November 7, 2016 at 7:01 am EDT | by Chris Johnson
State advocates reflect on rift over bathroom protections
gender-neutral bathrooms, gay news, Washington Blade

State groups are generally taking a nuanced approach on whether compromise over LGBT bathroom protections is acceptable. (Image public domain)

In the aftermath of a Buzzfeed report on a rift in the LGBT movement over whether bathroom protections in LGBT non-discrimination laws should be sacrificed in favor of incremental progress, state LGBT groups charged with making progress on the ground are generally taking a nuanced view.

The heads of advocacy groups in states that have yet to achieve LGBT non-discrimination protections, but may be on the cusp of winning them, said the situation in Pennsylvania that served as the focus of the Buzzfeed article was unique, and despite views of LGBT advocates at the national level who either embrace or reject incrementalism, each state should have its own approach.

Abby Jensen, an Arizona-based transgender activist and board member of Equality Arizona, said LGBT movement leaders can seek comprehensive protections in non-discrimination laws and be open to incremental change at the same time.

“Our position is that we believe that comprehensive protections for all LGBTQ people in employment and housing and public accommodations is what our community needs and what we should be fighting for,” Jensen said. “At the same time, political realities are such that if achieving passage of bills in all three areas is impossible, then we are willing to consider the political realities at that point and whether obtaining housing and employment protections alone is possible.”

Interviewing LGBT advocates at national organizations, Buzzfeed found a split in views on advancing state non-discrimination protections along the lines of the rift over the Employment Non-Discrimination Act in 2007 over transgender protections or in 2014 over the appropriate scope of the religious exemption.

The Gill Foundation and groups that receive its grants, including Freedom for All Americans and the National Center for Transgender Equality, reportedly argued that leaving out public accommodations may in some situations be the only way to make progress, but others like the American Civil Liberties Union, the Human Rights Campaign and Lambda Legal insisted on a comprehensive approach.

Ted Martin, executive director of Equality Pennsylvania, said the Republican-controlled legislature presented him with a “unique circumstance” of proceeding with a LGBT civil rights measure that covered employment and housing, but not public accommodations.

Although Equality Pennsylvania had been seeking and supports a comprehensive bill, Martin said Pennsylvania advocates agreed to accept the proposal after “extensive and in-depth conversations with people around the state” that included discussions with transgender advocates.

“The feedback that we really got was that they would prefer to have protections at work and housing as opposed to nothing at all, and not everyone agreed with that,” Martin said. “It was certainly not the ideal approach, but the majority of people that we talked to did. Frankly, the reality is that we have to work here in Pennsylvania with the legislature that we now have. The fact of that matter is that it now is controlled by Republicans. It is going to be controlled by Republicans for a while, and I think that there was no real chance to change that position.”

Although the compromise measure did move out of committee, marking the first time an LGBT bill saw any movement in the Pennsylvania Legislature, the bill now appears dead after lawmakers adjourned at the end of the session.

Martin said in the aftermath of the progress of the bil — and the controversy ignited over the Buzzfeed report — Equality Pennsylvania in the future will push for a comprehensive bill, but he “can’t totally say what the legislature is going to do.”

“I can certainly say that Equality Pennsylvania will always be pushing for a comprehensive bill, I can absolutely say that that will be what we’re looking for,” Martin said. “I think we have to be willing to talk, I think we always have to be willing to look at these conversations because of the environment in which we operate here in Harrisburg, which obviously is different from every other state capitol, which obviously is different from Washington, D.C.”

Other state LGBT advocates pushing to achieve statewide prohibitions on anti-LGBT discrimination say they’re insisting on a comprehensive approach.

Christoper Sgro, executive director of Equality North Carolina, said, “the story behind the Buzzfeed article was probably a unique situation” and he can’t imagine a proposal that would leave out public accommodations after the controversy in the state over House Bill 2, which barred transgender people from using the restrooms in schools and government buildings consistent with their gender identity.

