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June 30, 2009

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Hate to say it, but do you actually think the current court will leave any possible remedy feasible to prove in court?

Ledbedder, Ricci, that recent age discrimination, and all the rest seem to make enforcement of anti-discrimination laws harder.

There is a value in making normative laws, to set forth what the expected manner to behave - but I don't know how much.

I think that this is, on balance, a good bill, but we should keep in mind that this is not a bill prohibiting "discrimination" per se; it's nominally a bill prohibiting activities that have a disparate impact (see Sec. 4(g): "Disparate Impact- Only disparate treatment claims may be brought under this Act.") Whether that limitation will be honored more in the breach, however, is an open question.

It's also worth noting that this bill has some vague bits, including the prohibition against retaliation against folks who have, e.g., a religious objection to transgendered folks (which is structured to be effectively toothless) and the discussion of who has access to certain shared facilities (e.g., rest rooms and toilets are conspicuous by their absence - that is, it is a prohibited act to bar a transman from using the men's restroom or a transwoman from using the women's restroom). The question of when protections apply to transmen and transwoment is also not fully fleshed out (e.g., protections apply "upon notification to the employer that the employee has undergone or is undergoing gender transition" .... how broad should the phrase "is undergoing" be construed? If I (a biological male) give notice that my gender identify is female and indicate that I am beginning the process of transitioning, am I undergoing transition from the moment of notice or do I have to take some steps to transition first? If the latter, how many steps?).

But these are quibbles, and can and should be worked out in committee.

MobiusKlein - Why do you think that Ricci makes the enforcement of anti-discrimination laws harder?

Hate to say it, but do you actually think the current court will leave any possible remedy feasible to prove in court?

Certainly. It's only "judicial activists" who would ignore plain legislative intent, strike down laws based on expansive ahistorical readings of the Constitution, overrule existing standards without remanding, etc, etc. No worries.

von: how broad should the phrase "is undergoing" be construed? If I (a biological male) give notice that my gender identify is female and indicate that I am beginning the process of transitioning, am I undergoing transition from the moment of notice or do I have to take some steps to transition first? If the latter, how many steps?).

A normal first step for a trangendered person if they are able to transition while in employment (this lady, who describes coming out at work on a Youtube recording, transitioned when changing jobs) is to notify Human Resources, or the Personnel department, that from now on they would like their pay checks to be made out to Susan instead of Sam, or to Robert instead of Rachel, because they are in the process of transitioning.

The way this is normally "regulated", in effect, is that you, as Von who wants from now on to be Lorraine, would demonstrate to your employers that you are now living as a woman: you'd likely make some change to your given name (though I suppose Von is a possible girl's name, most trans people know what their real name is and it doesn't necessarily have any connection with their legal given name) and you would be able to show that you had applied for a drivers' licence under your new name and your bank now knew you as Lorraine X instead of Von X. There are a stack of other changes that you would start making - most likely, you would have begun negotiating with your health insurance company about whether they would let you have hormone shots on prescription, and you'd be finding out the costs of electrolysis and surgery - but the basics that matter at work: you would want to ask your employers (and your co-workers) to refer to you as "she" and "her", and to use your chosen name instead of "Von", and you would want your name to be correctly listed on the record of employees.

You do get some people - feminists as well as foul-minded straight guys - who talk about the provision for trans women getting access to the ladies toilets at work as if this was just a means for Peeking Toms to be able to spy on women in the toilet: as if it would be easy for them as straight men to "just" notify their workplace that from now on they wanted to be treated and regarded as women. This is - to put it mildly - arrant nonsense.

Anyone who is using their access to the toilets to spy or pry into the privacy of other users deserves to lose it. Regardless of gender. To borrow a phrase from a UK campaign: Let everyone pee in peace.

including the prohibition against retaliation against folks who have, e.g., a religious objection to transgendered folks (which is structured to be effectively toothless)

Sounds good - so, theoretically it's possible for bigots who make use of religion as an excuse for homophobic or transphobic behavior to discriminate without retaliation, but in practice the prohibitions against preventing religious bigotry are toothless - it's a fully-toothed bill against religious bigotry, is what you're trying to say?

