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Trans Americans enjoy robust bias protections

LGBT rights groups should educate public about EEOC decision, court ruling

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We are now two months since the landmark EEOC decision expanding the definition of “sex discrimination” under Title VII of the 1964 Civil Rights Act to include transgender and gender non-conforming individuals. These are federal protections, which cover all Americans, from Montana to Maryland to Mississippi. As a result, the trans community is also covered under President Johnson’s Executive Order #11246 from 1965, protecting all federal contract employees from discrimination.

We are also a little more than six months from the historic 11th Circuit Court of Appeals decision making transgender persons a protected class under the Equal Protection clause of the 14th Amendment to the United States Constitution. While this formally only covers Alabama, Florida and Georgia, it is part of a growing trend, and the likelihood that another Circuit will move to the right of Judge William Pryor of Alabama is very slim. So for all intents and purposes, short of a Supreme Court decision, which may never occur, all Americans are now constitutionally protected from discrimination on the basis of trans status and gender non-conformity.

Of course, nothing is written in stone; everything in life is subject to change. Even the stones containing the Ten Commandments were reported to have been smashed. Even the U.S. Supreme Court reverses itself from time to time. We minorities know full well that the price of liberty is eternal vigilance. There is always work to do, but now is the time to celebrate and educate.

Unfortunately, some LGBT organizations continue to obfuscate these momentous changes, even going so far as to foment fear in the trans community. Our job today is to increase awareness of the changes and educate the community about their rights and the process now in place to protect those rights. Instead, one national organization recently stated that there is no clear federal law protecting trans persons, and went on to say that “in 34 states, people can be fired just because they’re transgender — reasons completely unrelated to their work!”

Worse, a Maryland LGBT organization, while promoting a “listening tour,” brazenly stated, “trans people in Maryland can still be fired from a job, denied a place to live, and refused service in a restaurant because of who they are.” That’s simply not accurate. Those trans persons who live in Baltimore City and County, and Howard and Montgomery Counties, are fully protected by city and county laws against discrimination. And that same April EEOC decision now protects those persons at the federal level, and expands protections throughout the state.

There is no question about this. Arguments that the EEOC action is not significant because it only fully processes 900 cases a year are completely beside the point. There are also few race and sex discrimination cases processed annually under the 1964 Civil Rights Act. Changing the law has the effect of preventing cases from being taken all the way to court, and ultimately, when the word gets around to employers and landlords, the prevalence of acts of discrimination becomes severely reduced. Laws are primarily tools for education, not punishment.

It has also been said that the federal law is insufficient; what we really need is a state law. But in Maryland the state law has never contained a private right of action, so taking an employer to state court even with a state law would not be possible. Today one can already effectively threaten to go to federal court. Yes, it is important that our state comes up to code, explicitly covers housing and public accommodations, and announces, proudly, that it cares about its transgender citizens and will do its part, but a state law is no longer a legal necessity to protect Marylanders against employment discrimination.

A similar argument can be made about the federal ENDA law, which is explicitly limited to employment. It is important for a contemporary Congress to state, clearly and unequivocally, that transgender and gender non-conforming citizens have a right to be protected against discrimination. They owe it to us, as our representatives, to make that statement, as the president has, and enshrine it in its own law. It is essential for the gender-conforming gay community, who are not yet protected under Title VII. But while it may be a political necessity, it is not a legal necessity today to protect transgender Americans, who are covered as described above. To solidify those rights, yes. To protect the community against a backlash or retrenchment under a reactionary regime in the future, yes. To make it harder for a future Supreme Court to repudiate all the lower court decisions, yes. But let’s acknowledge and use our current robust protections, and let’s not promote ignorance because we’re unable to adapt to circumstances that have radically changed for the better.

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5 Comments

5 Comments

  1. Mike in Houston

    June 29, 2012 at 11:06 am

    While the EEOC decision was historic, it’s not clear that the rest of the bureaucracy has gotten the message – one case starts the ball rolling, but it will take several more to make it stick… It’s also not apparent to anyone who looks at an EEO poster at work that gender identity / expression is part of the equality mix…

    And before berating HRC or other national orgs for continuing to state that you can be fired for being transgender in 34 states – think about this: can you imagine the sh*t storm from the trans community if their messaging was changed to just talking about the need for employment protections for the LGB community? That may be the right legal strategy, but I can already hear the “threw us under the bus” crowd (see the companion piece from Ashley Love) ginning up their outrage machine.

