Sunday, January 6, 2013
Maryland Needs to Act Now
Nondiscrimination laws are established to mitigate the excessive hardship and suffering segments of our society experience. These hardships are frequent in the transgender community. In the words of Vice President Biden, transgender discrimination is “the civil rights issue of our time”
. There is opposition
to providing anti-discrimination protection to transgender individuals because
of misconceptions about gender and gender non-conformity, and over safety
concerns in sex segregated spaces. Because
of prevalent and systemic discrimination, Transgender and gender non-forming
Marylanders have solid basis for why statewide protections in areas of
employment, housing and public accommodations are required and should be
codified into state law.
A recent survey of 6400 transgender Americans conducted by the National Gay and Lesbian Task Force in conjunction with the National Center of Transgender Equality, found that sixty-three percent (63%) of their participants “experienced a serious act of discrimination—events that would have a major impact on a person’s quality of life and ability to sustain themselves financially or emotionally”. Additionally that forty-one percent (41%) had attempted suicide and that number rises to sixty percent (60%) as the frequency of those serious acts of discrimination increase. Currently sixteen states, the District of Columbia and over 100 municipalities provide for protections to transgender individuals representing forty-five percent (45%) of the country. In the state of Maryland, four jurisdictions, Baltimore City, Montgomery County, Howard County and Baltimore County established laws to provide protections for transgender individuals. These jurisdictions represent forty-seven percent (47%) of the state’s population. Of the one hundred and thirty-two (132) respondents from Maryland in the report, seventy-one percent (71%) reported experiencing harassment or mistreatment on the job; eighteen percent (18%) lost a job; eighteen percent (18%) were denied a promotion; thirty-five percent (35%) were not hired; and forty-two percent (42%) experienced an adverse job action, such as being fired, not hired, or denied a promotion. Additionally twelve percent (12%) of respondents had a household income of $10,000 or less, compared to four percent (4%) of the general population.
These clear, persistent and overwhelming examples of discrimination against transgender Marylanders deny them equal access to the same Lockean principles of life, liberty and the pursuit of happiness that other Marylanders receive. These inequities are based in the inequities found by the United States Court of Appealsfor the Eleventh Circuit’s decision in Glenn v. Brumby, that of gender non-conformity. Vandy Beth Glenn, a transsexual woman was fired from her job at the Georgia legislature after she announced she would be undergoing gender transition. The Eleventh Circuit overturned a lower court ruling, and in doing so stated Glenn’s gender non-conformity was the basis of her dismissal, and that such gender non-conformity is in fact sex stereotyping as supported by existing case law. Glenn v. Brumby references Title VII of the 1964 Civil Rights Act, the law for the entire county, when making its reasoning on overturning the lower court decision.
Our Fourteenth Amendment gives us the Equal Protection Clause wherein “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. In Macy v Holder, the Equal Employment Opportunity Commission handed down a ruling in favor of Mia Macy, a transsexual woman denied a position the Bureau of Alcohol, Tobacco, Firearms, and Explosives after disclosure in a background check showed Ms. Macy was transitioning from male to female. Prior to the discovery, she had been promised the position over the phone, pending the background check. The EEOC stated “[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition….”
The non-establishment of codified protections in the State of Maryland for individuals based on their gender identity and/ or expression will leave some Marylanders without full and equal protection which are afforded all other Marylanders. This sets up conflict with the Equal Protection Clause and non-compliance with the EEOC ruling providing protections to government workers and federal contractors. The scope of the EEOC is limited and not binding in state court. It is also an administrative ruling and as such subject to change. Protections happen when law is supported by court decisions or court decision precipitate new laws. In Maryland, it is time for some rain to fall.
Opponents to codifying protections into law have stated as their primary claims, two ideas. The first is gender is not changeable and thereby one’s birth sex is constant and that such laws will open sex segregated spaces up to predators and cause increases in rapes and assaults by men against women. On the first account, much of this argument is theoretical and outside the scope of this discussion. However, Maryland’s MVA, an executive branch administration, provides a pathway for transgender Marylanders to correct their gender marker on state issued identification consistent with ones gender identity. Additionally, Maryland courts provide for legal name changes and birth certificates to be amended. It is clear the state of Maryland already recognizes the gender in-congruence many of its residents face and is responsive to their needs. Yet, civil rights are not based on scientific validation of a protected class’ qualification for entry into that protected class. No DNA test is used to determine one’s ethnicity for example. There are no litmus tests to determine one’s creed. The perceived qualification of the object of discrimination, by the perpetrator of the discrimination, is what is of concern.
In the second claim, as the Glenn and Macy cases have determined, perception of non-conformity to a sex stereotype is sufficient. In Maryland the first jurisdiction to pass protections for transgender residents was Baltimore City in 2002
. There was no
opposition as this City ordinance passed without any attention from opponents.
However, by the time Montgomery County passed a bill to provide protections in
2009, opposition had formed and their narrative had been developed. The claim presented by opponents to gender
identity protections in Maryland, state that men will be allowed in the lockers
and restrooms with women. Furthermore that such encounter will produce
increases in sexual assaults. Dr. Jacob claims
assaults by strangers in bath rooms will rise.
According to the US Bureau of Justice statistics the percent of sexual assault committed by a stranger was twenty-six (26%). In 2010 the total reported cases of rape/sexual assault were 188,380. This means approximately 49,000 sexual assaults were the sort which Dr. Jacobs claims. However, remembering back to the statistics in reference to how much of the country is currently covered by laws protections people based on gender identity, only forty-five percent (45%) of the county is covered. So Dr. Jacob’s claim could only have weight on approximately 22,000 of these reported cases.
Statistics suggest that with approximately 22,000 sexual assaults potentially happening in 45% of the country where gender identity laws exist; there will be examples of assaults specifically attributed to a loop hole or flaw in such bills. To date, no cases can be cited. If there was just a one-tenth of one percent spike because the claim might be true, we could find 22 cases per year. These laws have been on the books since 1975
The lack of verifiable evidence and no strong argument for making claims that
gender identity laws will threaten the security of women and girls in sex
segregated spaces demands we reject this false claim as the logical fallacy it is.
With overwhelming and verifiable discrimination, and lack of real and verifiable claims of harm resulting in codifying critical protections into law, transgender and gender non-conforming Marylanders have solid basis for why statewide protections in areas of employment, housing and public accommodations are required and should be codified into state law. There is nothing symbolic about doing that. The time is now.