Discriminating Against Transgendered People

by hilzoy

From the SF Chronicle:

"Leading gay rights organizations, with the pointed exception of the Human Rights Campaign, withdrew their support Monday from a landmark gay civil rights bill after House Speaker Nancy Pelosi of San Francisco and Rep. Barney Frank, D-Mass., pulled transgender people from the legislation that would protect gays and lesbians from workplace discrimination.

The intense backlash by the gay community surprised House Democratic leaders, forcing them to postpone what had been intended as a big House vote this week to include gays and lesbians in the nation's job discrimination laws for the first time in American history.

The debate playing out between gay rights activists and two of their biggest supporters in Congress raises a classic political question: Are activists better off compromising and accepting progress or continuing to fight for everything they want?

Gay rights groups have been waiting for a decade for the bill to pass, and many say a few more months to try to build support for including gender identity would be worth the wait. They say transgender people will have little chance of winning protection from discrimination if they aren't included in this bill.

Pelosi and Frank, however, fear the inclusion of gender identity will kill the overall bill - again denying gays and lesbians protection against job discrimination.

Pelosi, D-San Francisco, issued conflicting statements Monday in reaction to the turmoil. The first declared her personal support for including transgender people in the Employment Non-Discrimination Act but asserted she would stick by her decision to drop them from the bill to give it a greater chance of passage.

About three hours later, the speaker issued a new statement saying, "After discussions with congressional leaders and organizations supporting passage" of the bill, committee and floor votes on the bill had been postponed to "allow proponents of the legislation to continue their discussions with members in the interest of passing the broadest possible bill.""

If I were a Congressperson, I would be genuinely torn about what to do. On the one hand, according to Barney Frank, whom I trust, whip counts show that the bill will fail if it includes a ban on employment discrimination against transgendered people, but will pass otherwise. If that's right, then there's a serious case to be made for banning discrimination against gay men and lesbians now, rather than leaving the entire LGBT community exposed to legal workplace discrimination. On the other hand, I loathe the idea of not banning discrimination against transgendered people, especially if that would mean that no such ban would be passed for the foreseeable future.

Luckily, however, I am a blogger and a citizen, not a Congressperson. And that means that my duty, as I see it, is clear. First, I should write my Representative, urging (in the case of my Representative) him to support the version of the Employment Non-Discrimination Act that secures the rights of transgendered people. And second, I should use my blog to argue my case. That argument, which is aimed at those of our readers who don't know much about this topic, is below the fold. People who do know about it should feel free to add further information in comments. (Note: for the sake of simplicity, I'm going to stick to people who think that their biological gender is flatly wrong, and leave aside people with more muted gender issues.)

Here's an excerpt from She's Not There, a wonderful memoir by a thoughtful and deeply sane writer, which is worth reading even if you don't want to understand more about this topic:

"I was born in 1958, on June 22nd, the second day of summer. It was also the birthday of Kris Kristofferson and Meryl Streep, both of whom I later resembled, although not at the same time. One day when I was about three, I was sitting in a pool of sunlight cast onto the wooden floor beneath my mother’s ironing board. She was watching Art Linkletter’s House Party on TV. I saw her ironing my father’s white shirt—a sprinkle of water from her blue plastic bottle, a short spurt of steam as it sizzled beneath the iron. “Some day you’ll wear shirts like this,” said Mom.

I just listened to her strange words, as if they were a language other than English. I didn’t understand what she was getting at. She never wore shirts like that. Why would I ever be wearing shirts like my father's?

Since then, the awareness that I was in the wrong body, living the wrong life, was never out of my conscious mind—never, although my understanding of what it meant to be a boy, or a girl, was something that changed over time. Still, this conviction was present during my piano lesson with Mr. Hockenberry and it was there when my father and I shot off model rockets and it was there years later when I took the SAT and it was there in the middle of the night when I woke in my dormitory at Wesleyan. And at every moment as I lived my life I countered this awareness with an exasperated companion-thought, namely, Don’t be an idiot. You’re NOT a girl. Get over it.

But I never got over it. (...)

After I grew up and became female, people would often ask me—how did you know, when you were a child? How is it possible that you could believe, with such heartbroken conviction, something which, on the surface of it, seems so stupid? This question always baffled me, as I could hardly imagine what it was like not to know what your gender was. It seemed obvious to me that this was something you understood intuitively, not on the basis of what was between your legs, but because of what you felt in your heart. Remember when you woke up this morning--I’d say to my female friends—and you knew you were female? That’s how I felt. That’s how I knew.

Of course knowing with such absolute certainty something that appeared to be both absurd and untrue made me, as we said in Pennsylvania, kind of mental. It was an absurdity I carried everywhere, a crushing burden, which was, simultaneously, invisible. Trying to make the best of things, trying to snap out of it, didn’t help either. As time went on, that burden only grew heavier, and heavier, and heavier."

Interestingly, there seems to be a neurological basis for this (see also here and here):

"Zhou et al found that the biological structure in the brains of male to female transsexual people had a totally female pattern that was not attributable to sex hormone therapy. Kruijver et al later found that regardless of sexual orientation, men had almost twice as many somatostatin neurones as women. These inhibit thyroid stimulating hormone and growth hormones in the hypothalamus. The number of neurones in male to female transsexual people was similar to that in women, whereas the number of neurones in female to male transsexual people was similar to that in men. This seems to support a neurobiological basis for gender identity disorder."

