the rate of the general population. Until ENDA is passed, transgender people face a kind of permanent recession. With each delay on ENDA, more LGBT people will lose or be denied jobs because of ignorance and bias. We need to mobilize for this bill like our lives, or at least our livelihoods, depend on it – because they do.

Name changes and forced outing: a small victory

Governments force transgender people to disclose that they are transgender all the time. They make us carry around little pieces of paper and plastic with our birth-assigned sex listed on them, just begging any police officer, bank teller, customs official, airline agent or the like to ask just what are you anyway? They keep that old sex designation in computer files – your driving record, your Social Security record, Medicare record – that get shared here and there. They make us appear in open court, or take out an ad in the newspaper, to announce that we’re changing out name from Kate to Kevin, or from Kevin to Kate. They say this is necessary for “accuracy” and “fraud prevention.” These government systems very seldom recognize the very real dangers of the official outing of trans people in so many areas of our lives – the dangers not only of embarrassment, discrimination and harassment, but the very real danger of violence when we are outed against our will to untold numbers of strangers. So it was refreshing recently to see one government body – namely a court in Westchester County, New York – show a genuine recognition of these dangers.

State courts hear thousands upon thousands of petitions each year from individuals seeking to change their names. These petitions are usually granted perfunctorily, and very rarely result in written opinions, let alone published ones. Except, it seems, when they are filed in New York, and by a transgender person. Since 1968, I’m aware of at least at least seven New York published court opinions dealing solely with a transgender person’s name-change petition. Over the years transgender New Yorkers have fought to get courts to apply the name-change statute fairly to them. In 2003 a trans woman won a decision that, contrary to earlier opinions, proof of a surgical procedure was not required for her name change. Earlier this year a young trans man won his case on appeal, repudiating dozens of cases in which judges had required clinical documentation of a person’s gender identity for a name change.

Make that eight, with a ruling from the Supreme Court in Westchester County on November 10. In this case, another young trans man petitioned for an exception to the standard New York practice of publishing a notice of the name change in an area newspaper. Many jurisdictions have such a requirement, and only some of them provide for a discretionary exception. Past petitioners in New York had gotten such an exception because they were victims of domestic violence. In this case, the court pointed to numerous reports indicating the high rates of bias-motivated violence against transgender people, and to the recently passed Hate Crimes Prevention Act. The judge concluded that “while petitioner did not, and hopefully could not, cite a personal experience of violence or crime against him based on his gender identity, he has made a compelling argument as to why, at the age of twenty, he has a right to feel threatened for his personal safety in the event his transgender status is made public.” Accordingly, the judge granted the exemption, made the name change immediately, and ordered that the court records be sealed. The case is In re E.P.L., --- N.Y.S.2d ----, 11/16/2009 N.Y. L.J. 40, 2009 WL 3764453 (N.Y. Sup. Ct. Westchester Co. Nov. 10, 2009).

This is not a binding legal precedent, and it doesn’t speak directly to trans people’s issues with passports, Social Security records, and on and on. But it does reflect a rare official recognition that government-mandated outing is dangerous for trans people. And that’s a start.

N.Y. Court Slams Doctor’s Note Requirement for Name Change

A New York appeals court yesterday issued a two-page ruling overturning a lower court’s requirement that a transgender man present medical documentation supporting his petition for a name change. The NYC-based Transgender Legal Defense and Education Fund, which represented the petitioner, said in its press release:

[T]he appellate court wrote, "[t]here is no sound basis in law or policy to engraft upon the statutory provisions an additional requirement that a transgendered-petitioner present medical substantiation for the desired name change." The court's decision sends a powerful message that transgender people must be treated equally and that they cannot be subjected to different legal requirements than everyone else. People’s names are fundamental to their identities. This decision confirms that each one of us has the right to be known by a name we choose. That decision can’t be second-guessed by doctors, therapists or anyone else simply because someone is transgender.

Upon learning of the ruling, Olin [Winn-Ritzenberg, the petitioner,] said, "This means that I can finally change my name and move forward with my life. My gender transition has been a very personal journey, and no one is in a better position to decide that I need to change my name than I am."
…

It’s well settled in law around the country that transgender folks can follow the same simple procedures for name change as individuals who are changing their names because of marriage, religious conversion, or for any other reason. Yet, around the country, judges periodically try to make it harder for trans people than for anyone else. Despite numerous prior New York court decisions supporting the right of transgender individuals to change names without meeting any special requirements, this particular lower court had been imposing the “doctor’s note” requirement routinely on transgender individuals. While most individuals were able to comply, TLDEF appealed in this case to get rid of this requirement once and for all. Kudos to them, and to the numerous other lawyers who assisted in this appeal, including Lambda Legal.

The terse decision concludes with the unnecessary statement, which has somehow become boilerplate for New York courts, that the grant of a name change is not legal proof of change of gender.

Uruguay passes landmark gender identity law

Uruguay’s legislature Monday finalized legislation that will guarantee transgender people’s right to legal recognition of their gender identity based on the reality of their life in society as a man or woman. The legislation, based on similar laws adopted in the United Kingdom in 2004 and in Spain in 2007, is the most progressive of any Latin American nation. Following final approval by the Uruguayan House and Senate, the bill now goes to President Tabaré Vázquez for his signature.

