Transgender Workplace Diversity

Transgender workplace diversity law, politics and policy for HR, diversity and legal professionals

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25 weeks 6 days ago

April 29, 2007

23:15
ENDA Lobby Days     
NCTE, the National Center for Transgender Equality, is calling on those interested in advocating for ENDA to come to Washington, DC, on May 14 -15, 2007, for what is shaping up to be the largest lobby day in transhistory. I know I'm planning on being there.Already, more than 70 participants have signed up--representing more than 20 states.ScheduleMonday, May 14, 20073:00pm – 5:00pm: Training at HRC Equality Forum Room1640 Rhode Island Avenue NW, Washington, DC 200367:30pm – 9:30pm: Reception at the National Press Club, 529 14th Street NW, Washington, DCTuesday, May 15, 20079:00am – 4:30pm, Rally and Lobby Day Visits on Capitol HillMore at http://nctequality.org/lobbyday.htmlIf you’re not on NCTE's email list and would like to get updates, sign up here: http://nctequality.org/Mailing_List.asp(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
20:15
Transgender Workplace Diversity blog moving     
As you know, this blog is found at http://jweissdiary.blogspot.com, for the reason that it began as a diary of my research. It has changed over the past year into a research tool for others interested in the law, politics and policy of transgender workplace issues. The old url is sounding more and more dated, as well as hard to remember.I have decided to move everything over to http://transworkplace.blogspot.com. This will happen in the next two weeks, as I figure out how to move everything over to the new site. I'm praying that everything works. Keep your fingers crossed for me.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
20:15
Pennsylvania considering gender identity legislation     
“The Pennsylvania Senate introduced an LGBT non-discrimination bill on April 10, 2007. The bill, SB 761, has now been assigned to the Senate Judiciary Committee for consideration.” (hat tip to Jen Burke at Transcending Gender blog)This same legislation was introduced last year. In my post on the subject then, there's some interesting info: the results of a statewide poll on the possibility of banning such discrimination, the 2003 state regulation on the issue, the several Pennsylvania cities that have passed similar ordinances, the major Pennsylvania employers adopting gender identity policies, and the 2006 federal district court ruling finding that Title VII, the federal Civil Rights Act of 1964, prohibits discrimination against transgender employees. If you click on the label below marked "Pennsylvania," you'll find more about what's been happening in that state.As I've noted before, the current wisdom is that such laws help increase the labor pool needed by large companies. There are currently 49 Fortune 1000 companies in Pennsvlvania that would be affected by this legislation:AmerisourceBergen, Sunoco, Comcast, Rite Aid, Cigna, United States Steel, Aramark, PPG Industries, H.J. Heinz, Air Products & Chem.,Rohm & Haas, PNC Financial Services Group, Crown Holdings, PPL, Toll Brothers, Unisys, Mellon Financial Corp., Lincoln National, Erie Insurance Group, Jones Apparel Group, UGI, Hershey, Wesco International, Ikon Office Solutions, Universal Health Svcs., SunGard Data Systems, Consol Energy, Sovereign Bancorp, Armstrong Holdings, Allegheny Technologies, Allegheny Energy, Harsco, Charming Shoppes, Teleflex, Dick's Sporting Goods, Airgas, American Eagle Outfitters, Kennametal, Vishay Intertechnology, Pep Boys, Weis Markets, FMC, Select Medical, JLG Industries, Dentsply International, Genesis HealthCare, Agere Systems, Penn National Gaming, Ametek.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
20:15
Stanton announces that he will not sue     
On his Larry King Live interview tonight, Steve Stanton announced that he will not sue the City of Largo. He had previously indicated that he would find such a lawsuit "like suing my mother," but there was widespread speculation that he could succeed in such a lawsuit. Appearing with his attorney, Karen Doering, of the National Center for Lesbian Rights, Stanton spoke very candidly and openly about his experience, describing his early knowledge of the condition, his marriage and a planned separation, his love for his son and his son's love for him, the difficulty of the personal reactions from some of the City Commissioners, and the support from unexpected sources. He indicated that he expected to transition in the next 30-60 days, and would look in the future to continue work as a city manager.Ms. Doering provided some useful comments about her organization's experience with and support for transsexuals transitioning in the workplace. She noted that many people have transitioned successfully in the workplace, and that Steve's communication plan would likely have succeeded in allowing him to transition without losing effectiveness as city manager, except for the fact that his plans were disclosed early by a newspaper.I thought the interview provided a very useful, if brief, education for many people who have never seen or heard a transsexual, demonstrating that this is an ordinary human being with the usual feelings and concerns, although extraordinary circumstances.Here's the transcript.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
19:30
New York State gender identity bill moves onward     