Whatever the reason, transgendered people feel that their biological gender does not match the way they identify themselves. Jenny Boylan (nee James), the author of She's Not There, seems to have believed that she was really a girl forever. But I imagine it's not always that simple: a boy in Jenny's position might not have any idea at all how to formulate the thought that he was really a girl, since, after all, boys are the ones with penises, and he has one, and therefore, obviously, he must be a boy. What would you think, under those circumstances? I mean, isn't it obvious that you're a boy? So what is this weird thought doing lodged in your head? What's wrong with you?

Now think about what would happen if you tried to talk about this with your friends or your parents.

Not being transgendered myself, I don't think I can begin to imagine what this is like, but I imagine it must be beyond awful.

Jenny Boylan tried to make it go away. Maybe she would outgrow it, or maybe once she found the absolutely right woman and fell truly in love, she would stop imagining that she was a girl. I imagine that this is a common reaction, except in those rare corners of the world in which transgendered people are out and familiar. In Jenny's case, she did fall in love, got married, and for a short time did stop thinking that she was a girl. She had two children. She wrote several novels, and taught at Colby College. But except for that brief time around her marriage, she spent her life thinking, with increasing urgency, that she was really a woman.

Try to imagine that: getting married to a woman you truly love, truly believing that surely this will make those thoughts go away, and then slowly realizing that they won't. And try to imagine keeping something that cuts as deep as your gender a secret from everyone you know and everyone you love.

Eventually, Jenny Boylan decided that she ought to consider gender reassignment. Gender reassignment sounds like a pretty daunting prospect in itself: some pretty serious surgery, hormone therapy, electrolysis, voice training, etc., etc., etc. Moreover, in order to get gender reassignment surgery, you normally have to meet the Harry Benjamin Standards of Care, which require several letters from psychiatrists or psychologists, hormone therapy, and a year of living continuously as a member of your target gender. But in addition to all of this, there's the whole business of coming out. Imagine telling your parents, your friends, your co-workers that you have a condition that many of them might regard as either ludicrous or insane. That's pretty terrifying. Now imagine that, like Jenny Boylan, you're married, and have children. How on earth will you tell them? Will your marriage survive? What on earth will your kids think? Will they be stigmatized or traumatized or some even worse kind of ized? Or will they just flee in horror?

Personally, I can't imagine the kind of courage it must take to do this.

Which is why I think: honestly, the least we, as a society, can do is to try to make sure that in addition to all the things I've mentioned, transgendered people don't have to worry about losing their jobs. As things stand, they do. For instance (pdf):

"Kathleen was a research assistant doing chemical and biological analysis in an orthopedic surgeon's lab at a state university in Iowa. She had been working in the university for three years when she told her supervisor and her co-workers that she was transgender and would be transitioning from male to female. After this conversation, the surgeon stopped coming into the lab, and within weeks Kathleen was told she was being fired. The department administrator told Kathleen that they were firing her because they thought she could no longer give sufficient effort to the department because of her "condition.""

And:

"Starting a new life and searching for a new career isn't easy, but Diane Schroer (bio), a highly-decorated veteran, is no stranger to a challenge. Schroer was an Airborne Ranger qualified Special Forces officer who completed over 450 parachute jumps, received numerous decorations including the Defense Superior Service Medal, and was hand-picked to head up a classified national security operation. She began taking steps to transition from male to female shortly after retiring as a Colonel after 25 years of distinguished service in the Army.

When she interviewed for a job as a terrorism research analyst at the Library of Congress, she thought she'd found the perfect fit, given her background and 16,000-volume home library collection on military history, the art of war, international relations, and political philosophy. Schroer accepted the position, but when she told her future supervisor that she was in the process of gender transition, they rescinded the job offer. The ACLU is now representing her in a Title VII sex discrimination lawsuit against the Library of Congress."

That's all perfectly legal. Moreover:

"Transsexuals are not a separate protected group of workers under a law that bans employment discrimination based on a worker's sex, a federal appeals court has ruled.

The 10th U.S. Circuit Court of Appeals upheld a federal judge's ruling in favor of Utah Transit Authority, which fired bus driver Krystal Etsitty because she planned to use the women's restroom despite having male genitalia.

[Note from hilzoy: imagine going into a men's bathroom dressed convincingly as a woman. Much better to use the women's bathroom, which at least has stalls with doors that close.]

The Denver-based appeals court agreed with the judge that Title VII, a federal discrimination act, does not protect Etsitty solely on the basis of her transsexuality. In ruling for the first time on the issue, the court said it is reluctant to expand the traditional definition of "sex" in Title VII beyond the two starkly defined categories of male and female.

"Rather, like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female," Judge Michael Murphy wrote in the 10th Circuit opinion, handed down Thursday. (...)

The 10th Circuit opinion, in upholding that decision, said it is aware of the difficulties transsexuals can face in the workplace.

"The conclusion that transsexuals are not protected under Title VII as transsexuals should not be read to allow employers to deny transsexual employees the legal protection other employees enjoy merely by labeling them as transsexuals," the ruling said. "If transsexuals are to receive legal protection apart from their status as male or female, however, such protection must come from Congress.""

