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    August 04, 2007

    A trans activist tees off on ENDA

    Posted by: Chris

    Martibio1 It's a neat trick to cite the EEOC and case law that supports my position and then somehow argue that it doesn't, but Indy-based trans activist Marti Abernathy pulled it off in a post on the Bilerico Project.

    Chris Crain has repeatedly suggested that transgender people don't need to be included in the Employee Non-Discrimination Act because "existing federal civil rights laws have already been interpreted by some judges to protect trans workers. A recent Equal Employment Opportunity Commission (EEOC) informal discussion letter would suggest otherwise:

    Historically, courts and the EEOC have held that Title VII does not prohibit discrimination against an individual because of transgendered status. In the past few years, however, some courts have determined that discrimination against a transgendered individual may constitute unlawful gender stereotyping in violation of Title VII’s prohibition against sex discrimination.

    Whether discrimination against a transgendered individual may constitute discrimination based on sex in violation of Title VII is a factual question that cannot be determined outside the context of specific charges of discrimination and a complete investigation.

    Title VII only covers transgender people if their employer "sex stereotyped" them. Sex stereotyping is a form of harassment directed at a person because that person does not conform to "traditional sex stereotypes." Sex stereotyping is just as illegal against a gay people as it is against transgender or heterosexual persons. Regardless of what you're told, it's still legal to fire someone for being transgender.

    The EEOC says exactly what I said: "existing federal civil rights laws have already been interpreted by SOME JUDGES to protect trans workers."

    Is it every judge? No. Would adding "gender identity" to ENDA ensure protection? Absolutely. But my point was that, under current case law, at least SOME judges interpret Title VII to protect transgender people.

    Abernathy's assertion that "sex stereotyping is just as illegal against a gay people as it is against transgender or heterosexual persons" is misleading. I have yet to see a single court decision applying Title VII to protect a gay worker from discrimination based on sex-stereotyping.

    In fact, employers routinely argue that because the worker is gay (or the discrimination was anti-gay), then Title VII does not apply. So even though gay worker John got called a "faggot" more because he is effeminate than because he has a boyfriend, the courts rule he has no rights because Title VII doesn't protect gays.

    So rather than make the case for trans-inclusion in ENDA, Abernathy has reinforced why immediate action is needed more by gays than trans people. Comparing that need would be irrelevant, of course, if politics weren't an issue. But with the political groundwork not yet laid for trans protections, it is unfair, irresponsible and immoral to withhold protection for gay workers who need it now, for that happy day when we can also protect those "some" transgender workers who need it as well.



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    1. Chris, I'll Say It Again: You're Wrong from The Bilerico Project on Sep 22, 2007 10:38:55 AM

      With a vote coming soon on the Employment Non-Discrimination Act, I'd like to revisit something Chris Crain said a while back in his post "A trans activist tees off on ENDA" that was in reference to my post "You Can Still Fire Me". At his blog he said... [Read More]


    1. Rebecca Juro on Aug 5, 2007 9:40:24 PM:

      Y'know Chris, you keep trying to sell this same argument and it's still just as much of a loser as ever.

      Let's take a look at the facts here. For one thing, while progress on gay rights has remained relatively stagnant recently, no less than four states will have new transgender anti-discrimination laws by the end of the year, bringing the total to twelve, almost half the country in terms of population. The groundwork most certainly has been laid and we've got the results to show for it.

      In addition, we all know that the chances of ENDA becoming law before a Democrat becomes President is about as likely as you or I being voted into the White House. By ensuring that gender identity and expression protections are included in the bill now, by the time it comes up post-election it won't be all that big of a deal for the Dems to pass it with those protections intact.

      We all know that chances are neither the hate crimes bill nor ENDA will get enough votes to withstand Bush's veto anyway.

      You're still trying to party like it's 1995. That rest of us have moved on. I'd suggest you do the same.

    1. Marti Abernathey on Aug 6, 2007 2:34:02 PM:

      "I have yet to see a single court decision applying Title VII to protect a gay worker from discrimination based on sex-stereotyping."

      Probably because you aren't looking.

      Nichols v. Azteca Restaurant Enters., Inc.
      Rene v. MGM Grand Hotel

      But ignorance is bliss, eh?

    1. Bloggernista on Aug 6, 2007 7:36:22 PM:

      Rebecca, your statement that "progress on gay rights has remained relatively stagnant" is just not true. Look at recent legislative wins in WA, IA, NW, NJ and other states as examples that gay rights is continuing to advance.