GENDA, the New York State bill that would add gender identity to the State's non-discrimination statute, is slowly moving through the legislative process. It passed the Governmental Operations Committee, and now it has to go to the Codes Committee and then the Rules Committee. In 2003 it died in committee, so this doesn't mean much. But I'm proud of my representative, Michael Benedetto (D-Bronx) who voted YES. Good for you, Michael.I discussed the bill and the state of the law in New York previously here. I also just noticed a great post on the Empire State Pride Agenda blog with links to some interesting articles and the text of the bill.I know Empire State Pride Agenda is working on this, but I don't hear much from the wider gay community. I remember when they passed SONDA in 2002, and they told the transgender advocates to lobby for it despite the fact that it left transgender people out, that they would push for another bill to protect gender identity -- and it's 5 years later, and there's a few advocates talking about this but the wide public support needed seems absent. Now we're on to New York State same-sex marriage and DP benefits and everything else. Where's the love, people?(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives

April 28, 2007

22:45
The Unisex Bathroom - A Crazy Place     
While ENDA addresses dressing rooms and shower rooms, rather than bathrooms, I couldn't resist this hilarious video. What prompted me to find it was watching a rerun of Scrubs tonight with my son ("My Philosophy" [2003] ) and finding that it was about having a unisex locker room.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
10:45
ENDA: Can I get dressed now?     
The text of ENDA, the recently proposed federal Employment Non-Discrimination Act, exempts "shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are 'not inconsistent with' the employee's gender identity" What does this mean? Where am I supposed to put on my pasties?As I read it, it exempts shower rooms and dressing rooms without private areas, such as stalls with curtains or doors. In such situations, employers are not subject to liability under ENDA if a transgender employee is excluded therefrom. (The language specifically refers to "this Act," so there might be potential sources of liability in state law.)However, I think most employers with shower or dressing facilities will not fall within this safe harbor because it is common practice today for most shower and dressing rooms to have some stalls for private use, with doors or curtains. If there are such private areas, and being seen fully unclothed is "avoidable," ENDA would apply to prohibit discrimination based on gender identity. Two caveats, however: 1) there is no indication of who would or could be required to use such private areas, and 2) two state courts have ruled that the cultural preference for single-sex facilities trumps statutory language prohibiting gender identity discrimination. I've previously discussed point two about bathrooms and lockers rooms in detail here. For more discussion of these issues generally, click on the label "Bathrooms" at the end of this post.If there is an exempt shower room or dressing room in a workplace, then employees must get a shower or locker room "not inconsistent with" their self-identified gender. In other words, you can't require a male-to-female transsexual, who has a female gender identity, to use a male-only shower room or dressing room. An employer could permit them to use a female-only room, or could give them a single-person shower room or dressing room. Similarly, a female-to-male transsexual, who has a male gender identity, cannot be required to use a female-only shower room or dressing room. Again, an employer could permit them to use a male-only room, or could give them a single-person shower room or dressing room.I can understand how some transgender people would be upset by this language. (Here's a graphic example from transadvocate.com: "You're Just A Tranny And Always Will Be.") If I were a transsexual who had transitioned and had sex reassignment surgery years before my employment, I would not want to be singled out in this way. I think the language could have suited the needs of transgender employees better, but I recognize that the drafters faced some difficult choices. My surmise is this the result of political compromise to avoid the argument that the bill would violate people's right to privacy by requiring them to shower or change with a person of the opposite sex. Interestingly, lawsuits making such claims have failed in the courts so far.There are some interesting comparisons with the regulations in SF, NYC and DC that I have previously discussed. One point of difference is that ENDA does not address bathrooms at all, only shower and locker rooms. The language of the DC regs, however, turns on a concept similar to ENDA's "not inconsistent with" language - except in reverse. ENDA requires access to facilities "not inconsistent with" the employee's gender identity. DC requires access to restrooms and other gender-specific facilities "consistent with" the employee’s gender identity or gender expression. These expressions are somewhat similar, but not quite. By contrast, SF's regs say that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, but when it comes to locker rooms, need only make "reasonable accommodations" and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (As to what's "reasonable" -- lawyers have long known that "reasonable" is a synonym for "what 12 people who couldn't get out of jury duty think is normal.")Let's look at a hypothetical lawsuit somewhere down the road. Cynthia was born male 30 years ago, but has had a female gender identity since the age of 6 and had sex reassignment surgery fifteen years ago. She has moved from San Francisco to Idaho to be with her dying mother (c'mon, got to make this hypothetical interesting), and has started work in a factory in Boise. Her new employer calls a reference and is surprised to find out that Cynthia is a male to female transsexual. The employer converts an old broom closet into a single-person dressing room, and directs Cynthia to use it. She is barred from using the women's multi-person dressing room which all the other women use because it involves unavoidable nudity. Of course, the employer has a good lawyer who advises not to tell the other workers why this is being done because that would be a breach of medical privacy and start another cause of action altogether. Anyway, Cynthia complains that that this is inappropriate and unreasonable because she is not being given access to the facility consistent with her gender identity. She asks the