“Winning public accommodations protections is the hardest win, and in some ways it’s the most crucial win, and that means that we have to be making sure that as we’re working wth legislators and our key allies and they understand what our priorities are, that they understand winning comprehensive non-discrimination protections is the only way to truly end the harm and violence that could potentially come to the LGBT community without them,” Sgro said.

Stephanie White, executive director of Equality Michigan, said LGBT advocates in Michigan are seeking a comprehensive amendment to the Eliot-Larsen Civil Rights Act after they withdrew support for a controversial measure in 2014 that would have dropped the prohibition on transgender discrimination, but kept it for gay, lesbian and bisexual people.

“In order to leave out public accommodations, we would have to actively go in and carve out part of Eliot-Larsen,” White said. “It would just have to be a very proactively negative carve-out, which is bad lawmaking first of all. It’s just ugly legislative work, but it’s also more of a sin of commission rather than one of omission, if that makes sense.”

White said “there is no one-size-fits-all for each state” and the Buzzfeed article took the Pennsylvania situation “and drew some bigger conclusions from it, and maybe some of the national partners were drawing the conclusions, too.”

Nadine Smith, executive director of Equality Florida, also said advocates in her state were pursuing a comprehensive bill because as a result of the national controversy over anti-LGBT laws in Indiana and North Carolina, “the country is sending a truly great powerful message about how they’re not buying this trumped up argument about bathrooms.”

“Our standard is clear: Laws that include protected categories must include sexual orientation and gender identity and we intend to pursue adding those to our state civil rights law next session to ensure those protections include employment, housing and public accommodations,” Smith said.

One common theme that emerged among state LGBT advocates was that transgender people should be at the table when movement leaders are making decisions about the approach to non-discrimination protections.

Jensen said “trans people are still largely excluded from these discussions,” even though the lack of non-discrimination protections disproportionately affects their segment of the LGBT community.

“That’s entirely inappropriate,” Jensen said. “If they’re deciding our future, we must be at the table.”

According to the Buzzfeed article, the American Civil Liberties Union wrote a memo dated June 1 informing Pennsylvania lawmakers the organization couldn’t support the compromise proposal because it could send a signal “public accommodations for LGBT people is politically toxic.”

As a result of the action, the Gill Foundation, a Denver-based non-profit that funds efforts to advance LGBT rights, reportedly informed the ACLU not to apply for another grant.

Martin acknowledged as he defended Pennsylvania’s approach that Equality Pennsylvania receives money from the Gill Foundation, but said “we were never threatened” and denied that was a factor in accepting the compromise approach.

Jensen, however, said Equality Arizona hasn’t received Gill Foundation funds and expressed concern about the organization denying contributions to LGBT advocates who disagree with its approach.

“I was upset at the idea that the Gill Foundation thought it was appropriate for them to use their funding as leverage to force the strategy decision on to its grantees,” Jensen said. “I think it’s highly inappropriate.”

Other state groups that said they accept money from the Gill Foundation insist they were pursuing a comprehensive approach, undercutting any idea state groups have to be willing to accept compromise to be eligible for the Gill Foundation’s money.

Sgro was among the state LGBT advocates who said his group accepts money from the Gill Foundation, but won’t let the organization dictate approach to advocacy.

“No funder — large or small — influences my understanding that we need to win comprehensive non-discrimination protections, including public accommodations, and that that’s what here in North Carolina we should be fighting for,” Sgro said.

Jeffrey Schneider, a Gill spokesperson, insisted the foundations seek to win full protections for LGBT people in every aspect of the law and bases its funding on factors other than agreement on approach.

“The foundation is totally committed to winning full protections and rights for the entire LGBT community,” Schneider said. “The foundation has always funded based on what we hear from our local partners about specific needs in their state. The foundation is unwaveringly committed to full inclusion, comprehensive solutions for the entire community.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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