Anti-discrimination bill threatens transgender, LGBT alliances
Published: June 15, 2011
In late April, a video of a beating outside the women’s restroom at a Baltimore County McDonald’s appeared on YouTube. It shows two teenage girls kicking and punching a 22-year-old transgender woman named Chrissy Lee Polis. One teenager drags Polis across the floor by the hair, and near the end of the three-minute video—shot on a cell phone by a laughing McDonald’s employee who did nothing to intervene—Polis appears to have a seizure. The video went viral, garnering condemnation and column inches across the country and around the world. Petitions circulated, bloggers speculated. A columnist in British daily The Guardian opined that Rosedale—where the attack occurred—might rank with Stonewall in terms of historical significance.
“What it has done is taken something that’s been discussed in a very academic and legal way and made it about a person,” says Del. Mary Washington (D-Baltimore City), one of seven openly gay or lesbian members of the state House of Delegates. “If you think of the Civil Rights Act, the little girls trying to go to school, the college students being spit at and yelled at . . . those students put a face on it.”
Ugly as the incident was, the timing was politically opportune for Maryland transgender activists. Just one week earlier, House Bill 235, the Gender Identity Anti-Discrimination Act, had been killed through a procedural move in the Senate. The McDonald’s attack, advocates pointed out, plainly showed the need for protections for the transgendered. Hundreds of trans advocates gathered for a rally at the Rosedale McDonald’s in support of Polis.
But the apparent unity obscured political tensions within Maryland’s transgender community. Months after the end of the legislative session, HB 235—a bill that would have provided job, housing, and credit protections for transgender individuals—remains a sore subject. Some trans activists lobbied for it, while others lobbied against it, judging it inadequate. Harsh words were exchanged throughout the legislative session, particularly in the lawless realm of the internet, with accusations that touched on race, class, and sexual orientation. And by session’s end, Equality Maryland—the state’s leading lesbian, gay, bisexual, and transgender (LGBT) advocacy organization and the bill’s chief lobbyist—was on the verge of imploding. It had lost two prominent legislative battles: the gay marriage bill and HB 235. (In late April, the organization’s executive director, Morgan Meneses-Sheets, was fired or quit, depending on who you ask; she did not return calls for comment for this article. In late May, the organization announced it was in a state of financial crisis. The staff is greatly diminished, and the board president has since resigned.)
Many in the trans community hope to rise, phoenix-like, from the ashes and pass a bill next year. There are signs they may. Following the McDonald’s attack, for instance, Gov. Martin O’Malley issued a statement pledging to work for “even greater protections for transgendered people” in the next legislative session. But before they can take advantage of that promise, trans activists will need to find some common ground.
The conflict over HB 235 had its beginnings before the start of the session, when it was decided that the bill would not include protections for transgender people in what are known as “public accommodations.” These refer to any private establishment that serves the public, including restaurants, hotels, and retail stores. They also include public restrooms, and it’s that humble space that tends to be political kryptonite. Conservative groups opposed to “bathroom bills” argue that allowing transgender individuals to use the bathroom they are most comfortable with opens the door, so to speak, to opportunistic rapists in the form of cross-dressers.
Though HB 235 included no mention of bathrooms, the opposition was quick to bring them up. A group called Maryland Citizens for a Responsible Government distributed fliers to legislators in both houses as part of their “Not In My Shower” campaign, which warns against the dangers of cross-dressing men entering women’s restrooms and locker rooms. A March posting on the blog Right Coast Conservative read: “[HB 235] means that homosexual activists and pedophiles (whose intentions are to ‘PREY ON CHILDREN’ . . . will be able to disguise themselves in women’s clothes, go into any public restroom, and have access to OUR CHILDREN!! [sic].” Legislators even seemed confused as to the reach of the bill. During the House floor debate, Del. Joseph Minnick (D-Baltimore County) recalled seeing a “6-foot-2 woman, dressed to the nines” use the urinal next to him decades before. “The way that person was dressed, [he] could have very easily gone into the ladies’ room and used the ladies’ facility. Now, I don’t think that’s what you want with this kind of legislation,” Minnick said.
The details of how public accommodations came to be absent from the bill are disputed, like nearly everything having to do with HB 235. More on that later. Suffice it to say, supporters of the bill thought it politically advisable to exclude public accommodations because they felt a bill that included them would have gone nowhere. “I wanted to get something rather than nothing,” says Del. Joseline Peña-Melnyk (D-Prince George’s and Anne Arundel counties), the lead sponsor of the bill. “The political reality is that it was the only way to get it out.” Supporters argued that the compromise was necessary, and that a bill addressing public accommodations could always be introduced in a future session. “What you see—and I don’t know that the public sees it very often—is there’s often a difference of opinion between a legislative strategy and what an advocate knows is right,” Del. Mary Washington says. “That language was removed with the hopes . . . that we could get something on the books.”