  2. Dana Beyer

    June 30, 2012 at 10:14 am

    Good points, Mike. First, the bureaucracy is setting up to train the 53 EEO offices and will be rewriting its manuals. Implementation in any bureaucracy takes time.
    Second, I never said it was HRC. One shouldn’t jump to conclusions.
    Third, the question that trans people ask is simple: “What are my rights?” We have an obligation to answer that clearly and correctly.
    Finally, as for how we message going forward (and messaging is different from providing answers to the current situation), I will say what I testified in a Senate briefing on ENDA last month: We want ENDA to solidify protections for the trans and gender non-conforming communities, and it should be inclusive of sexual orientation. Until gender-conforming gay folks are covered under Title VII, and I foresee that happening in the not-too-distant future, the trans community’s motto should be “No Gays Left Behind.” We needed the gay community to stand with us; now we need to stand with the gay community (and, of course, many of us are gay, too.) Those who argue against inclusive civil rights have missed the train, the train which includes all of us gender variant persons, be we radical separatist butch lesbians or radical separatist post-op transsexual women. Curtis Mayfield sang it best back in 1965: “People get ready, there’s a train a-comin, you don’t need no baggage, you just get on board.”

  3. Abby Jensen

    June 30, 2012 at 10:23 am

    Thanks for this well-written article, Dana. There is, however, one error that needs correction. Contrary to your statement near the end, LGB, as well as straight, people *are* protected under the EEOC’s decision in Mia Macy’s case, and the principles and case law, included Vandy Beth Glenn’s case from the 11th Circuit, that underlie it. All that is required, for them, as well as for trans people,
    is proof that the cause of the discrimination against them was their gender non-conformity, not their sexual orientation or some other non-protected factor. That this is true is best demonstrated by the fact that the basis for this entire line of case law, which the EEOC’sof decision is the most recent culmination, is a Supreme Court case (Price Waterhouse v. Hopkins) in which the Court held that the denial of a promotion to a straight woman because she wasn’t feminine enough was illegal sex discrimination under Title VII.

    Another thing to keep in mind is that this same expansion of bans on sex discrimination under federal law can, and should, be appplied to state law bans on sex discrimination in public accommodations and other areas besides employment. I believe it only a matter of time before this interpretation applies throughout the U.S.

  4. Abby Jensen

    June 30, 2012 at 10:33 am

    Thanks for this well-written article, Dana. There is, however, one error that needs correction. Contrary to your statement near the end, LGB, as well as straight, people *are* protected under the EEOC’s decision in Mia Macy’s case, and the principles and case law, including Vandy Beth Glenn’s case from the 11th Circuit, that underlie it. All that is required, for them, as well as for trans people, is proof that the cause of the discrimination against them was their gender non-conformity, not their sexual orientation or some other non-protected factor. That this is true is best demonstrated by the fact that the basis for this entire line of case law, of which the EEOC’s decision is the most recent culmination, is a Supreme Court case (Price Waterhouse v. Hopkins) in which the Court held that the denial of a promotion to a straight woman because she wasn’t feminine enough was illegal sex discrimination under Title VII.

    Another thing to keep in mind is that this same expansion of bans on sex discrimination under federal law can, and should, be applied to state law bans on sex discrimination in public accommodations and other areas besides employment. I believe it is only a matter of time before this interpretation applies throughout the U.S.

    (Editor: Pardon the double posting. I’m doing this from my phone, which isn’t easy. Please approve and post this corrected comment in place of the first one. Thank you.)

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Commentary

Sondheim’s art will be with us for the ages

Iconic work explored sadness, rage, irony, and love of humanity

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Stephen Sondheim (Screen capture via CBS)

“The only regret I have in life is giving you birth,” his mother wrote in a letter to Stephen Sondheim.

The only regret so many of us feel now is that Sondheim, the iconic composer and lyricist, died on Nov. 26 at his Roxbury, Conn. home at age 91.

He is survived by Jeffrey Romley, whom he married in 2017, and Walter Sondheim, a half-brother.

F. Richard Pappas, his lawyer and friend, told the New York Times that the cause of death was unknown, and that Sondheim had died suddenly. The day before he passed away, Sondheim celebrated Thanksgiving with friends, Pappas told the Times.

“Every day a little death,” Sondheim wrote in “A Little Night Music.”

This isn’t the case with the passing of Sondheim. Whether you’re a Broadway star or a tone-deaf aficionado like me, you’ll sorely miss Sondheim, who the Times aptly called “one of Broadway history’s songwriting titans.”