Ah, yes: Congress. If you think that people should not be fired because they seek gender reassignment surgery, or have some other sort of gender misalignment -- if the very idea of choosing one of the toughest parts of a person's already tough life to take away his or her livelihood for no good reason makes you as mad as it makes me -- then now would be a good time to write your Representative and ask him or her to support the extension of the Employment Non-Discrimination Act to transgendered people. And if you're still on the fence, I recommend reading She's Not There to get a clearer picture of what's involved.

The only reason anyone is so much as thinking about stripping protection for transgendered people from this bill is because they are a lot less visible than gay men and lesbians. If we want to block not just this particular injustice, but all of them, then we need to change that. And I can't think of any good reason why those of us who are not transgendered should wait for transgendered people to bring their situation to our attention. Between paying for surgery, telling the people they know, dealing with hormones and therapy and electrolysis and so on, and navigating what I'm sure are the absolute delights of a workplace transition, I imagine they have enough on their plates already.

Comments

[Ugh]

It's not a matter of making new protected classes--it's a matter of according GLBTs the same rights as everyone else.

I'm fairly sure it's perfectly permissible now to fire someone because they're heterosexual, it's just that it never happens (or happens only rarely).

[Gary Farber]

The fact that "mensch," a Yiddish word, isn't traditionally genderless in no way means that Edward or any other English-speaker can't use it genderlessly as English slang, of course.

[cleek]

that can't be the real Gary Farber at 11:08.

[liberal japonicus]

menschlein? (though wikipedia says that use of fraulein is not disapproved of except for very young women)

[liberal japonicus]

sorry, IS disapproved

[Gary Farber]

Quite right; it was 9:08 a.m.

For some reason, the time-stamp isn't set on Rocky Mountain Time, which has been the time of my life since December, 2001.

[G'Kar]

Ugh raises an interesting point. In 'at-will' states, do these statues have any effect? If an employer can terminate your employment at any time anyhow, it strikes me as becoming rather difficult to demonstrate a particular animus being the root cause. But I know next to nothing about employment law, and what I have learned in this thread is terribly depressing. So I'm not sure, in retrospect, if I even want to ask that question.

[Dantheman]

Gary,

"The fact that "mensch," a Yiddish word, isn't traditionally genderless in no way means that Edward or any other English-speaker can't use it genderlessly as English slang, of course."

Undoubtedly slang is more fluid than proper English in taking on new implications. On the other hand, one certainly can be amused by the implications of calling hilzoy a mensch in light of the traditional gender-specific meaning, especially where the topic at hand deals with transgender issues.

[Dantheman]

G'Kar,

"In 'at-will' states, do these statues have any effect? If an employer can terminate your employment at any time anyhow, it strikes me as becoming rather difficult to demonstrate a particular animus being the root cause."

I am not an employment lawyer either, but my understanding from law school is that at-will employment means one can be fired for a good reason, or for no reason at all, but not an illegal reason.

[xanax]

Slightly OT but somewhat relevant (and xanax unabashedly seeking some free legal direction): Anyone among the ObWi geniuses and wizards of the Hive-Mind know whether or not the marriage entitlements re citizenship and immigration laws extend to couples in same-sex marriages? And if so, are those privileges federal or are they specific to the state in which same-sex marriages are legal (assuming there is/are still one/some)?

A key employee is in a same sex relationship with a person from Columbia who is in the country illegally and is, in fact, facing deportation. They have been together 5 years and are raising his adopted son together. If they were to marry (in a state where it's legal) would they be afforded the same immigration protections a hetero couple would under similar circumstances?

Anyone?

(Thanks!)

[Edward_]

On the other hand, one certainly can be amused by the implications of calling hilzoy a mensch in light of the traditional gender-specific meaning, especially where the topic at hand deals with transgender issues.

Again, for the record, I use "mensch" interchangably, as do I a wide range of insults generally reserved for either female or male targets. In this context, I see where that was sloppy of me, but it truly hadn't occured to me that it would take on the humorous angle.

Either that or I'm subconsciously funnier than I think I am.

[Dantheman]

Edward_,

I vote for the subconsciously funnier explanation. You are certainly funny when you intend to be.

[Ugh]

xanax - I don't know for sure but I seriously doubt getting married is going to help. The feds don't recognize same-sex marriages for things like filing a joint tax return, or social security benefits, so I highly doubt the immigration laws or different.

[Ugh]

xanax - also, considering they're deporting long-time spouses of military members whare are about to be deployed overseas (in this case for the third time), I doubt a same-sex relationship is going to matter one bit. heck, they might even add it to why the person needs to be deported.

[KCinDC]

Edward_, I don't think "mensch" fits into the same category as "Miss Thing" or "drama queen" or whatever else you're thinking of. If there is anything gender-specific about it, it's not in the word itself (which Yiddish took from the German word for "human being"), but in the people speakers have traditionally applied it to. For what it's worth, this dictionary defines mentsh as "honorable, decent person", and I haven't found any gender-specific definitions elsewhere (but I haven't conducted an exhaustive search).

[Gary Farber]

"On the other hand, one certainly can be amused by the implications of calling hilzoy a mensch in light of the traditional gender-specific meaning, especially where the topic at hand deals with transgender issues."

Sointenl'y.

"Ugh raises an interesting point. In 'at-will' states, do these statues have any effect? If an employer can terminate your employment at any time anyhow, it strikes me as becoming rather difficult to demonstrate a particular animus being the root cause."

