A Long Road Ahead to Civil Rights

The Maryland chapter of the transgender activist group It's Time, America! has drafted language that the group believes should be included in the definition of sexual orientation of the Maryland Gay civil rights bill. That language would call for prohibiting discrimination based on a person's "having or being perceived as having an identity expression or physical characteristics not traditionally associated with one's physical sex or one's biological sex at birth."

The Blade survey of bills found ten states this year in which statewide Gay civil rights bills have been introduced, seeking to prohibit discrimination based on sexual orientation in areas such as employment, housing, and public accommodations. In only three of these states - Colorado, Missouri, and Illinois - did the bills contain the more inclusive language necessary to ensure that all forms of gender-based discrimination would be prohibited. (The Colorado bill has already been killed in committee.)

Of the 10 states that have statewide Gay civil rights laws on the books, Minnesota is the only state where gender identity is mentioned as a protected class. That is, in large part, due to the fact that the move to make such laws protective of more people, especially transgender people, is a relatively recent one.

The brouhaha over Maryland's Gay civil rights bill began only this year. The statewide Gay civil rights organization, the Free State Justice Campaign, first drafted a Gay civil rights bill that covered only sexual orientation discrimination. After being lobbied by transgender activists, the group tried to convince the bill's sponsor, Del. Sheila Hixson (D-Montgomery), to add such language into the measure but she refused. That prompted the resignation of Free State's legislative co-chair Jessica Xavier, who is also active with the national transgender civil rights group It's Time, America! and with its Maryland chapter. Shortly after Xavier's resignation, the Maryland chapter of the transgender group announced that it would officially oppose Maryland's Gay civil rights bill as long as the legislation fails to carry the more inclusive language.

According to Xavier and It's Time, America!, people are more often discriminated against, not because they have a different sexual orientation per se, but because they behave in a way different from that expected of their gender.

Laws prohibiting discrimination based only on sexual orientation, said Xavier, "do not cover conduct and behavior and may not protect even straight-appearing Lesbians and Gay men." As an example, Xavier noted that, in a case recently refused review by the U.S. Supreme Court, a Lesbian attorney's employer withdrew a job offer after learning that the employee, Robin Shahar, was planning to have a religious ceremony to formalize her relationship with her lover.

"Robin lost her job because of her conduct, which can be broadly defined as behavior [and] appearance," Xavier said.

In Missouri, the move has been more successful. A Gay civil rights bill introduced there in February was written to include transgender people and has 16 sponsors - many more than Gay activists expected, according to Jeff Wunrow, executive director of the Privacy Rights Education Project, a statewide Gay lobby. However, Wunrow said he does not expect the bill to pass out of committee this session.

"Frankly, I still think that we have to do some more education," he said.

Protections for transgender people "would be too advanced" for North Carolina legislators, said Charles Merrill.

But Gay civil rights bills have typically taken many years, sometimes two decades or more to pass, and the Missouri bill - even though it has attracted some press and public attention -has not prompted a conservative backlash, said Wunrow.

In Pennsylvania, Gay activists are poised to introduce a civil rights bill in which gender identity language is not only included but is one of the bill's so-called "core principals." Since September 1996, Gay activists there have been holding community meetings and circulating a petition (already signed by 2,500 people) in support of the legislation.

Meetings with the Pennsylvania legislators have been "frustrating," said Rita Addessa, executive director of the Philadelphia Lesbian & Gay Task Force, because the Pennsylvania statehouse is dominated by conservative Republicans, many of whom are opposed to any new civil rights law.

"The leadership, over all, say they are not supportive of civil rights," Addessa said. "Some are saying that they think of civil rights as an 'archaic' notion."

Addessa said her organization is still working on getting primary sponsors for the legislation, which they hope to have introduced sometime in the early to late spring.

While the push to have civil rights laws be more inclusive and protect transgender people is growing, albeit slowly, Xavier said that efforts to make other laws more inclusive are even rarer. Attempts on the state level to have hate crimes penalty bills cover assaults motivated by a victim's gender identity, she said, are "nada!" But in California, where Gay and transgender activists have been working side by side for some time, this may be soon changing. California Assembly Member Sheila Kuehl (D-Los Angeles) introduced a bill on Feb. 17 that seeks to add advanced criminal penalties for hate crimes based on gender identity. California already has a hate crimes law that includes sexual orientation but not gender identity. The hate crimes bill has been a collaborative effort between the statewide Gay organization, LIFE Lobby, and the San Francisco-based transgender organization Female To Male International. The bill is "crucial legislation for California," said LIFE Lobby Executive Director Laurie McBride, who said this is one of the main priorities of her group.

According to Eric Astacaan of LIFE Lobby, getting a hate crimes bill to cover sexual orientation was the first step in gaining a statewide law that prohibits employment discrimination based on sexual orientation in California in 1992. He believes it is also the logical first step in gaining protection for transgenders as well.

"Strategically speaking, it's like going through different barriers," