In many states, if a bill has not been passed through committee by a certain juncture, it’s considered dead. Such was the fate of Maryland House Bill 235, the Gender Identity Anti-Discrimination Act. This highly contentious bill garnered some support, but was also deemed by many to have been constructed with inappropriate language. Championed by Equality Maryland, National Center for Transgender Equality (NCTE), as well as by the National Gay & Lesbian Task Force (NGLTF), it mandated protections for trans individuals with respect to employment, housing and credit. Conspicuously missing, however, was one critical component of anti-discrimination legislation: public accommodations.
The case Equality Maryland and its allies made was that including public accommodations was untenable given the state of Maryland politics and the decision was made to introduce the bill sans public accommodations protections. This choice led to a trans insurrection — activists both within and outside Maryland leapt to defend the importance of public accommodations and to make the case that a bill without these critical protections was not only insufficient, but counterproductive.
What is meant by public accommodations? The kinds of things generally included are transportation facilities, schools, hospitals, malls, homeless shelters, restaurants, other retail areas and, of course, public bathrooms. After all trans activists have written about the bathroom issue, it must be obvious that a bill which leaves huge gaps in these critical areas does so because of all the misinformation that’s been put forth to scare people about purported predation by “trans-freaks” upon innocent women and children. There has never been any evidence to support or corroborate these allegations — they’re merely the ravings of uneducated doom predictors who preach fear as their daily message. And, isn’t this really where the resistance to public accommodations derives and finds root?
The failure to include all of these aforementioned (and other) areas within the aegis of anti-discrimination language leaves huge gaps in both actual protections and in how the public perceives and interprets these protections. It may even be possible for those predictors of doom to use such non-inclusion to bolster their baseless attacks leveled at trans persons and, mostly at trans women, a case of unadulterated transmisogyny.
Am I saddened at the death of HB 235? No and yes. Yes, because of the dissension/lack of concord amongst trans advocates vis a vis the best way forward. But, my gut tells me “no,” because the repercussions and consequences of passing a bill without public accommodations language are potentially disastrous.
One of the reasons trans advocates have become alienated from the larger LGBT community is due to the disparity of enacted legislation. According to the NGLTF website, if gender identity and sexual orientation are not bundled together for the initial anti discrimination bill, then a gap averaging 14.5 years exists between passage of laws protecting gay and lesbian individuals and passage of the same legislation that protects trans persons. Just as in Maryland, we are told to wait, be patient, give it time until the lawmakers and the public are “ready” to accept us. This is unacceptable given the length of time usually needed to revisit many of these pieces of legislation.
The list of jurisdictions which have passed laws protecting gays and lesbians, yet which have not enacted laws to protect trans persons, is vast. One might think that, of course, New York and, especially Massachusetts, the first state to ratify marriage equality, would have taken steps to protect their trans citizenry, but the answer is no.
I spoke with Robyn Webb, a Baltimore resident and a former board member for the International Foundation for Transgender Education (IFGE), just after the bill had died in committee. Her exact words were, “This is not a trans issue…this is an American issue.” Furthermore, she reminded me that the Baltimore and Montgomery County had already passed protections regarding gender identity which supported public accommodations as a critical area of concern. Had HB 235 passed, she and others residing in Baltimore and Montgomery County would have been subject to a curtailing of their individual civil rights.
What kind of message do we send when we attempt to legislate poorly constructed bills without a sufficient radius of coverage? Are we setting a precedent? Of the 13 states which have enacted gender-identity inclusive legislation, each and every one has mandated public accommodations as part of the bill. Only one state, California, passed all-inclusive public accommodations protections after it had already approved other workplace protections. The others states bundled each of these protections together with one other exception — Hawaii omitted workplace protections and is only just now about to overcome that shortcoming. It’s been almost six years! Of the hundreds of jurisdictions which have locally taken steps, most have stipulated public accommodations provisions. Had Maryland chosen to follow the path of California, there is certainly no guarantee that a follow-up bill would have been forthcoming.
Not including buses, lunch counters, homeless shelters, state office buildings and the other areas a bill which opted out of public accommodations language would exclude, means depriving people of their civil rights. Imagine the Civil Rights Act of 1964 guaranteeing right to work, but insisting upon separate bathrooms and lunch counters? It’s hard to make the case that discrimination is unacceptable, when we hedge on what is and what is not deemed “discrimination.”
Precedent goes even further when we talk about the court of public opinion. Many will buy into the fanatic position that standing for full and equal rights means allowing men in dresses license to prey on women and children in bathrooms; that men in dresses will be free to teach their children; that no one will be safe with these gender confused people lurking around. A bill without public accommodations essentially gives power to this baseless mindset; if there were no problems then why exclude critical areas of need? No wonder so many of these transphobes rename bills in their respective states “bathroom bills”.
Passing legislation which protects all citizens of any given jurisdiction should be no big deal. But, when we quibble over what will and what will not be protected, we are treading on civil rights. And, we empower those who would perpetuate baseless allegations that some people are dangerous and don’t deserve equal rights. Wasn’t that part of the argument in 1964? : :
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