IANAL, nor remotely expert on the topic, but my understanding is that employment non-discrimination statutes have all the power of any other statute. In practice, proving discrimination tends to require a lot of clear evidence, such as memos, supporting testimony, and so on: the more explicit the better.

But it's not overwhelming different from meeting any burden of proof. In other words, if the perpetrator is subtle or clever, or the victim isn't extremely astute, determined, and careful, the perp is apt to get away with it.

Most crimes, or civil offenses, are gotten away with, after all, and the fact that we falsely accuse and convict and imprison many folks (and other inmates then engage in torturing them for us) doesn't compensate.

Generally speaking, in our society, if one wants the protection of the law, beyond the barest and shakiest minimum, one needs to be able to pay a good lawyer to try to obtain it for you. It's unfortunately usually that simple.

[CharleyCarp]

Dantheman is right about the relationship between 'at will' and the discrimination laws. Whether a given employment action is or is not ultimately permissible is a jury question (provided the plaintiff has shown sufficient reason to believe that discrimination might have been the cause). We can talk about the burden shifting bit, if you guys want, but it's not all that much fun to people who aren't in litigation.

And "protected class" is a term of art.

[CharleyCarp]

if one wants the protection of the law, beyond the barest and shakiest minimum, one needs to be able to pay a good lawyer to try to obtain it for you. It's unfortunately usually that simple.

[Gary Farber]

"A key employee is in a same sex relationship with a person from Columbia who is in the country illegally and is, in fact, facing deportation."

Probably you mean Colombia?

"If they were to marry (in a state where it's legal) would they be afforded the same immigration protections a hetero couple would under similar circumstances?"

IANAL, let alone an immigration lawyer, but since immigration law is federal, and federal law doesn't recognize same-sex marriage by any state, I have little doubt about the answer under today's legal regime. It seems extremely, extremely, clear.

It would have been big, big, news, if Bush Administration had suddenly legally recognized gay marriage.

I'm a bit puzzled that the question would need to be asked, to be honest. This is one of the larger political debates of our time, after all.

[Edward_]

KCinDC,

Thanks. Yes, I looked it up and saw "person" as well, suggesting it might have evolved a bit since entering English from the Yiddish. I use it to mean "Human," which is the highest compliment I can think of.

And I agree that "Miss Thing" is used quite differently. There, I was definitely trying to be funny. Actually, in New York, it's more "Miss Tha-a-a-ang."

[xanax]

Colombia, correct (as usual Gary).

Re "I'm a bit puzzled that the question would need to be asked,"

Grasping at straws, really, in an effort to be helpful (it's a very sad situation).

Thanks for the input.

[John Thullen]

Ugh:

"I'm fairly sure it's perfectly permissible now to fire someone because they're _heterosexual_, it's just that it never happens (or happens only rarely)."

On the other hand, I had a friend who showed up dressed as the Flying Nun for his draft physical back in the Nam era, and they told him he was fit to serve .... even though he was Catholic.

I think the Armed Forces are prejudiced against heterosexuals, for this reason: If you are explicitly gay or transgendered, they let you remain on the home front far, far away from harm to your person. You don't even have to get up early and shine potatoes.

Yet, your average straight heterosexual has his civvies stripped from him by clammy-handed corporals, and is outfitted with cheap armor and transported to the front for immediate butchering.

Women, blacks, and other lucky groups used to be in the same boat as the gay and transgendered among us. Then, they lost the advantages of special treatment.

[John Thullen]

Ugh:

"I'm fairly sure it's perfectly permissible now to fire someone because they're _heterosexual_, it's just that it never happens (or happens only rarely)."

On the other hand, I had a friend who showed up dressed as the Flying Nun for his draft physical back in the Nam era, and they told him he was fit to serve .... even though he was Catholic.

I think the Armed Forces are prejudiced against heterosexuals, for this reason: If you are explicitly gay or transgendered, they let you remain on the home front far, far away from harm to your person. You don't even have to get up early and shine potatoes.

Yet, your average straight heterosexual has his civvies stripped from him by clammy-handed corporals, and is outfitted with cheap armor and transported to the front for immediate butchering.

Women, blacks, and other lucky groups used to be in the same boat as the gay and transgendered among us. Then, they lost the advantages of special treatment.

[John Thullen]

If you say it twice, it's only half true.

[KCinDC]

Edward_, as a straight male, I have had "You go, girlfriend!" addressed to me, but that was online, in a Usenet newsgroup (sci.lang) that at least then had a high proportion of gay posters.

[KCinDC]

Thullen, potato-peeling jokes are dated. The military doesn't do such things anymore. That stuff is all KBR nowadays.

[matttbastard]

Phil: Small World After All Alert: Not only was I a regular denizen there for some time as well, I was the bass player for The Palindromes, who released two CDs on the Twee Kitten label.

Hee! I remember the Palindromes! Ok, I would never have pegged you for being a twee pop/cuddlecore fan, Phil. I can't remember anyone's screen names, alas (which is sad, because I developed a number of good friendships, including one with a young lady from Sweden with whom I traded a number of tapes over the years).

When I get home I'm gonna break out my (2/3rds complete) copy of the C86 compilation, watch some Heavenly vids on YouTube, and maybe even hug a random stranger (either that, or my punk rock Hello Kitty doll. Shut up.)

