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  • « Meanwhile back at the movement | Main | Iran's president, Columbia queers agree »

    September 23, 2007

    Little Miss Missed the Point

    Posted by: Chris

    CcshirtOf the bloggers who cross-post over at Bilerico, Marti Abernathy is among the most amusing if not mature (see her accompanying photo-art).  If you're not familiar with it, Bilerico is a gay P.C. spinzone that talks a lot about "dialogue" so long as no one actually dissents.  If it all sounds like a snoozefest, it mostly is, with some rare exceptions like Karen Ocamb. Not surprisingly, they publish potshots at me so regularly that they've set up a "tag" with my name on it.

    Back to Abernathy, she's a transgender activist who has T'd off on me before, and hits the same notes again this time around, trying to play gotcha with a federal appeals court decision last week that shot down a lawsuit by a transgender bus driver in Utah fired from her job.

    Krystal Etsitty (yes, that's her chosen name) had argued that discrimination against transsexuals is a form of gender discrimination prohibited under Title VII federal law.  But Krysal (why didn't she just go with Kitty?) Etsitty lost, and Abernathy cites that as proof I was wrong for saying before that "under current case law, at least some judges interpret Title VII to protect transgender people."

    I have indeed made that point to argue that, while I support transgender workplace rights, I don't support the traitorous and silly HRC and NGLTF strategy of actually withdrawing support for gay workplace rights if a trans-inclusive ENDA stalls in Congress. So far, the politics bear me out. Nine months after the Democrats took Congress, the trans-inclusive ENDA hasn't even gotten out of a House subcommittee (though HRC somehow considered the fact that it got a hearing to "historic").

    You'll often hear trans activists and their gay apologists cry out in their best MLK intonation that discrimination against any of us is discrimination against all of us.  What they don't tell you is that they're perfectly happy to see us gay folk get shit-canned and demoted at will until America is ready to give transsexuals their rights as well.

    Transgender workers do need protection, no doubt, but my point has been that since Title VII already covers some, if not all, forms of discrimination against them, even their need for ENDA isn't as pressing. Abernathy, on the other hand, is mostly in an argument with herself, quoting the Etsitty opinion for the proposition that courts are universally rejecting the idea of protecting transsexuals as a class under Title VII.  The only problem is that I've never argued that.

    As she well knows, Title VII also provides protection against gender-stereotyping in the workforce, and the type of discrimination transgender workers often suffer from is, in fact, covered, as the Etsitty court acknowledges:

    This court is aware of the difficulties and marginalization transsexuals may be subject to in the workplace.  The conclusion that transsexuals are not protected under Title VII as transsexuals should not be read to allow employers to deny transsexual employees the legal protection other employees enjoy merely by labeling them as transsexuals. …

    Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.

    As another appeals court, for the Sixth Circuit (covering Michigan, Ohio and Tennessee) puts it:

    Just as an employer who discriminates against women for not wearing dresses or makeup is engaging in sex discrimination, … employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.

    The Etsitty court even cites an opinion from the First Circuit (covering New England) that concluded a transsexual could sue for sex discrimination under the Equal Credit Opportunity Act, and another from the massive Ninth Circuit (covering the Western U.S.) that relied on Title VII to conclude that violence against a transsexual was violence because of gender under the Gender Motivated Violence Act.

    The reason Krystal Etsitty, a male-to-female pre-operative transsexual, lost her case was because she failed to prove her firing was motivated by sex-stereotyping. She was fired because she insisted on using the women's restroom at public toilets on her bus route, and her bosses said they feared they would get sued by offended members of the public if she did. Her employer's worry certainly sounds overwrought to me, but not every stupid employment decision should result in a lawsuit, even in the litigious U.S. of A.

    A trans-inclusive ENDA may well have saved the day for Etsitty, who could then fulfill her destiny as the Rosa Parks of the public toilets on her bus route. And before I get a chorus of nasty comments, I am well aware that the "toilet issue" is a sensitive one for transgender folks, who are offended by the politicization of such an intimate and personal act. But that's exactly why, of course, it's an area of such difficulty for non-transgender people as well.  Too bad their feelings don't count.

    If you ask me, and no they didn't, trans activists ought to spend less time trying to ride (or yank back) gay coattails on their way to workplace protection and do the difficult education and political work necessary to resolve these sorts of sensitivities. Racial minorities and gays have had to fight their own battles about intimate public spaces, and it's still a reason given for excluding gays from military service.

    But you don't get to leapfrog past these debates; you have to prepare for them and fight them. And there are quite a few gay people — including the vast legion of us who roll our eyes at the politically correct "amen chorus" at HRC dinners and Bilerico — who are unwilling to wait on gay workplace protection so that Krystal Etsitty can use the women's toilet on her bus route.