The legislation begins with the statement that “Everyone has the right to free development of his personality according to his own gender identity, regardless of their gender is biological, genetic, anatomical, morphological, hormonal, or other assignment.” An individual will have the right to change his or her sex in the civil registry based upon the “stability and persistence” of gender dysphoria for at least two years. The bill calls for an interdisciplinary expert team, similar to the UK Gender Recognition Panel, to be set up by the government to evaluate applications for civil sex change. Once the civil register has been amended, an applicant is considered to be his or her new gender for all legal and administrative purposes. (A full English translation is not yet available; this description is based on the Spanish version on the Parliament's website.)

In addition to an applicant’s own testimony, the team may consider the testimony of the individual’s health care providers and “people who know the daily lifestyle of the applicant.” However, the law does not require medical evidence be submitted, and “under no circumstances” is proof of surgery to be required. This is similar to the UK law. By contrast, Spain requires proof of some form of medical treatment for a two-year period, except in cases of old age or illness.

Unlike laws in several other countries, Uruguay’s legislation does not require that applicants be childless or unmarried, or that married applicants divorce. The law states only that it does not change existing laws regarding marriage – a concession to conservatives who wanted it made clear that this law does not establish same-sex marriage. Another unusual provision requires a five-year wait in the rare case of an individual wishing to return his or her civil sex to the birth sex.

This is not the first groundbreaking stride in LGBT rights for the South American nation, which lies just south of Brazil. President Vázquez’s Broad Front coalition made Latin American history in 2007 by passing civil union legislation. Earlier this year, legislation guaranteed same-sex couples the right to adopt. The senator who introduced the civil union law has promised that if the Broad Front prevails in national elections later this month, legislation establishing marriage equality will be introduced next year.

The Disparate Impact Non-Issue

At last week’s House Education and Labor Committee hearing on ENDA, witness Camille Olsen, an attorney who represents employers, raised several questions about what she characterized as ambiguities in the bill. Among the points Olson raised was the question of “disparate impact” claims under ENDA. Olson’s technical arguments were potentially confusing even for an attorney like myself, so it’s worth trying to explain them in plain English.

Under existing employment discrimination laws, there are two types of unlawful discrimination claims. “Disparate treatment” cases are where there is evidence of intentional discrimination by the employer. Vandy Beth Glenn suffered a classic case of disparate treatment when her boss fired her for the stated reason that she was transitioning from male to female. The principle of “disparate impact” is different: an employer may not take actions that have the overall effect of excluding a group of people, unless there is a sufficient reason to do so. For example, height and weight requirements have a disparate impact on women because (even though some women would meet them) they tend, on average, to exclude more women than men. Unless an employer can demonstrate a sound reason for using these requirements, they will be deemed discriminatory.

The law of disparate impact has been a powerful tool for promoting the inclusion of women and minority groups in the workplace. Some conservatives, however, oppose it because they view it as a form of “reverse discrimination.” Justice Antonin Scalia even speculated earlier this year that disparate impact laws could be unconstitutional. Because it has become something of a political football, disparate impact would be a sticking point under any new antidiscrimination law. But as Rep. Robert Andrews pointed out at the hearing, it would be hard to think of a situation where a disparate impact claim could be brought under ENDA. (No short men or tall women? No Streisand fans need apply?) So, to avoid distracting debates on the subject, ENDA states that “Only disparate treatment claims may be brought under this Act.” That seems plenty clear to us. But Olson suggested that ENDA needs, well, added redundancy: to provide in so many words that disparate impact claims are barred, and that “disparate impact” means that same thing it does under every other law. Of course, as Acting EEOC Chair Stuart Ishimaru stated at the hearing, that’s really not needed: read in context, the bill is already crystal clear.

Like many of the other questions that have been raised about ENDA, this one is really a non-issue. We can expect to see more such non-issues raised in the weeks ahead.

ENDA: Why state discrimination matters

At last week's House hearing on ENDA, not just one but two witnesses testified specifically to the existence of longstanding and widespread discrimination on the basis of sexual orientation and gender identity by state governments. Yale Law Professor William Eskridge recounted the historical campaigns of exposure and exclusion of LGBT public employees. And UCLA Law Professor Brad Sears summarized an extensive new report by the Williams Institute on the past and present extent of state employment discrimination. Why so much attention to state employees, who make up less than 5% of the American workforce are currently more likely to be protected under state law than private-sector workers?

The answer lies in a peculiar series of U.S. Supreme Court rulings over the last fifteen years. Those cases have sharply limited the compensation available to public employees under federal civil rights laws, on the theory that state governments possess "sovereign immunity" from employees' claims. For example, the high court held in 1991 that state workers fired because of a disability could not obtain back pay, even though it was specifically guaranteed by the Americans with Disabilities Act. The justices reasoned that Congress did not muster sufficient evidence that discrimination against state employees in particular was a widespread problem that would justify subjecting states to lawsuits. While Congress, civil rights advocates and most legal scholars were incensed, this special requirement has hung over many civil rights laws ever since, threatening to create a substantial hole in legal protections. (An article I wrote in my previous job discusses these legal doctrines in more depth.)