[KCinDC]

Damn, I made the mistake of researching the "girlfriend" incident, and it appears I misremembered. It was in fact gender-corrected to "boyfrien'". Now, who's been implanting these false memories?

[matttbastard]

OCSteve: To the credit of those commenting here, you’ve convinced me to support the full bill.

Excellent. :-)

[Gary Farber]

"Grasping at straws, really, in an effort to be helpful (it's a very sad situation)."

Understandable. (I didn't mean to sound critical, if I did.) Best of luck and wishes to the involved parties.

Obviously they should be consulting a good immigration lawyer (a field with a lot of scam artists and particularly exploitive lawyers; get a trusted recommendation), but if someone is being deported for being illegal, and there are no loopholes (refugee status for being politically persecuted, say), it may be that the only options beyond separation would be: a) returning illegally again after being deported; b) both parties moving to Colombia.

But maybe a good immigration lawyer can find a loophole; best of luck.

[KCinDC]

"she's a mensch" - 604 Google hits
"he's a mensch" - 1160 Google hits

Seems pretty gender-neutral to me.

[Gary Farber]

Googlefight gives a different result.

For that matter, Google tells me:

599 English pages for "she's a mensch"

And:

1,200 English pages for "he's a mensch"

Repeated several times, and each time the same result. Close to yours, but not identical.

This person goes for genderless, though.

Plenty more here.

[OCSteve]

Rea: It's not a matter of making new protected classes--it's a matter of according GLBTs the same rights as everyone else.

IANAL, but my understanding is that under Title VII and the various state anti-discrimination laws one of the first criteria for a person to establish that employment discrimination may have taken place is to prove that they are a member of a protected class. Which is to say that if you are not a member of a defined protected class then you have no protection under these statutes.

In terms of “the same rights as everyone else” – counting myself in the group “everyone” - I have no right not to be fired for any reason or no reason at all. I could be fired (as Ugh noted) because my boss has issues with straight people. While I have no “rights” in employment I also don’t feel that I need any special protections as straight white men don’t seem to encounter a lot of discrimination in our society. So I think it is more a protection than a right, and in this case one that seems necessary.

[Jesurgislac]

OCSteve: In terms of “the same rights as everyone else” – counting myself in the group “everyone” - I have no right not to be fired for any reason or no reason at all.

OMG, Steve, you have no sexual orientation? You can't be "fired for your sexual orientation" because you have none?

[Gary Farber]

"I have no right not to be fired for any reason or no reason at all."

That's completely false, OCSteve. It's illegal to fire you for reasons of "race, color, religion, sex, or national origin."

One thing you seem to be unaware of, at least in terms of acknowledging here as yet, is that it happens all the time that people are discriminated against because they are perceived (mistakenly) to be a member of a particular set of the above that they are not.

If you think that's not a real problem, I suggest further looking into employment discrimination. People are discriminated against on the basis of appearance, and perception.

People are often thought gay, who aren't, who are thought "black" or Hispanic, or "Indian," or "Arab," or "not a real Christian," or whatever, and discriminated against, and fired, or not rented to, and so on.

We're all protected by laws against such discrimination, and you, OCSteve, are protected.

You're also protected from being fired by a racist, perhaps a dark-skinned racist, for being white, from being fired by crazed ultra-feminists for being a man, from being fired by ultra-orthodox Jews for not wearing one, from being fired by ulta-gay gays for being a breeder, from being fired for not having had a certain kind of baptism, from being fired for not being Sunni, from being fired for.. the rest goes on and on and on and on.

This is really important. Please appreciate that you are protected, and it's darned important that you are, even if the fact that you are, I gather, a "white" straight man of voting age (but not yet "senior"), makes you think it's unlikely you'll experience discrimination.

You should be so lucky. And appreciate it, too.

[Gary Farber]

To be ultra-clear, this is false: "I could be fired (as Ugh noted) because my boss has issues with straight people."

See here (you are in Maryland, right?):

Maryland Laws Against Job Discrimination

Law: Md. Code. Art. 49B§16

[...]

Maryland makes it unlawful to refuse to hire or discharge someone due to:

* Race
* Color
* Sex
* Age
* National origin
* Marital status
* Genetic information, or refusal to submit to a genetic test.
* Sexual orientation
* Disability unrelated in nature and extent to the performance of the employment.

If your boss harasses or discriminates against you for being straight, they've violated state law, and you can file a complaint with the Maryland Commission on Human Relations if you work for an employer with 15 or more employees, and make within 6 months of the date of discrimination (1 year for housing) or the date when you learned of the discriminatory action.

Where did you ever get the false idea that it was otherwise?

[Hob]

Hey, I get to pick on a typo in a Farber post!

"...from being fired by crazed ultra-feminists for being a man, from being fired by ultra-orthodox Jews for not wearing one..."

For not wearing an ultra-orthodox Jew, or just for not wearing a man? And where would you wear them in either case?

Good post though.

[Gary Farber]

"from being fired by ultra-orthodox Jews for not wearing one"

Whoops, an incomplete revision made that gibberishy. I meant "from being fired by ultra-orthodox Jews for not being one [an ultra-orthodox Jew, or a Jew at all]," but for a moment had a thought about an example involving wearing a yarmulke, then dropped it, but somehow "wearing" got left in.