Trans opponents of the bill, on the other hand, have called it a “separate but equal” approach. “I’ve been doing this for a long time and understand you can’t do this piecemeal,” lawyer and trans activist Alyson Meiselman says. “When you’re talking about civil and human rights, you either have rights or you don’t.” Baltimore OUTloud trans columnist Dana LaRocca, an opponent of the bill, wrote in February: “The places where transmen and transwomen are most often discriminated against are in public accommodations. A bill that leaves out public accommodations leaves transfolk, literally, without a pot to piss in.” To the argument that public accommodations could be addressed later, skeptics scoffed. “What they did with HB 235 was they cherry-picked it,” says Jenna Fischetti of TransMaryland, an advocacy group that opposed the bill. “Well, you’re never gonna come back and get the bad stuff. You’ve got to swallow it with something sweet if you want the bitter to go down.”
Debate over the bill was complicated by the fact that few outside of the transgender community fully understand the meaning of the word. “Transgender,” though it has a complicated history, has come to be a catch-all term for any individual who defies the expectations of his or her birth sex. (Gender identity is unrelated to sexual orientation: the former refers to the matter of who you feel yourself to be, the latter to who you are attracted to.) Under this definition, transsexuals, cross-dressers, drag kings and queens, and anyone who identifies as genderqueer—those who reject the gender binary altogether—are transgender. But when most people hear the word, they think of transsexuals—those who feel that their internal sense of gender is at odds with their physical self. Transsexual people with the means often choose to undergo surgeries and hormone treatments. Some consider transsexualism a medical condition, and some, often termed transsexual separatists, resent being included in the same category with those who don’t desire a permanent transition, like most cross-dressers and drag queens.
“It’s not easy to introduce a community to a state, to get people to understand,” says Dana Beyer, a prominent trans activist who has made several unsuccessful runs for a state House seat. Beyer lobbied in support of HB 235. “Many gay people didn’t understand who trans people were, let alone straight people.” According to Peña-Melnyk, the bill would only have protected those who express themselves in one gender consistently, not cross-dressers or drag queens. But even after hearing testimony from members of the trans community and their allies, legislators seemed confused. Cpl. Maxwell Klinger, the fictional cross-dressing goofball from the 1970s television series M*A*S*H, seemed the only point of reference several delegates had. (In the show, Klinger dresses like a woman in an attempt to get a psychiatric discharge.) “Do you really want to have a situation where Klinger will be put in charge of a classroom of kindergartners?” one delegate asked.
Transgender activists who opposed the bill directed much of their wrath at Equality Maryland and the national LGBT groups that supported it. Some trans activists are still smarting from a bill that passed a decade ago, banning discrimination in employment, housing, and public accommodations based on sexual orientation. Equality Maryland, then known as Free State Justice, shepherded the bill to passage, and it pointedly did not include the transgender community. Alyson Meiselman lobbied for inclusion of transgender individuals at the time. “That was wrong then,” she says, “And what Gay Inc. [trans slang for a perceived gay establishment] is doing now is just plain wrong. It’s unethical.”
Del. Maggie McIntosh (D-Baltimore City), who is openly lesbian and was a delegate at the time, raised the matter on the House floor during the HB 235 debate. “It was a calculated decision and one that I frankly regret,” she said of the removal of the transgender community from the bill. “I think it was the wrong decision.”
This sort of friction between the transgender portion of the LGBT community and the gay and lesbian portion goes back decades, though straight folk may rarely make the distinction. It’s a power imbalance most trans activists acknowledge, if not all are terribly bothered by it. “Far, far more people care about marriage equality than they care about trans rights. That’s the reality in this country,” Beyer says. “There might be moments in time when that changes, but for the most part, the trans community is a kid sister to the gay community.”
But others feel they don’t have a voice under the current rubric. “I don’t hear of people dying because they don’t get gay marriage,” Fischetti of TransMaryland says. “The priorities [of the LGBT organizations working on HB 235] to me were a little screwed up.”
Susan Stryker, director of the Institute for LGBT Studies at the University of Arizona, former director of the GLBT Historical Society in San Francisco, and a transwoman, says these rumblings of discontent within the LGBT movement have been noticeable since the early 1970s. Sexual liberation for some gays and lesbians at the time meant that transgender individuals began to seem repressed, old-fashioned. “There’s a story that gets put on it, where one way of being is presented as the more politically correct, the more liberated,” Stryker says. “‘You, nellie street queen, don’t have to cut off your genitals to express yourself and be a woman. It’s okay to be a flamboyant and outrageous gay man.’” Then, in 1973, after a swell of activism, homosexuality was delisted from the Diagnostic and Statistical Manual of Mental Disorders (DSM). “And in the context of that, transgender people were seen as the people who were still trying to be medically defined somehow,” Stryker says. “They weren’t being properly liberated from psycho-medical tyranny.”