      Your case about the success of recent trans inclusive legislation is strong enough without downplaying recent gay rights victories. You can also point to the recent in increase in corporate non-discrimination policies that include gender identity and expression.

      I agree with you wholeheartedly that there is a strong need for trans inclusion in ENDA. Anyone who doesn't see that is either willfully not looking or is letting their transphobia show.

    1. Rachel on Aug 6, 2007 7:42:05 PM:

      Does the fact that Bush vowed a veto on any EDNA mean anything to you? How does trans inclusion in the veto'd ENDA have any effect on the liklihood of anything? He's said he'll veto ANY 'special rights'.

      Get over yourself, you've got a near fetish with pushing down trans people. Did you 'accidentally' date one of us or something? I've never seen anyone so irrational as you, you astound me.

    1. Brian Miller on Aug 7, 2007 5:06:08 PM:

      I have an idea that can resolve this issue quickly and easily.

      Why don't we insist that gay and trans people alike get *equal rights* -- marriage, immigration, parenting, taxation, etc. -- before pushing for *special rights* like ENDA?

    1. Audrey B. on Aug 8, 2007 11:28:06 AM:

      Brian Miller is right, no good can come form ENDA.

    1. Citizen Crain on Aug 8, 2007 4:46:19 PM:

      Responding to folks in turn:

      First to Marci, the cases you cite don't support your position anymore than the EEOC report did. Both involve same-sex sexual harassment, first of all. There's no indication in Nichols that the employee was gay or even felt his sexual orientation was at issue. The only gay-related reference I could find in the entire case was a single citation to use of the insult "faggot" in a long string of examples of harassment, including physical harassment. Hardly enough to prove a gay man could use Title VII to protect against anti-gay discrimination.

      Same goes for Rene vs. MGM Grand, a case I was already familiar with, where the court ruled in fact that sexual orientation is irrelevant to a same-sex sexual harassment case. So all you can say about that case is being gay doesn't exclude you from Title VII protection. The point I'm making is that gender identity plays right into the "sex-stereotyping" line of cases under Title VII. Sexual orientation does not, and there's no line of cases to support gays using Title VII to protect against anti-gay bias.

      Becky: If you and other trans activists are right and Congress is ready to pass both categories, then the whole debate is a non-issue. So why do you need to hold ENDA hostage and demand a promise from groups like HRC that they'll dump the bill if "gender identity" isn't included in final form? Looks like to me someone isn't willing to put their money where their mouth is.

      Bloggernista, shame on you for taking a perfectly respectful argument (well close to it) and claiming anyone who disagrees is in denial or phobic. My position was carefully reasoned, and I'm willing to allow that reasonable, well-intentioned folks can disagree. Too bad your tolerance for all sorts of categories of people doesn't extend to the category of those that disagree with you.

      Same with Rachel. The only astounding thing here is that you would attack me for being "obsessed" with the issue when I was only responding to an attack made on me. Sorry but I reserve the right to defend myself and the right of gay people to workplace protection.

      Brian: Not sure I agree with your calling marriage rights as "equal" and workplace rights "special." I would agree that marriage laws are discriminatory and workplace laws represent an area the government has not chosen to extend protection. But ENDA is also much more readily achievable, so I don't buy that it should wait in line behind marriage.

      I would agree, however, that legal recognition for gay couples affects a much larger number of gay people (almost everyone) that workplace bias or hate crimes which (fortunately) impact comparatively fewer.

      But good luck getting HRC and their Democrat friends off of ENDA when the almighty polls show it'll e easiest.

    1. Rebecca Juro on Aug 8, 2007 5:28:29 PM:

      Chris, the reason is simple and obvious: Because a public promise is worth more in confidence and in votes. Let's not forget transpeople weren't even included in the 2004 Democratic Party Platform. The track record is not good here at all and personally I don't think it's unreasonable to ask for a promise.

      It's now a matter of making sure our inclusion is no longer considered optional. Given all the progress in trans rights at the state and local levels, and given that a trans-inclusive hate crimes bill did pass the House twice, the old arguments, like yours, no longer have any credibility.

      Bloggernista, I did not mean to imply that no progress has been made in the same time in gay rights, simply that far more in far shorter a time has been made in trans rights by comparison. Personally, I believe a big reason for that is precisely because of the trails blazed socially and politically for us by the gay and lesbian community. Yet, when you put the results for the last few years side by side and compare, you see that the trans community is very rapidly narrowing the gap.

      That's a testament to all who strive toward that goal together and speak out against those who would divide us.

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