I've rented from bigoted ultra-orthodox Jews who wouldn't rent to non-Jews, by the way, just to use one example where I could name names of people who would illegally discriminate white straight male you, OCSteve.

(A hateful couple, that landlord and his wife were; celebrated Rabin's assassination, he beat his wife and children, thought all Arabs should be killed, and was an all-around disgusting human being, despite calling himself a rabbi; a disgrace to My People, though hardly a unique one.)

But lots of people would discriminate against you, if not nearly so many folks as discriminate against people they think gay, "black," Muslim, etc. Really. Yet the laws protect you, at least as much or little as it does anyone else.

Complaining that one is less apt to be discriminated against than others, while the law treats everyone identically, wouldn't be very attractive, though.

But the law does protect all of us. Even you.

[Gary Farber]

"Hey, I get to pick on a typo in a Farber post!"

That would hardly be unusual.

[OCSteve]

Gary: Your point is noted. Sloppy language on my part. At the federal level you are correct of course, although when it comes to “at will” employment the reality is much different as you noted up-thread. And of course the same current federal protections (race, color, religion, sex, or national origin) apply to GLBTs as well. I should have written it as I don’t have any more rights to employment than GLBTs.

While I do live in MD, the MD law you cite does not protect me for a couple of reasons I’m not going to get into here. While IANAL, based on the statues that do apply to me there is nothing to prevent me being fired for being a heterosexual (or GLBT, or mistaken for a GLBT [well I’d hope not the L part anyway]).

[Dantheman]

OCSteve,

"And of course the same current federal protections (race, color, religion, sex, or national origin) apply to GLBTs as well. I should have written it as I don’t have any more rights to employment than GLBTs."

That is not correct. These protections do not currently apply to GLBT's. That's what this law is trying to change.

"While I do live in MD, the MD law you cite does not protect me for a couple of reasons I’m not going to get into here. While IANAL, based on the statues that do apply to me there is nothing to prevent me being fired for being a heterosexual (or GLBT, or mistaken for a GLBT [well I’d hope not the L part anyway])."

That is not correct, either. The Maryland law Gary cited includes "sexual orientation" (which the Federal law does not). This prevents you from being fired for being a heterosexual.

[Ugh]

That is not correct. These protections do not currently apply to GLBT's. That's what this law is trying to change.

I think OCSteve was saying that GLBT's cannot be fired because of their race, color, etc.

[OCSteve]

Dantheman: These protections do not currently apply to GLBT's.

I’m not following you. How is it that current law does not protect GLBTs against discrimination based on race, color, religion, sex, or national origin? I’m agreeing that they need additional protections, but there is nothing that excludes them from current protections based on being GLBT…

This prevents you from being fired for being a heterosexual

I’m not arguing about what the law says or what the protections are. I’m saying that for a couple of reasons (that I’m not getting into) the MD law does not cover me.

In any case I didn’t intend to distract from the main topic here, so let’s leave it at this: I support the full bill.

[Dantheman]

OCSteve,

I think I misunderstood you. I thought you meant the same protections as to sex, religion, national origin, etc. also apply to GLBT status. Never mind.

[Gary Farber]

"That is not correct. These protections do not currently apply to GLBT's. That's what this law is trying to change."

I may be misreading OCSteve, but if not, you're misunderstanding him.

If OCSteve was writing sloppily, you may be right; if he was writing carefully, then "And of course the same current federal protections (race, color, religion, sex, or national origin) apply to GLBTs as well" means what it says, which is that the current federal protections against being discriminated against on the basis of race, color, religion, sex, or national origin, apply equally to gay, lesbian, bisexual, or transgendered people in protecting them from being iscriminated against on the basis of race, color, religion, sex, or national origin.

That's what he actually wrote; I'll assume he meant that until he says otherwise.

"The Maryland law Gary cited includes 'sexual orientation' (which the Federal law does not). This prevents you from being fired for being a heterosexual."

Again, he wrote that "while I do live in MD, the MD law you cite does not protect me for a couple of reasons I’m not going to get into here."

Obviously, this leaves the rest of us somewhat in the dark, but it's entirely appropriate for OCSteve to not want to get into personal detail; one possible reason, of course, would be that he works for a firm with 14 or fewer employees. Another might be working for a federal agency that has a state law exemption. But, again, I'm inclined to take him at his word that the Maryland law doesn't apply to him, absent reason to doubt what he wrote.

[Gary Farber]

"Never mind."

Sorry; a neighbor dropped by for about ten minutes just before I finished writing my last comment, so there were no responses at the time.

[OCSteve]

Gary: this leaves the rest of us somewhat in the dark

Nothing mysterious – my personal employment circumstances are such that I’m excluded from the state law as you surmised.
I do have a knack for getting things off track though. ;)

[Gary Farber]

"I do have a knack for getting things off track though. ;)"

Give up your idea that there is a "track" in online (or any non top-down-directed) discussion, and trust in the Force, Luke.

[Jeff]

This is one of the larger political debates of our time, after all.

Actually, the question encapsulated two of the larger political debates of our time -- undocumented immigration and same-sex unions / marriages.

[dutchmarbel]

@xanax: Couldn't he adopt the child too and aim for family reunion? First with the child, than with the other adoptive parent?

I must admit it wouldn't work in the Netherlands, but our recognition of same-sex marriage doesn't help much either; it's very hard for everybody to get permits for partners.