employer to put up a curtained area so that she can use the multi-person dressing room. The employer refuses her request, and argues that the single-use dressing room is "not inconsistent with" her gender because it is not designated for male-only use. Is the employer subject to liability under ENDA? I don't pretend to have an answer.Now, it would be easy to criticize the drafters of ENDA, but that would be laying the blame in the wrong place. The truth is that our society as a whole has not yet agreed that gender identity is different from sex, despite the fact that the generally accepted scientific opinion of health professionals says the two are different. So the problem isn't the language of "consistent with" or "inconsistent with" or "appropriate to." It's the fact that a statute always represents a political compromise in order to get passed, and this one is no exception.More work for the lawyers. And the law professors.P.S. I forgot I wanted to add a couple of questions for future discussion: What if an employer uses a vendor that owns the shower and dressing rooms? Say, an onsite health club, or even an offsite health club for which the employer pays? And what about sending an employee to a customer's location that has a policy that would violate ENDA if it were owned by the employer?(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
09:15
ENDA: shared shower or dressing facilities exemption     
The text of ENDA exempts "shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity" What does this mean? As I read it, it exempts shower rooms and dressing rooms without private areas, such as stalls with curtains or doors. In such situations, employers are not subject to liability under ENDA if a transgender employee is excluded therefrom. (The language specifically refers to "this Act," so there might be potential sources of liability in state law.) However, I think most employers with shower or dressing facilities will not fall within this safe harbor because it is common practice today for most shower and dressing rooms to have some stalls for private use, with doors or curtains. If there are such private areas, and being seen fully unclothed is "avoidable," ENDA would apply to prohibit discrimination based on gender identity. Two caveats, however: 1) there is no indication of who would or could be required to use such private areas, and 2) two state courts have ruled that the cultural preference for single-sex facilities trumps statutory language prohibiting gender identity discrimination. I've previously discussed point two about bathrooms and lockers rooms in detail here. For more discussion of these issues generally, click on the label "Bathrooms" at the end of this post. If there is an exempt shower room or dressing room in a workplace, then employees must get a shower or locker room "not inconsistent with" their self-identified gender. In other words, you can't require a male-to-female transsexual, who has a female gender identity, to use a male-only shower room or dressing room. An employer could permit them to use a female-only room, or could give them a single-person shower room or dressing room. Similarly, a female-to-male transsexual, who has a male gender identity, cannot be required to use a female-only shower room or dressing room. Again, an employer could permit them to use a male-only room, or could give them a single-person shower room or dressing room.I can understand how some transgender people would be upset by this language. (Here's a graphic example from transadvocate.com: "You're Just A Tranny And Always Will Be.") If I were a transsexual who had transitioned and had sex reassignment surgery years before my employment, I would not want to be singled out in this way. I think the language could have suited the needs of transgender employees better, but I recognize that the drafters faced some difficult choices. My surmise is this the result of political compromise to avoid the argument that the bill would violate people's right to privacy by requiring them to shower or change with a person of the opposite sex. Interestingly, lawsuits making such claims have failed in the courts so far.There are some interesting comparisons with the regulations in SF, NYC and DC that I have previously discussed. One point of difference is that ENDA does not address bathrooms at all, only shower and locker rooms. The language of the DC regs, however, turns on a concept similar to ENDA's "not inconsistent with" language - except in reverse. ENDA requires access to facilities "not inconsistent with" the employee's gender identity. DC requires access to restrooms and other gender-specific facilities "consistent with" the employee’s gender identity or gender expression. These expressions are somewhat similar, but not quite. By contrast, SF's regs say that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, but when it comes to locker rooms, need only make "reasonable accommodations" and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (As to what's "reasonable" -- lawyers have long known that "reasonable" is a synonym for "what 12 people who couldn't get out of jury duty think is normal.") Let's look at a hypothetical lawsuit somewhere down the road. Cynthia was born male 30 years ago, but has had a female gender identity since the age of 6 and had sex reassignment surgery fifteen years ago. She has moved from San Francisco to Idaho to be with her dying mother (c'mon, got to make this hypothetical interesting), and has started work in a factory in Boise. Her new employer calls a reference and is surprised to find out that Cynthia is a male to female transsexual. The employer converts an old broom closet into a single-person dressing room, and directs Cynthia to use it. She is barred from using the women's multi-person dressing room which all the other women use because it involves unavoidable nudity. Of course, the employer has a good lawyer who advises not to tell the other workers why this is being done because that would be a breach of medical privacy and start another cause