Like multitudes of his fans, I don’t remember a time in my life when a song from a Sondheim musical hasn’t been in my head.

When I was a child, my parents repeatedly played the cast album of “Gypsy,” the 1959 musical with music by Jule Styne, lyrics by Sondheim and book by Arthur Laurents. My folks loved the story of the show, which was loosely based on the life of the burlesque artist Gypsy Rose Lee. You haven’t lived until you’ve heard Ethel Merman belt out “Everything’s Coming Up Roses!” When I need to jumpstart my creative juices, I remember that “You Gotta Get a Gimmick.”

In college, I felt that “Company,” the 1970 musical with music and lyrics by Sondheim and book by George Furth, spoke to my generation. 

As was the case with Sondheim’s musicals, “Company” didn’t have a conventional plot, happy ending, or tidy resolution. It takes place during Bobby’s 35th birthday party. Bobby, who is single, is celebrating with his friends (straight, married couples). Bobby likes having friends but doesn’t want to get married.

Sondheim didn’t come out as gay until he was 40. Yet, even in the 1970s, it was hard not to think that Bobby in “Company” wasn’t gay.

Once you’ve heard Elaine Stritch sing “The Ladies Who Lunch” from “Company,” it becomes indelibly etched in your brain.

Who else but Sondheim could have written, “And here’s to the girls who play/smart-/Aren’t they a gas/Rushing to their classes in optical art,/Wishing it would pass/Another long exhausting day/Another thousand dollars/A matinee, a Pinter play/Perhaps a piece of Mahler’s/I’ll drink to that/And one for Mahler!”

In September, I, along with legions of other theater lovers, were thrilled when Sondheim told Stephen Colbert on “The Late Show,” that he was working with David Ives on a new musical called “Square One.”

In his musicals from “Follies” to “Sweeney Todd” to “Sunday in the Park with George,” Sondheim, through his lyrics and music, revealed the internal depths of his characters and the sadness, tenderness, bitterness, rage, irony, wit, and love of humanity. Sondheim’s wordplay was so brilliant that he did crossword puzzles for New York magazine.

Over his decades-long career, Sondheim won every award imaginable from the Pulitzer Prize for “Sunday in the Park with George” to the Presidential Medal of Freedom (awarded to him by President Barack Obama in 2015). He received more than a dozen Tony Awards for his Broadway musicals and revivals as well as a Tony Award for lifetime achievement in 2008.

Thankfully, Sondheim’s art will be with us for the ages.

A remake of “West Side Story,” directed by Steven Spielberg with a screenplay by Tony Kushner, premieres this month.

Sondheim is a character in the Netflix film “tick, tick BOOM!,” directed by Lin-Manuel Miranda. The movie is based on an autobiographical posthumous Jonathan Larson (the composer of “Rent”) musical. Sondheim is supportive of Larson’s work.

Thank you Stephen, for your art! R.I.P.

Kathi Wolfe, a writer and poet, is a regular contributor to the Blade.

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Opinions

Publish trans employment stats

Not enough corporations that march in Pride are hiring non-binary staff

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On Nov. 10, the top-tier consulting firm McKinsey published a report on discrimination toward trans people in the workplace. The report came out with numbers that we have all known true for a long time and lead to one conclusion: Trans people have a harder time finding jobs, holding them down, and advancing in their careers. 

Specifically, McKinsey cited the fact that cisgender people are twice as likely to be employed as trans people, and that more than half of trans employees are uncomfortable being out at work. Meanwhile, cisgender employees make 32% more than trans employees in the workplace, even if those trans employees hold the same positions or higher positions. 

On top of this, trans people are 2.4 times more likely to be working in the food and retail industries, which pay entry level wages that are much less than decent pay. 

These statistics are true based on a number of factors. For one, many trans people have a harder time passing at work, and people who don’t pass well face worse job prospects. (As a side note, on top of that, the study pointed to the fact that many trans people exert undue emotional and psychological energy into trying to pass really well and not be discriminated against, which takes a toll on their mental health.) 

So what is a concrete step that corporations can take to make the trans experience in the workplace better? It’s time that corporations step up their game by publishing and making transparent the number of trans employees that they actually hire. Such numbers can be published in any kind of company document: a pamphlet, online report, or even annual shareholder’s report. As it is, most corporations do not publish numbers on LGBT employees. 