[rilkefan]

Tacitus at NRO: "everyone already has, and has always had, precisely the same right to marry." Presumably GBLs have and have always had the right to not be discriminated against - they could just behave like heterosexuals. I guess that's not so simple for many Ts.

[Phil]

Ok, I would never have pegged you for being a twee pop/cuddlecore fan, Phil.

Oh, my, yes -- the Orange Peels, Belle & Sebastian, Dressy Bessy, Jale, Cub . . . I just eat 'em up. Deep inside I'm a real softie.

Nice to see Trevino engaging in the same sophistry he's always been so good at. Does anybody really pay attention to him anymore?

[hilzoy]

I gather that transgendered people get into some pretty strange questions when it comes to marriage rights. I'm working from memory here -- some of the stuff I ran into while I was researching this -- but apparently some states will allow you to legally change your sex, and others don't. So, for instance, a man who marries a woman, and then changes his sex legally to 'female' and goes through surgery etc. is in a same-sex marriage in some states; on others, not. Likewise, someone who has already gone through gender reassignment and gets involved with someone of his or her new gender (I know this is the wrong way to put it, but I don't know what the right way is) can marry that person in those states that still regard him/her as a member of his/her original gender, but not in states that allow changes in gender and prohibit same-sex marriage.

I believe I read about a case in Kansas in which someone's wife was blocked from inheriting after it was discovered that she was originally male: that meant that the marriage was void, and so on.

Personally, I think this is ludicrous, but then I've never seen why the state has any business barring consenting adults from marrying whoever they choose. Although, on reflection, if polygamy were legal and (say) whole mafia families married one another in order that all of their communications with one another be privileged, I might change my mind.

It does make me wonder whether gay couples who want to marry might not just have one partner change his or her gender, though. Not that anyone should have to do that; just a theoretical possibility.

[Gary Farber]

Tacitus at NRO: "everyone already has, and has always had, precisely the same right to marry."

I'm unclear how Tacitus' argument doesn't identically apply to anti-"miscegenation" laws.

It's not incidental that, as Wikipedia notes, "anti-miscegenation amendments were proposed in United States Congress in 1871, 1912-1913 and 1928."

But "From 1913 to 1948, 30 out of the then 48 states did so. In 1967, the United States Supreme Court unanimously ruled in Loving v. Virginia that anti-miscegenation laws are unconstitutional."

It now seems so distant in time, and most of all, concept, to most people now, that they find it somewhat difficult to conceive of, but these laws were in effect all across the U.S. through my childhood, and I'm not actually that old.

Yet people of whatever "race" still had "precisely the same right to marry" they'd had for generations: the right to marry people of the "same race," and no other. Where was the problem, according to Tacitus?

[Gary Farber]

"Although, on reflection, if polygamy were legal and (say) whole mafia families married one another in order that all of their communications with one another be privileged, I might change my mind."

The problem there wouldn't be the form of marriage, but the fact that they were using it to abuse criminal investigation, which is to say, for fraudulent and illicit purposes.

Surely a solution to punish that could be found that's narrower than abolishing their right to marriage, just as in a case today where, say, marriage is abused for purposes of getting around immigration laws -- by this I mean outright fraudulent marriages between purposes solely for profit by one party and a visa for the other -- isn't a problem we think it proportional to solve by eliminating the right of two single people to marry.

[Gary Farber]

Good lord, why didn't I preview that?

Trying again: "The problem there wouldn't be the form of marriage, but the fact that they were using their right to marry abusively, to interfere with criminal investigation, which is to say, for fraudulent and illicit purposes."

And: "...by this I mean outright fraudulent marriages between people solely for profit by one party and a visa for the other...."

Sheesh.

[rilkefan]

"I'm unclear how Tacitus' argument doesn't identically apply to anti-"miscegenation" laws."

Gary, you can I think find the answer to that in the archives - I'm pretty sure I raised that objection when he made that argument here. I would guess he responded by saying that marriage was by definition between a man and a woman.

[Edward_]

Tacitus...Josh...I beg you, give it up dude. You've lost that argument.

You're tempting fate to intercede and lead some closeted person to romance, marry, and then utimately crush someone you love...perhaps your own child some day.

Seriously...figure it out already.

[trilobite]

Hilzoy & Gary: You raise an interesting point. I have had to speak gently to a number of polyamorous friends about the likelihood of people abusing the legal priviliges of marriage in the unlikely event of legal recognition of poly relationships. It would happen, I think, much more often than people abusing the current dyad-only form, because you could include your "real" spouse in a fake poly arrangement, whereas a fake dyad-marriage precludes you from following your true romantic interests.

It would be pretty difficult to stop abuses. For instance, take that Mafia "family." How exactly do you distinguish them from a "real" marriage? It's not like they don't meet regularly, share common interests (financial and otherwise), and other indicia of a close relationship. What test do you use? Not really in love? Half the marriages in America would fail that test. Not enough sex between all partners? Ditto. Married primarily for money reasons? Maybe not half of all marriages, but some, and a lot more marry partially for financial reasons. Married in order to facilitate a criminal enterprise? Prove it -- without using spousal-privileged testimony. What if only some of them married for that reason, but some are really in love, or belong to a Perfectionist-like cult (group marriage as a religious principle), or whatever? And do you really want the state judging which marriages are authentic? I know, they do it now for immigration purposes, but that seldom comes up.