Times have changed, but the alliance is at times still an uneasy one. Some gay activists have argued against including the T with the LGB, wondering if the relationship even makes sense, given that L, G, and B all have to do with sexual orientation and T does not. At issue, in part, is the fact that bills that include rights for transgender people are harder to pass than those that only cover sexual orientation. Stryker believes that the opposition has discovered this rift.
“One of the best ways of combating gay rights is to wave the transgender bloody shirt. . . . The transgender monster figure, the man in the dress in the women’s room, becomes the scare tactic,” she says. “It’s useful because it plays on very pervasive cultural stereotypes and does, in fact, address a wedge issue in LGBT politics.”
The McDonald’s incident may have been caught on video, but violence against the transgendered is not unusual. Just last February, a transgender woman named Tyra Trent was found murdered in a vacant house in Northwest Baltimore. National LGBT organization Human Rights Campaign estimates that 1 in 1,000 homicides in the United States is an anti-transgender hate crime. Discrimination also comes in more subtle forms, as a national transgender discrimination survey released in February indicates. Of the 6,450 transgender and gender non-conforming individuals interviewed by the National Gay and Lesbian Task Force and the National Center for Transgender Equality, 41 percent reported attempting to commit suicide. The respondents had double the rate of unemployment for the average population, one-fifth had experienced homelessness at some point in their lives, and over half reported being verbally harassed or disrespected in a place of public accommodation.
In response to such data, 14 states and over 100 smaller jurisdictions—including Baltimore City and Montgomery County—have passed gender identity anti-discrimination bills over the last decade. (At press time, a bill in Connecticut was awaiting the governor’s signature.) All of these states provide public accommodation protections, though the legislative strategy differed in nearly every case. On the federal level, gender identity is still a newcomer. The Employment Non-Discrimination Act (ENDA)—which only covers discrimination on the job—was first introduced unsuccessfully in 1994, but for years it called for discrimination protections solely on the basis of sexual orientation. It wasn’t until 2007 that gender identity was added to the bill (though, that year, a competing bill lacking gender identity protections was also introduced). It remains a part of the bill, which continues to languish in Congress.
In Maryland, a comprehensive gender identity anti-discrimination bill—one that included protections for employment, housing, and public accommodations—was introduced in each of the four years prior to the 2011 legislative session with no success. In each case, the bill—generally sponsored by Sen. Richard Madaleno (D-Montgomery County)—died in the Senate Judicial Proceedings Committee. This year, Equality Maryland decided to begin in the House, with Joseline Peña-Melnyk as lead sponsor.
“She’s a fierce advocate for equality,” says Patrick Wojahn, chairman of Equality Maryland’s Foundation board of directors. (Former Equality Maryland Executive Director Morgan Meneses-Sheets did not return phone calls seeking comment for this article; communications manager Linsey Pecikonis referred all on-the-record questions to Wojahn.) “We believed that we had the votes in both houses of the legislature and we knew . . . that we’d have an easier time to get it passed on the House floor.”
Some opponents of the bill claim that it was Equality Maryland that removed the public accommodations piece of HB 235 as part of a political strategy to smooth the way for Senate Bill 116, the Civil Marriage Protection Act, which had been introduced simultaneously in the Senate. “It was basically just something that they could introduce that would give the transgender community the feeling that something was being done for them,” says trans activist Donna Plamondon, who testified against the bill. “A bone that was being thrown to us for our support of marriage equality, ultimately.”
Even supporters of the bill, such as Beyer, acknowledge that Equality Maryland was pouring most of its efforts into the gay marriage bill. “Equality Maryland . . . was really focusing on marriage and not exerting much effort or spending much money on the gender identity bill,” says Beyer, who served on Equality Maryland’s board until October 2010. But she says the organization had nothing to do with the lack of public accommodations language. “A lot of people sort of got fixated on this,” she says. “It became the gay community that was stripping public accommodations. And that didn’t happen.”
Peña-Melnyk says the decision was solely hers. “It wasn’t that I did not know that [public accommodations] was important,” she says. “But I have worked on it for so many years, so hard on it, that I knew what it would take.”