Because much of the discrimination suffered by LGBT workers occurs in the public sector - such as the blatantly discriminatory firing of Vandy Beth Glenn by the Georgia legislature - ENDA's drafters and supporters have taken great pains to ensure that state workers are fully protected. This is being done by two methods. First, ENDA specifically requires that state governments waive any immunity from lawsuits as a condition of continuing to receive federal program funds - an approach that has been effective under a number of other laws. Second, the Williams Institute lays the foundation for what may be the most extensive congressional record ever concerning employment discrimination by states.

If this sounds like a lot of technical hoops to jump through, that's because it is: these legal doctrines, invented by a narrow majority of the Supreme Court, create rigid and artificial barriers to protecting the civil and constitutional rights of LGBT employees - and indeed, of all employees. But for the moment, these are the rules of the game, and it is a testament to the dedication of our Congressional allies, and the researchers at the Williams Institute, that no stone is being left unturned to ensure that no transgender worker is left unprotected.

Schroer case shows why we need ENDA

After four years of fighting in court under the last Administration, the U.S. Department of Justice decided last month not to appeal Diane Schroer’s landmark victory in her discrimination suit against the Library of Congress. Diane, a U.S. Army Special Forces veteran and counterterrorism expert, was offered a position at the Library for which she highly qualified, only to have that offer rescinded on the basis of her gender transition.

The decision not to appeal was not really a surprise, coming as it did only days after a White House memorandum that is expected to lead to clearer protections for transgender federal employees. What happened to Diane should never have happened in the first place. Like the rapidly growing number of private employers with explicit nondiscrimination policies on the subject, most federal officials making hiring decisions today would realize that a person’s gender identity or expression is irrelevant to their ability to serve their government. They would realize that what happened to Diane is exactly the kind of irrational, non-merit- based discrimination that the Civil Service Act has long prohibited. Indeed, Diane wouldn’t have been the first out transgender person to work for a federal agency, or even for the Library of Congress.

But the blatant discrimination Diane experienced did happen, and that’s not surprising either. Most employers, even large ones, don’t yet have clear antidiscrimination policies, nor do most states or cities. Even with public and private employers alike increasingly recognizing that gender identity is irrelevant in the workplace, there are outliers, managers who are motivated to discriminate by ignorance or bias. That’s why, even with Diane Schroer winning in court, we need clear guidelines for the federal workforce. It’s why, ultimately, we need ENDA: to set a clear, consistent, national policy that in this country we do not discriminate based on gender identity, any more than we discriminate on the basis of religion, age, race, or disability. Passing ENDA won’t end discrimination once and for all – there will still be lawsuits like Diane’s. But it will establish unambiguously what most Americans already believe: that this kind of discrimination is never acceptable.

A challenge to nondiscrimination falls flat

Opponents of equality, recognizing that they are losing the public debate, have been arguing in a variety of contexts that recognizing the basic civil rights of transgender people, and of LGBT people generally, will somehow threaten the rights of others. These claims are always either nebulous or demonstrably false, so it is no surprise that they were soundly rejected by voters in Gainesville, FL in March of this year. The truth is that securing equality for transgender people in employment, housing, education and public accommodations harms no one and benefits everyone. Although opponents have tried to focus these debates on bathrooms, the truth is that transgender people have to use the bathroom just like everyone else.

This point is illustrated by an ill-conceived, and recently dismissed, lawsuit brought to challenge California Senate Bill 777, which prohibits discrimination based on gender identity or expression in education. Anti-equality groups brought this lawsuit last year, claiming that SB 777 is overly vague and violates the rights of teachers and students. They argued that students and teachers would be at risk of unintentionally discriminating against other students because they were unable to ascertain other student’s gender identities. They also argued that students’ safety and privacy would be threatened by having to share a locker room with a transgender student. Several LGBT organizations filed a friend-of-the-court brief in the case extensively rebutting these arguments.

Two weeks ago, the Sacramento Superior Court dismissed the suit, saying it was meritless. The court said there was no reason to think the law would be difficult to apply, and the fact that identical laws have been in place in numerous other jurisdictions, and in different areas of California law, without difficulty, indicates that it is not too vague. The court also said that the challengers failed to point to any instance in which the law threatened any individuals’ safety or privacy. The only incident alleged in the suit concerned a student who claimed he was forced to use the same locker room as a transgender student. The court said that this bare, “conclusory” allegation did not suggest any threat to anyone’s safety or privacy. The court appeared to accept, as the LGBT groups argued in their brief, that merely being uncomfortable around someone else is not a violation of one’s rights.

This ruling will doubtless be appealed, and just as surely it will be affirmed. The groups bringing the suit declined the court's invitation to add further allegations showing how students or teachers would be harmed by the nondiscrimination law. Tellingly, the groups declined to do so. In court, opponents of equality can't simply recite vague concerns about "privacy and safety"; they have to be able to back them up. The problem for equality opponents is that they can't back these arguments up with any specifics; there is nothing to them.