It's not just the big-time crooks that would do it, either. Lots of people who kinda like each other would marry for the tax break, others so they could break zoning laws and get cheap communal housing, etc., etc.

Some of my friends then say, well, then just abolish all marriage privileges. This is throwing out the baby with the bathwater: in the name of "fairness," they propose to do away with social rules that are remarkably convenient for 90%+ of the adult population. Bad social engineering.

I think we're going to want to wait a few hundred years on recognizing poly marriages. If we wait, stable social customs will evolve which the law can then codify. In the meantime, tho, I wish we would stop prosecuting polygamy AS SUCH, and just prosecute the forced juvenile marriages, rape, and incest too often associated with the institution.

[Anarch]

Tacitus...Josh...I beg you, give it up dude. You've lost that argument.

How often has that been said in the past five years?

[Jesurgislac]

Edward_: Tacitus...Josh...I beg you, give it up dude. You've lost that argument.

It's my strong impression that people who make that argument are thinking in terms of who their gay son (or daughter) might marry - desperately wanting their GLBT child to become "normal" again.

They're not thinking in terms of the long-term effect of that fake marriage, because they're thinking with a kind of painful and terrified hope that the long-term effect will be that the fake marriage will become a real marriage, that their gay son (or daughter) will somehow "become normal" by being married. I think this is particularly easy for a certain conservative thinking, where it's presumed that women aren't looking for sexual fulfillment in marriage, just a father/provider for her children. (There's a serial report on Love Won Out at Box Turtle Bulletin, which I recommend to anyone who finds this kind of thinking painfully necessary to understand.)

Well, plus people who make that argument because they're part of the Right-Wing Noise Machine, and haven't actually thought about any of the consequences. As I see Josh now admits he was a speechwriter for George W. Bush's administration, I suspect that's mostly his motivation for arguing that GLBT people ought to enter into fake marriages: he's learned not to think too hard about the human consequences. If you can do that for the Iraq war, not thinking about the human consequences of fake marriages are a snap.

[Christine]

Thanks Hilzoy for posting this and creating a forum for discussion. As a transwoman, I appreciate that you and others here have obviously thought about what it might feel like to be trans and have some degree of empathy, so thanks for that.

I have been encouraged to see a surprising amount of support for trans inclusion on ENDA, but in this case I think transwomen have been singled out more due to misogyny and an anti-female/feminine attitude among a certain class of gender-normative gay males than for any other reason. We literally scare them. I’ve seen it happen. Thanks so much to Jerry Springer for all that productive education you’ve done on behalf of the trans community. It’s really paying off now.<\sarcasm>

There’s a new book out by Julia Serano (http://www.juliaserano.com/whippinggirl.html) that talks about much of this stuff and I found it a great read. She talks about the issues of misogyny, cissexual privilege, and oppositional sexism, concepts you may or may not be familiar with, but the way she reframes the debate has been refreshing for many transpeople, and I think it and other works by trans writers have helped us to begin to sort out and name what we are experiencing, and take back our voices from the shrinks, doctors, lawyers, and even the feminists who would try to tell us who we are, and more importantly, who would make sure we were well hidden and out of plain view.

I don’t think any of the concerns expressed about giving transpeople employment rights are based on facts or any kind of empirical evidence that would justify continued discrimination. And somewhat ironically, I find the arguments for excluding transpeople from Frank, Pelosi, and the other transphobes out there as an indication that there is indeed a serious problem comprehending reality, but that it is not the transpeople who are suffering from this particular malady. It is the cissexuals who are really suffering from this strange form of blindness. They have what I think of loosely as “unexamined sexual selves,” but worse, they proceed to project their ignorance about the roots of their own sexual and gender development onto transpeople, and then fail to see their transgression for what it is: a privilege they enjoy at the expense of transpeople. They were just born that way, but we are somehow “made” and hence they assert their supposed superiority by the implied (but never justified by evidence) artificiality of transsexuals.

For example, in this very thread we read from Phil: ”It does make me wonder whether gay couples who want to marry might not just have one partner change his or her gender, though. Not that anyone should have to do that; just a theoretical possibility.”

How about this as a theoretical possibility, Phil? Imagine I offer you ten million dollars, but in order to collect, you must have sex-reversal surgery and live out the remainder of your life as female. (I am assuming you are male identified) So the question is: how is it that you could know this decision would be a disaster for you? Where does that voice come from that informs you of your gender? What makes you believe that you could just pick and choose your gender identity? What personal evidence do you have that gender identity is a choice in any meaningful way? How did you choose? And if you didn’t choose, then how can you assume there is really a choice for anyone?

Another idea: what if you went in to get your appendix removed, and low and behold, due to a clerical mistake you got reassigned to female. How would you feel? Would that make you female? Would you suddenly “feel” feminine? Would you then be attracted to men? Can you be a man if you don’t have a penis? Until many people start asking these kind of questions of themselves we will continue to live in the dark ages with regard to sexuality.

And for many transpeople we are not talking about getting the tax deductions from marriage. We are not even remotely close to that point. We are literally fighting for our lives. So please, for those who like to make comparisons and analogies, understand that this is a life and death matter and that it is deeply troubling to see comparisons between very modest financial benefits of legal marriage and the kind of discrimination that transpeople have come to experience as a matter of course.