of action altogether. Anyway, Cynthia complains that that this is inappropriate and unreasonable because she is not being given access to the facility consistent with her gender identity. She asks the employer to put up a curtained area so that she can use the multi-person dressing room. The employer refuses her request, and argues that the single-use dressing room is "not inconsistent with" her gender because it is not designated for male-only use. Is the employer subject to liability under ENDA? I don't pretend to have an answer. Now, it would be easy to criticize the drafters of ENDA, but that would be laying the blame in the wrong place. The truth is that our society as a whole has not yet agreed that gender identity is different from sex, despite the fact that the generally accepted scientific opinion of health professionals says the two are different. So the problem isn't the language of "consistent with" or "inconsistent with" or "appropriate to." It's the fact that a statute always represents a political compromise in order to get passed, and this one is no exception. More work for the lawyers. And the law professors. (If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
07:45
600,000 Transgenders "Could" Push Diversity Envelope for Some Employers     
Bill Leonard, senior writer for HR Magazine, published by the Society for Human Resource Management, yesterday posted an article on transgender workplace diversity, entitled "Transgender Issues Could Push Diversity Envelope for Some Employers." Yes, it could. It discusses the Stanton case, noting that Stanton’s case made national headlines and has left many employers pondering how they would handle a similar situation. Yours truly is quoted, in my capacity as Master of the Obvious, as making the following incredibly bland but undeniably true statements:"Transgender issues are some of the most complicated and sensitive challenges that an employer can face," said Jillian T. Weiss, assistant professor of law and society at Ramapo College of New Jersey and principal consultant for Jillian T. Weiss & Associates. "Transgender and gender identification are also among the most misunderstood issues, but employer interest is growing."I suppose I did say something like that. There are much more exciting quotes from Daryl Herrschaft of HRC, Brian McNaught, a corporate diversity consultant specializing in gay and transgender workplace issues, Brad Salavich of IBM, Kathleen Marvel of Chubb, and Mary Ann Horton and Sandy Van Gilder of JP Morgan Chase.Here's the really startling quote of the article. "According to Van Gilder, among J.P. Morgan Chase’s 160,000 employees, 325 are self-identified transgender. She says the percentage is obviously not high and there may be others who have not identified themselves yet, but she is quick to add that each of those employees are valued and obviously feel safe in their work environments." That's 0.2% In a country of 300 million, if the same percentage applied, we'd have 600,000 self-identified transgender people, and probably twice or three times that in the closet. I'm no math professor, but wow.However, I have to go along with Van Gilder's figures. In my dissertation on transgender workplace policies, I found that the percentage of openly transgender employees in my corporate sample of 22 corporate employers worked out to 0.1% (Here, the calculations are on page 95.) Thus, if a corporate employer has 1000 employees, chances are there will be one openly transgender employee, and two or three in the closet. (That is, if the company is a diversity-friendly company where it is safe to come out. Statistics suggests that employers which fire openly transgender employees have 0% openly transgender employees.)Still, that is a very small number, compared to all employees. If you're wondering why employers are concerned about the issue, here's my explanation.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
07:45
Transgender Free Library of Philadelphia Worker Quitting     
Autumn Sandeen blogs on another story of transgender experience on the job market. The story involves another transgender woman who is leaving her job because of ill treatment. While this is, of course, an individual story, it is emblematic of many stories. It's also interesting because Philadelphia has an ordinance prohibiting gender identity discrimination, as do a number of cities in Pennsylvania, some major corporations have gender identity EEO policies, and the state is considering legislation to prohibit discrimination on the basis of gender identity. There is obviously a lot of good-will in Pennsylvania for employment non-discrimination. But it doesn't necessarily penetrate to the ordinary transgender person."After 16 years of employment with the Free Library of Philadelphia, transgender woman Bobbie E. Burnett is ready to close this chapter of her work life. It’s not because she doesn’t enjoy the work, she said; it’s some of her coworkers and managers she can no longer bear."“I want out,” Burnett said this week. “I’m weary and disheartened. I’d like it to be over.”When she began working as a librarian assistant in June 1991, this self-described “people-person” had no reason to expect the Free Library to be a hostile work environment, she said.But that’s what it became shortly after she began her two-year transition to the opposite gender in June 2001, she claimed....Staffers have hurled slurs at her, including “freak,” “monster” and “man in woman’s clothing,” she said....In recent years, Burnett, 51, has been transferred to seven different library branches and has encountered challenges at every one, she said.While gender identity non-discrimination legislation is obviously an important endeavor, it's important to remember the real people who aren't helped by the grand speeches on the floor of Congress.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
07:45
Stanton appearance on Larry King shifted to Friday     
Due to a schedule change at "Larry King Live", NCLR client Steve Stanton will appear on Friday's program.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
