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.
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