(The problem with compound sentences...)

This is - to put it mildly - arrant nonsense.

To be clear, I completely agree that restrooms should be excluded from this definition. But I suspect that you and I have a minority view on that point.

Also, I appreciate the "best practices" process that you've described, but my experiences suggest that best practices are not universal. And this particular bill regulates fairly small companies (down to 15 or 20 employees, IIRC), which almost certainly lack an HR department, or even a dedicated HR person.

Von, my comment about Ricci was not informed by the law side, but more by the politics. Which sort of person benefits.

von: To be clear, I completely agree that restrooms should be excluded from this definition.

You're not being clear at all, I'm afraid.

Also, I appreciate the "best practices" process that you've described, but my experiences suggest that best practices are not universal.

Oh, sure. In small companies, a person who is transitioning is primarily dependent on the goodwill of their co-workers and the management: management's fear of co-worker rebellion can sometimes be set aside by appeal to the law, where the law exists.

For comparison, it has been unlawful to discriminate against trans employees in the UK since 1999. Yet trans people are still more likely to be living in poverty/suffering long-term unemployment than cisgendered people.

In effect, a legislative framework banning discrimination against trans people is really a basic platform from which true equality can be grown: it's just the start, but it is a start. If you can't lawfully fire someone or harass them out of a job for being trans, this won't stop some employers for trying it unlawfully and they will still often get away with it, because their targets are especially vulnerable to the threat of being outed. But it will mean that the larger employers are less likely to try it on, which itself creates an atmosphere of normality which makes people less likely to react the news that their co-worker is transitioning with knee-jerk hostility.

What's the source of data that these members are supposedly "undecided"? I work for one of these members and know for a fact that he supports the bill. Perhaps "publicly uncommitted" would be a better title. It's a very busy approps season after all, and this bill was just introduced.

You're not being clear at all, I'm afraid.

Well, I'll clarify again, then: In my view, transgendered folks in transition should be permitted to use the restroom of the gender with which they identify. If a biological male identifies as a female and is in the process of transitioning to a female identity, she should use the women's restroom. This draft of the bill allows for that, which I think is right, but I expect there will be considerable disagreement.

hamilton: it's from the Inclusive ENDA campaign. If your boss supports ENDA, let them know, and thank him for me. ;)

Thanks hilzoy, I appreciate the info.

This should not be a hard bill to pass. The idea that people should not be able to lose their jobs because they are gay or transgender should not be controversial. For some reason that I do not understand, however, it seems to be.

Hilzoy, I've very much appreciated your posts on ENDA, on discrimination against transgender people, etc. But this phrasing grates on me, because it seems insincere. I don't find it believable that you actually do not know or understand the reason that this bill is controversial.

Bigotry, whether mild or severe, is the reason.

In a few cases, the answer is personal bigotry on the part of the member of Congress (Bart Stupak, for one -- he's a member of the Family who lives in that right-wing pseudo-religious organization's house on C Street). Much more often it's a political unwillingness to take on the bigotry of important constituencies.

I'm encouraged by Hamilton's post to consider this collection of representatives as 'not yet publicly committed' to the bill. But with few exceptions, they are from socially conservative districts, where open bigotry against lesbians, gay men, bisexuals, and transgendered people is still completely acceptable.

Baptist and fundamentalist Protestant ministers preach this bigotry. Please don't pretend you don't know of its existence.

von: Well, I'll clarify again, then

Thank you for doing so. (Crystal clear this time: would probably have been so the first time... to another lawyer. ;-)

All, please note the correct Bill is H.R.3017

Thank you for doing so. (Crystal clear this time: would probably have been so the first time... to another lawyer. ;-)

I wouldn't bet on that! I can be confusing and ambiguous with the best of 'em.

I still think you should legally be able to fire freaks. And if you cut off your own Mr. Wiggles, you're a freak.

Hey Hilzoy,
Thanks for speaking up about this. It's great to hear from an ally :-)
Bethany

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