07:45
Stanton On Larry King Live Thursday     
The St. Petersburg Times today revealed that Steve Stanton is slated to appear with his attorney on Larry King Live. Stanton will announce whether he'll sue his former employer on Larry King, said his lawyer, Karen Doering, senior counsel for the National Center for Lesbian Rights.Simon Aronoff, deputy director National Center for Transgender Equality, said Stanton will join his organization in Washington, D.C., next month to lobby Congress for the transgender-inclusive Employment Non-Discrimination Act.The article discusses Stanton's legal chances, quoting yours truly on the pro-Stanton side:"'He has an excellent case, but not necessarily an easy one,' said Jillian Weiss, assistant professor of law and society at Ramapo College of New Jersey. She pointed to three cases handled by the Florida Commission on Human Relations that could help Stanton."More at the St. Pete Times, which also quotes the attorney of a trans Largo resident who successfully sued for gender identity discrimination, as well as the ever-quotable Professor Paul Secunda of Workplace Prof Blog, who gently disputed my rose-colored glasses view. I forgive him this trespass (but she who laughs last laughs best).(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives

April 27, 2007

08:00
Mike Penner Coming Out as Transgender     
Lisa Takeuchi Cullen has a great post at Time's "Work in Progress", talking about the story of sportswriter Mike Penner, who is transitioning to Christine in the "hyper-macho world of sports journalism" as she puts it. CNN has more details as well.I think there couldn't have been a better time for Christine Daniels -- as she will be known -- right after Steve Stanton in Florida and the introduction of a transgender-inclusive federal employment non-discrimination bill. It's my guess that there are a few more public figures who are planning to transition, who will see this as a good time to come out.This is an issue that is coming up more and more as we become a more free and open society. I hope that Christine Daniels finds as much success as Mike Penner did. The story is particularly interesting for the way that it demonstrates how professional organizations do this: talk to HR, talk to management, communicate with co-workers, clients and customers, take a break, come back in your new gender, get on with work. Transgender workplace diversity challenges people's notions of "normal", but it doesn't have to be traumatic.Management's response also shows how to do it: "He leaned back in his chair, looked through his office window to scan the newsroom and mused, "Well, no one can ever say we don't have diversity on this staff." We've discussed management response to employee coming out before, but I've never heard that one.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives

April 26, 2007

15:30
Iowa passes gender idenity and sexual orientation employment protections     
With bi-partisan support, the Iowa House of Representatives voted 59-37 to approve a bill outlawing discrimination on the basis of gender identity and sexual orientation. The Iowa Senate affirmed their desire to see this bill become law with a concurrence vote of 34-16.NCTE says that Iowa is now the tenth state to pass a law protecting transgender employees, but the Governor hasn't yet signed. In my opinion, it's not "law" until the Governor signs. IowaPolitics.com seems to be a good place to check for updates. The Oregon bill is also not yet "law." It was passed by both houses of the state legislature last week, but the Governor hasn't yet signed. Basic Rights Oregon has the updates.As a lawyer, I think it's only correct to say as of this writing that there are eight states with statutes protecting transgender, gay and bisexual employees.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
15:30
The text of ENDA     
The text of ENDA can be found here. Here are the sections pertinent to gender identity:Section 3 (a)(6) GENDER IDENTITY- The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.This definition is not one I have seen before, though parts of it are familiar.Section 8(a)(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.This section appears to exempt shower and locker rooms facilities, but not ordinary bathrooms.Section 8(a)(4) DRESS AND GROOMING STANDARDS- Nothing in this Act shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that the employer permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.This section appears to exempt dress codes, except to the extent that employees undergoing gender transition will be subject to the dress code of the opposite gender. There is considerable debate in the transgender community about whether or not there is an "opposite" gender when one does not adhere to the idea of binary gender. I also wonder whether the use of the term "gender" rather than "sex" is best. This section gives the answer for purposes of federal law. More discussion later - I have to go teach. But I couldn't resist setting out the details when I saw that they were available. (If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
15:30
Steve Stanton on Daily Show Video     
Autumn Sandeen's blog has a link to a segment with Steve Stanton on The Daily Show. It included interviews with Stanton, Largo residents, and a disapproving former mayor, as well as snippets from the City Commission hearings.The Daily Show is a very successful Comedy Channel production that discusses current events and politics from a left-leaning point of view and with a heavy emphasis on the comic aspects of life. I showed the segment to my partner, whom I unfortunately forgot to inform about The Daily Show. She had no idea that it was a comedy show, and was appalled when they made absurd suggestions, such as the idea that scientific studies had shown that the portion of the brain responsible for city management is located in the penis, and interviews with Largo residents who said dumb things. At the end, they took a giant scissors ... well you'll see when you view the segment. My partner couldn't understand why I was laughing. I thought the segment was hilarious, demonstrated that Stanton was fired because of his gender identity, showed that some Largo residents, including the former mayor, are bigoted toward transgender people, and generated a great deal of sympathy for Stanton's plight. Yes, it was slightly disrespectful, but the spirit in which it was written appealed to me greatly.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