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    Listed below are links to weblogs that reference Little Miss Missed the Point:

    1. Let's give them something to talk about from The Bilerico Project on Nov 10, 2007 11:23:39 AM

      I've had fun over the past few weeks since our re-launch watching what other bloggers are saying about The Bilerico Project. When we were announced as a finalist for the 2007 Weblog Awards, the blogosphere lit up with those one sentence clips to descri... [Read More]

    Listed below are links to weblogs that reference Little Miss Missed the Point:

    1. About Us from The Bilerico Project on Dec 23, 2007 9:23:17 PM

      Welcome to the Bilerico Project! The Bilerico Project is the internet's largest LGBTQ group blog with 50 lesbian, gay, bisexual, transgender, queer, and genderqueer contributors. The Project is the coming out and together of LGBTQ activists, politicos,... [Read More]

    Listed below are links to weblogs that reference Little Miss Missed the Point:

    1. About Us from The Bilerico Project on Sep 22, 2009 7:44:31 PM

      The Bilerico Project is the web's largest LGBTQ group blog with over 75 lesbian, gay, bisexual, transgender, queer, and genderqueer contributors. The Project features LGBTQ activists, politicos, journalists, novelists, advice columnists, and video blog... [Read More]

    Comments

    1. Eric on Sep 24, 2007 5:03:32 AM:

      Great blog! I added you to my blogroll. I'd appreciate it if you'd consider linking back.

      Most blogs allow you to enter your blog url in a special field in the comment section. If the blog doesn't have that feature, then you will also need to put my url in the comment.

    1. Ingrid on Sep 24, 2007 12:03:10 PM:

      Chris,
      Like you I get fired upon when I say some of the things you do about trans rights. I'm in no way opposed to trans rights but am opposed to including every supposed "minority" group under the gay and lesbian umbrella. I still don't buy that bi-sexuals are real and that they are discrminated against but that's just me. I say give the trans community our boilerplate and let them fight the necessary fights instead of simply grabbing on to our coattails.

    1. Double T on Sep 24, 2007 12:28:04 PM:

      Love the T-Shirt.
      It's the perfect Christmas Gift.

    1. Dave on Sep 24, 2007 7:05:08 PM:

      I am not willing to throw transgendered people under the bus like you Chris. It is unfortunate that you are. You sound like Hillary and Obama when it comes to Marriage rights for Gays-I will support you up to a point- because they are to cowardly to support us unequivocally. FYI I think the name Chrissy suits you much better.

    1. Susan CVJ on Sep 24, 2007 8:06:15 PM:

      Dude, are you selling those T-shirts? I would totally buy one! So cute.

    1. Citizen Crain on Sep 24, 2007 8:20:04 PM:

      Susan CVJ, with old friends like you, who needs old enemies? ;)

    1. DaveNPa on Sep 25, 2007 5:18:19 PM:

      So the Tshirts AREN'T FOR SALE?!?!

      Bummer. ;-)

    1. Rebecca Juro on Sep 26, 2007 11:38:02 AM:

      Dave,

      Nice to see I'm not the only one making this point. In '04, John Kerry first refused to endorse trans inclusion in ENDA, which most of the major advocacy orgs and their pet pols totally ignored. Then, once Kerry had accomplished that with little or no backlash, he came out in favor of a same-sex marriage ban in Massachusetts. A coincidence? I don't think so.

      In my opinion, the community gave Kerry a pass on treating transpeople like shit for his own perceived political advantage, and in doing so, we made it easier and more likely that he'd boot the gay and lesbian community over the side right behind us as soon as it became politically convenient for him to do so.

      What I wonder is when Chris and like-minded people will realize that when we allow politicians to treat one of segment of our community badly without having to pay for it in the court of public opinion, it simply makes it that much more likely that they'll do the same with the rest of it. When we look the other way when stuff like this happens, we're giving these people permission to treat the entire community like crap and not have to worry about the consequences.

      Oh yeah, and hey, Chris, speaking as a Bilerico contributor, if you really think the site is a PC spin zone, you haven't been paying attention. I suggest reading the comments, not just the postings, for a clearer picture.

    1. Citizen Crain on Sep 26, 2007 2:05:03 PM:

      Eric: Thanks for the kudos. I didn't intentionally exclude URLs from the comments. Are you sure you can't include yours? Just like this: http://www.citizencrain.com.

      Rebecca: Ironic that you say "the community" gave Kerry a pass on trans issues. The Blade and the other papers I oversaw reported that story first and more heavily than any others I saw.