“Rainbow capitalism” is a term we know all too well: major corporations and multinationals flaunting a rainbow and trans pride flag during the month of June, but seemingly doing little to hire more trans people or give back to the community during other months. 

Every corporation surely has the time and company-wide infrastructure to get statistics on their trans employees. All they need to do is implement a company-wide survey to new hires. This takes extremely little effort and time in the grand scheme of company workings. 

If major corporations like McKinsey, Bain, Deloitte, defense contractors, and hundreds of other huge companies published statistics on trans employees, they would be held accountable for their actions and words.

If these statistics were to be published today, we would probably find out that not enough corporations that march in Pride parades are hiring trans and gender nonconforming employees. 

Turning the numbers against corporations will ensure that these same corporations finally live up to their words about workplace inclusion and diversity. It won’t cure everything about the issue of being trans in the workplace, but it’s a step in the right direction. 

Isaac Amend (he/him/his) is a trans man and young professional in the D.C. area. He was featured on National Geographic’s ‘Gender Revolution’ in 2017 as a student at Yale University. Isaac is also on the board of the LGBT Democrats of Virginia. Find him on Instagram @isaacamend.

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Opinions

Should we be scared of Omicron?

A reminder to stay vigilant against latest mutation

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It’s Sunday of Thanksgiving weekend when I sit down to write this column. The craziness in the world continues but other than the scare of the new COVID mutation, which has been named Omicron, there isn’t one headline to grab attention. Instead, there are many, including some manufactured by the news media to gain viewers or sell papers. Some like the car rampaging through the Christmas parade is frightening but incidents like this seem to be happening all too often.  

The stock market went down 1,000 points on Friday because market players freaked out about the new COVID mutation coming out of South Africa. However that didn’t seem to stop people from spending their money on Black Friday. Rep. Lauren Boebert (R-Colo.) was again on the attack this time against fellow Congresswoman Ilhan Omar (D-Minn.) accusing her of being a Muslim terrorist. She apologized, or pretended to, but again the Republican leadership wouldn’t condemn her statements. These things seemed to be grist for the news media with no one else unfortunately really voicing concern. 

Boebert’s comments were taken as old hat. They are disgusting, offensive, and dangerous, but as long as her constituents reelect her we will have to live with them. She is joined by Rep. Marjorie Taylor Greene (R-Ga.),  Madison Cawthorn (R-N.C.), and Paul Gosar  (R-Wyo.) who represent the worst in Congress and the worst of the American people. Yet again until their constituents throw them out we have to live with their stupidity and the absurdity of their being where they are. 

The new COVID mutation out of South Africa is potentially a game changer. But it will be important for scientists to look at this carefully to determine how quickly it spreads and whether or not the current vaccines will offer any protection against it. Countries around the world, including the United States, have quickly instituted travel bans for South Africans and those in countries surrounding it. The World Health Organization at this time has suggested this should not be done as it will have limited impact on its spreading and could have severe and detrimental economic impact on countries whose people are being banned. One thing we must learn from this is how important it is to ensure everyone all over the world has access to vaccines as we know the more people who are inoculated the harder it is for the virus to mutate. It is not time to panic yet and by Sunday there was some reporting this new mutation may not be any more difficult to deal with than the current ones and not lead to any more severe illness. The takeaway from all this is we need to keep vigilant, get vaccinated and get booster shots, and make sure we vaccinate our children. Continue to wear masks indoors and wash our hands. 

Now the other interesting stories last weekend were about what will happen in the Senate in the weeks leading up to the Christmas holidays. Remember the House of Representatives passed President Biden’s Build Back Better bill as a reconciliation measure, which means it can pass the Senate with a simple majority. That would mean every Democratic senator and the vice president. The focus is on two senators: Manchin (D-W.Va.) and Sinema (D-Ariz.). In reality we need to look at a number of others who will fight to either take out or put something into the bill the House passed. It is clear it will not pass in the current form and then it has to go back to the House again. 

Another issue that will be taken up is the debt ceiling. It may be a little easier than thought because as recently reported, “After taking a hard line and refusing to negotiate with Democrats during the last standoff over the debt limit, Senate Minority Leader Mitch McConnell (R-Ky.) is quietly looking for a way to get the issue resolved without another high-profile battle.” Then there is the budget and since none is passed Congress will have to pass another continuing resolution since the one they passed in September expires on Dec. 3. 

So for the next few weeks there will be a focus on the Senate to see what they do and how obstructionist Republicans want to be. Seems while things change, they somehow remain the same.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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