15:30
Oregon Gender Identity Bill     
Oregon’s legislation SB2, which would prohibit employment discrimination based on gender identity and sexual orientation, had hearings yesterday before the Oregon House Elections, Ethics and Rules Committee. Here’s the audio online.The Eugene Register-Guard said that the hearings drew hundreds of people to the Capitol. Most of the crowd spilled out into five overflow rooms or the Capitol's galleria. The Register-Guard noted that religious conservatives testifying against the bill zeroed in on the concern that anti-discrimination legislation would inadequately safeguard religious organizations' rights to refuse jobs to people because of their sexual orientation.From Autumn Sandeen at Pam's House Blend, March 16:"And, over in Oregon, a bill to add sexual orientation and gender identity to the books for employment, housing, and public accommodations passed out of committee 3-1, and is now heading toward that State Senate's floor. In 2005, a similar bill -- coupled with a provision for civil unions -- passed through the state senate, but died in a house committee without ever getting a hearing. With both Oregon houses now controlled by Democrats, chances are considered significant for the bill to reach actually reach the Governor's desk." The bill is now being reviewed by a House committee, which will decide whether it should go to a vote of the full House. Governor Kulongoski has indicated he will sign the bill if the House passes it.The bill includes the standard anti-discrimination provisions of most similar bills. From The Oregonian:“The bill would prohibit discrimination based on sexual orientation in housing, workplace and public places. It would provide the authority to seek, through civil court action, actual and punitive damages and attorneys' fees for unlawful discrimination. It would require state agencies to eliminate discrimination against persons based on sexual orientation.Here’s the text of SB2.The bill is supported by local businesses. From The Oregonian: Eleven Oregon business executives urged legislators in a letter to support the bill. Among them were Julia Brim-Edwards, public affairs director for Nike Inc.; Malia H. Wasson, president of U.S. Bank; Peter Bragdon, vice president and general counsel for Columbia Sportswear; and Peggy Fowler, president and CEO of PGE.Interesting factoids: 1) Oregon state regulations currently say that an “employer may not refuse to hire or promote or bar or discharge from employment or discriminate in compensation, terms, conditions or privileges of employment because a person is transsexual when the person is otherwise qualified.” OR. ADMIN. R. 839-006-0206. [See comments for text of the reg]2) SB2 contains a specific provision explicitly exempting religious groups.3) From blogger Chewin On Glass: Oregon has two openly gay justices on the state supreme court.Oregon cities and counties with gender identity protections:Beaverton, Bend, Benton County, Corvallis, Hillsboro, Lake Oswego, Lincoln City, Multnomah County, Portland, and Salem, There is one company in Oregon with a policy that includes gender identity: NikeThere are 3 other Fortune 1000 companies in Oregon would be affected: Precision Castparts, Lithia Motors, and StanCorp Financial.Arguments Against the BillThe opposition to the bill is organized and fierce. Interestingly, the main focus of controversy is sexual orientation, with much less concern about gender identity. This is interesting in light of the arguments within the GLBT community about the federal ENDA bill. Some gay advocates, such as Chris Crain, oppose inclusion of gender identity in the federal bill because of fears that gender identity is much more controversial than sexual orientation. As it appears, however, there is plenty of controversy about sexual orientation, and not much about gender identity as a separate category. because, in his view, sexual orientation and gender identity are "behavior-based activities" that should not be elevated to the same status as race and religion by the granting of civil rights. This argument is just silly. Religion is obviously a "behavior-based activity," freely chosen by individuals based on belief. It is not something we are born into, like race or national origin. There is no logical basis for an argument that being gay or transgender is a "lifestyle choice" but religion is not. There is also some evidence that sexual orientation and gender identity are influenced by biology, but I have no opinion one way or the other on the matter. My identity does not need such justifications. Autumn Sandeen has an interesting post on this issue, as well.Richardson specifically notes that he believes in constitutional protection against discrimination and that individuals should have the right to live their own lives with a minimum of interference, but says he is unwilling to use the force of governmental power to protect sexual orientation and gender identity from the beliefs of religious Oregonians.This argument has some flaws. First, it has long been recognized that using state court doctrines to enforce discriminatory contracts is, in fact, state action, which violates the US Constitution’s Fourteenth Amendment requiring equal protection of the laws. The same would seem to be true of the employment at will doctrine. The idea that this governmental force is used to legitimize unequal protection based on religious beliefs raises First Amendment questions.Another problem with Representative Richardson’s argument is that the bill contains an exemption for