The bill passed out of committee, went to the House floor, and passed handily with an 86-52 vote. It went to the Senate on March 25, well before “Crossover Day,” the deadline for each side of the General Assembly to pass its bills to the other house for consideration. It was as far as a gender identity anti-discrimination bill had ever gotten in Maryland, and hopes among supporters were running high. Both Equality Maryland and Peña-Melnyk had publicly stated that they’d secured commitments from a majority of senators to vote for the bill. But once in the Senate, it was placed without explanation in the Rules Committee, a move usually reserved for bills with problems or those that don’t cross over on time. Legislators and advocates eventually succeeded in getting it out of the Rules Committee and into the Judicial Proceedings Committee on April 6. A few days later, the bill passed favorably, with a minor amendment by Sen. Brian Frosh (D-Montgomery), and went to the Senate floor. Then, on the last day of the session, it was recommitted to the Judicial Proceedings Committee, effectively killing it. Many blame the machinations on Senate President Mike Miller (D-Calvert and Prince George’s counties). They point to a statement Miller made on Maryland Public Television on April 8: “I personally believe [HB 235 is] anti-family, so I’m going to vote against it.”
“Everyone with an inside track to Annapolis knows that arms were twisted to recommit the bill back to committee—and that many of those votes to recommit the bill were from senators who would have voted to pass the measure if it had been given an honest up or down vote,” former Equality Maryland Executive Director Dan Furmansky wrote in The Washington Blade.
But even the post-mortem is disputed. “We killed that bill through grassroots support,” says trans activist Robyn Webb, who testified against the bill because of its lack of public accommodations, along with several others. “The bill was killed because we hit Brian Frosh and every member of that Judiciary Committee with the truth.”
Supporters were disappointed with the defeat, but defended their decision to support a partial bill by arguing that the community could not afford to wait for the time when a comprehensive bill might pass. “Each year this bill doesn’t pass, people die when it comes to the employment protections,” says Lisa Mottet, transgender civil rights project director at the National Gay and Lesbian Task Force. Mottet testified in favor of the bill. Opponents have pointed out that no matter who you are, employment discrimination is very difficult to prove in “at will” states like Maryland, where employers have the right to fire their employees for nearly any reason. But Mottet says such laws work in the cases when someone already has a job. “Everything is going well, and they announce to their employer that they will be transitioning gender,” she says. “When there’s a law, an employee can say, ‘Well, you can’t fire me. That’s against the law.’ It really changes the conversation between an employer and an employee.”
Owen Smith, a trans field organizer for Equality Maryland, says housing, which HB 235 would also have covered, is a big problem for transgender individuals. “I get at least one call a week of a homeless trans person that has nowhere to go,” he says.
But Sandy Rawls, founder of Trans-United, a social service organization that serves primarily African-American, low-income transgender individuals in the Baltimore area, argues that leaving out public accommodations was akin to ignoring the most marginalized segment of the community. “Individuals who have a sophisticated income usually can go just about anywhere they want to go for services,” she says. “People who are low-income have to go wherever they have to go, wherever is available to them in their community.”
Susan Stryker, of the Institute for LGBT Studies, concurs that class has everything to do with the level of discrimination a trans individual may face. She uses herself as an example: “It’s not like I’m wandering into the McDonald’s at midnight because I need some place to go pee,” she says. “I don’t need that public accommodations thing in quite the same way.”
Complicating the matter is the fact that those who can afford hormone treatments and surgeries can often sidestep discrimination by successfully “passing” as their target gender. It’s a common circumstance, says Stryker—who emphasizes that she is speaking in a “big picture” sense, not in reference to HB 235. “I think that there are people who say, ‘We’ll take what we can get now and we’ll keep pushing. Half a loaf is better than none,’” she says. “But then it’s a rule of thumb that the people who are more willing to do that are the people who don’t need that other half of the loaf.”
Everyone interviewed for this article pledged to push for an all-inclusive gender rights anti-discrimination bill in next year’s session, one that includes public accommodations. And most emphasized that, strategic disagreements aside, the transgender community is united in its ultimate goal. Several new trans-specific organizations have emerged since the end of the session, and at this early stage, it appears the trans community may primarily advocate for itself on a new bill, rather than through LGBT groups. Gender Rights Maryland, led by Beyer, is the most prominent of the new organizations. Some trans activists have already expressed skepticism about it, because Beyer and board chair Sharon Brackett were supporters of HB 235. But others say they are willing to work with anyone who shares their goal of an all-inclusive law protecting the transgendered.
“I think we’re seeing an emergence, a very typical path of any social movement which is to begin to define its voice,” Del. Mary Washington says. “We’ve been hearing for years that the voices of transgendered people have been articulated by the gay and lesbian community and their allies. I think this provides an opportunity for people to speak for themselves.”
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