      I would agree with you that there is a connection between how Kerry dealt with trans rights and marriage. The connection is that, like Hillary (as Dave points out) he is a politician who lacks the courage to lead. So he stayed safe, which in 2004 was opposing trans rights and marriage.

      But your argument falls apart when you try to make a causal connection. Just look at the candidates this time around. All the top Dems support trans-inclusion in ENDA and hate crimes and yet none supports gay marriage. Maybe our trans brothers and sisters aren't yelling loud enough on OUR behalf eh? ;)

      As to Dave's claim that I would "throw" trans folks "under the bus," I would argue that you've got that backwards. They're the ones with the gall to suggest that we shouldn't be protected in the workplace until they can as well.

    1. Citizen Crain on Sep 26, 2007 11:29:41 PM:

      Oh and Rebecca, it's quite telling that your defense of Bilerico suggests that to find diversity of opinion you have to delve into the comments. That just about says it all in terms of the diversity of those doing the posts. Imagine an editor of a newspaper admitting the only diversity of thought was in the letters to the editor, not among those writing the columns.

    1. aebrain on Sep 27, 2007 12:03:41 AM:

      So naturally, you'd support an ENDA that didn't protect Lesbians, on the grounds that "They're the ones with the gall to suggest that we shouldn't be protected in the workplace until they can as well."

      If that isn't your position - why not?

      I'll support an ENDA with or without Trans provisions. It's a matter of Human Rights.

      But your views are repugnant to me. Unless you can say that you will work just as hard after a non-trans ENDA is passed for a new trans-inclusive one, as you did before. Somehow, I don't think that's your intention.

    1. Citizen Crain on Sep 27, 2007 11:52:12 AM:

      Zoe Brain, sorry my views are repugnant to you; yours are just nonsensical to me. ENDA covers protection on the basis of sexual orientation, not on the basis of "gay male," so you can't exclude any sexual orientation, whether it be lesbian, gay male, bisexual or straight

      I also don't buy into the notion that we owe it to you to work as hard for trans-ENDA as our own. Where the hell does that come from? You certainly won't get there by trying to hold our ENDA hostage.

    1. Rebecca Juro on Sep 27, 2007 12:16:18 PM:

      Yeah you did report Kerry's sellout of our community, but I'd remind you that it was the Blade, under your leadership and in concert with your own editorials on the matter, which helped to give Kerry a perceived community "OK" on dumping trans rights. You helped to set that ball rolling Chris, don't try to absolve yourself from responsibility now.

      YOUR ENDA? I don't think so. Last I checked, legislation doesn't belong to any particular group, it belongs to the American people. Do you really think ENDA will survive Bush's veto pen and become law anyway?

      This is Democratic cowardice plain and simple. This is the Party showing us how big of a mistake we made by trusting them to stand up for us, again. This is the Democratic Party telling the trans community and everyone who believes that basic civil rights are for all Americans that nothing has really changed since '04 and they are still as much the enemy of true equality in America as the GOP is.

      This is the Democrats saying "April Fool!" to transpeople, and later, the gay and lesbian community will hear it again themselves as you get booted over the side as soon as Hillary or whoever decides you're politically inconvenient.

      This is Congress proving that the only thing in Washington that has really changed in the last election are a few nameplates in Capitol office buildings.

      So, go ahead Chris, advocate sending us down that same path of failure yet again. After all, it's not like we all don't have another twelve years to wait, right?

    1. eastsidekate on Sep 27, 2007 5:03:58 PM:

      Um, maybe some people think Chris is a stupid name.

      I haven't commented here before, because I think the two of us are so far apart that there's really no point in attempting to have a dialog. But, in the course of searching for info on the Etsitty appeal, I came across this thread and felt compelled to comment.

      I'll let others argue with you over the importance of what "some judges" think. Suffice it to say, your repeated snide remarks about Krystal Etsitty call for an apology (to her) or a retraction-- they're just hateful.

    1. aebrain on Sep 27, 2007 9:11:38 PM:

      I also don't buy into the notion that we owe it to you to work as hard for trans-ENDA as our own. Where the hell does that come from?

      OK, reasons for it:

      * it's the right thing to do.

      * not doing it undermines your argument - it's already difficult enough me pursuading other straights that ENDA is important, if there's no argument based on justice, there's no argument at all.

      MLK's "I have a Dream" would have been nowhere near as powerful if he had said "..not be judged by the color of their skin, but by the content of their character. Except for Chicanos."

      Please, if you're going to sell them down the river, don't call them your "trans brothers and sisters". At least you've been honest with your transphobia elsehere, that "why didn't she stick with kitty" comment is a dead giveaway.

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