religious organizations, so that churches opposed to GLBT identities will not be forced to abandon their religious beliefs in the operation of their churches.From The Oregonian: “The bill allows religious groups to discriminate against hiring or housing gays or permitting them to use their facilities. Still, senators opposing the bill objected to a provision that says religious groups can discriminate only for activities connected to the "primary purpose of the church or institution" and not for commercial activities, such as running an apartment house or restaurant. The courts would be deciding a church's primary purpose, they said....Proponents said the bill's religious exemption was carefully crafted, supported by many religious groups, including Ecumenical Ministries of Oregon, a statewide association of 16 denominations. What's more, they said, it was unnecessary, given religious protections already provided by the state and federal constitutions. They also argued that the bill does not give special or minority status to gays and lesbians, nor does it make curriculum requirements of schools.From Gay Rights Watch: Senate Bill 2, DOES NOT as The Oregon Family Council claims, creates new language in statute "leaving it up to a court to decide what is or is not 'closely connected with the primary purposes of the church.'" This exact language already exists in Oregon's current anti-discrimination statute (ORS 659A.006, Section 2, Sub C).Gay Opinion Blog has a well-written column by a gay pastor on the other side of the religious issue. Reverend Wes Mullins, assistant pastor at the Metropolitan Community Church of Portland, argues that assertions that religious institutions will not be properly protected is simply a smoke-screen designed to obscure what is truly motivating opponents' actions -- fear of gay, lesbian, bisexual, and transgender (GLBT) persons.A truly startling argument is the one made by Sen. Bruce Starr, R-Hillsboro, who questioned whether gays and lesbians encounter discrimination in work and housing. As a group, they earn more, are better educated and live in better homes on average, he said. Given recent national publicity to the events in Largo, Florida, this position is surprising. However, it is interesting how many times I have seen this issue raised. When I was an educated middle-class white man, I also wondered “what discrimination???” when people of color, women and others raised the issue. From Oregon Public Broadcasting: Asling Coughlin, executive director of Basic Rights Oregon: "You know, we've heard testimony from people who have been fired from their jobs and denied accomadation based on their sexual orientation. And unfortunately in 2007 it's still prevalent. And we like to think that one case of discrimination is one too many and unfortunately there are definitely more than one case."Senator Starr’s argument is undercut by the prejudice displayed in the fierce opposition to the bill. From The Portland Mercury, regarding the initial hearings: [T]hose who were opposing the bill—many at the behest of the conservative Oregon Family Council (OFC)—unwittingly did a better job of making the case for the anti-discrimination law, by trotting out thinly veiled insults against gays and citing "evidence" that homosexuality is immoral, "harmful," and "destructive." Others made outlandish and baseless claims that gays have a life expectancy of around 40 years, and that gays are "17 times more likely" to be sexual predators....Other opponents of the bill—like former State Senator Charles Starr—claimed the bill might lead to reverse discrimination, by oppressing anti-gay Christians."To say that [gays'] sex acts are unhealthy or against nature would bring forth outright suppression of biblical truths," Starr said. Another man testifying later in the afternoon claimed the law would "criminalize the Christian worldview that simply wants to state that it's okay to believe that a certain lifestyle choice is immoral."Regarding the “special rights” argument that is so perennially popular in these debates: The bill’s opponents don’t seem to realize that the creation of “protected classes” comes from the need to overcome the “employment at will” doctrine of American law, which has always been openly acknowledged by all as a discriminatory device, and not from any desire to create “special rights.” From Oregon Public Broadcasting: Roseburg Republican Jeff Kruse was among those voting against Senate Bill 2. He said he doesn't favor discrimination. But he said he believed the bill is a foothold for what he called mandating certain types of education in schools. Jeff Kruse: "Mr. President. If I had my way, I would take all the discrimination language we have in statute, eliminate it all, as say Thou Shalt Not Discriminate and be done with it, because that's truly how I think it should be." Representative Kruse’s position clearly comes from a misunderstanding of the law.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives

April 25, 2007

11:45
Oregon House passes gender identity bill     
The Oregon gender identity bill, SB2, that I discussed last week is moving through the legislative process smoothly. The Oregonian reports that the House voted 35-25 in favor of Senate Bill 2. Four Republicans -- Vicki Berger of Salem, Chuck Burley of Bend, Bob Jenson of Pendleton and John Dallum of The Dalles -- joined Democrats in voting for the bill. The bill now moves to the Democrat-controlled Senate, where it has solid support. The Senate already has approved the anti-discrimination bill and is expected to support the version amended by the House. It could come before the Senate for a vote in the next week or two, and Gov. Ted Kulongoski has said he supports it. This would raise to 9 the number of states with statutes prohibiting employment discrimination against transgender employees. There are 10 other state bills pending. You can find the full count in my updated post of April 8.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
11:45
How many states have law covering gender identity?     
Last updated: 4/13/07 8:13 pmI have seen various figures for states prohibiting gender identity discrimination quoted in various places. Some refer to 17, which is the number of states including sexual orientation, ignoring the fact that 9 of those states do not include gender identity. Others refer to 8 states with laws against gender identity discrimination, which is only partially correct, as there are 8 states with statutes, and even more with court rulings and regulations. Some say 9, because they are including Hawaii, which has a statute prohibiting gender identity discrimination in housing, but not in employment, though it does prohibit gender identity employment discrimination by regulation (or administative ruling, because the two seem to be the same in Hawaii, as far as I can tell.) Some say 10, counting DC as a state.So let's count them, shall we?8 states have statutes prohibiting gender identity discrimination in employment: CA, IL, ME, MN, NJ, NM, RI, WA13 states have other law, like court rulings or regulations, that prohibits gender identity discrimination in employment: CO, CT, FL, HI, KY, MA, MI, NH, NY, OH, OR, TN, VT2 states have policies that prohibit gender identity discrimination in public employment: IN, PA (KY used to have one, but revoked it, though federal law on the subject still applies)DC has a statute prohibiting gender identity discrimination in employment.In terms of pending legislation to create new state statutes, I think we've got 11 currently pending: Colorado, Connecticut, Indiana, Iowa, Massachusetts (hat tip to Ethan St. Pierre) Michigan, Montana, New York, Oregon, Pennsylvania and VermontThese carefully calculated numbers may change tomorrow, so be careful to recheck, journalists, when you quote these numbers. A good place to do that is the HRC website, where they list all these things (but a little out of date, so be careful to recheck their calculations too!) I'll try to remember to post updates here, but judging from how good I am with New Year's resolutions, I'm making no promises.A note for those fuzzy on US government: A statute is a written law passed by a legislative body, such as Congress, which can apply to all persons in the jurisdiction. By contrast, a court ruling or order is an opinion written by a judge, who is part of the judicial branch, in the context of a suit, applicable only to the parties to the suit, though potentially applicable to all persons in the court's jurisdiction in a later lawsuit. An administrative regulation is a written policy enacted by the executive branch of government, such as the President or one of his or her agencies, such as the FBI, under a specific grant of authority in a statute. Executive orders are a form of administrative regulation. There also administrative tribunals, which make rulings similar to a court, but which are part of the executive branch of government. These rulings can be overturned by the courts.(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
10:15
More on ENDA     
ENDA is now known as H.R.2015. The text is not yet out, but here’s where to find it when it is out. There are 67 cosponsors.The bill has been referred to various House committees: Education and Labor, House Administration, Oversight and Government Reform, and Judiciary, for consideration of provisions that fall within the jurisdiction of each. I imagine they will issue reports in a couple of months.HRC’s press release contains interesting statements from the 4 co-sponsors. And here’s the photos from the signing.Reverend Lou Sheldon of the Traditional Values coalition said in a newspaper interview that the bill is not needed because there is no discrimination. The National Employment Lawyers Association, however, in their press release, cite some interesting examples of discrimination. Lambda Legal has referenced 1000 calls received regarding discrimination in 2006. PFLAG National has created a snappy postcard campaign: (If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com - See the "Archives" menu on the right for older posts.)
Categories: Transperspectives
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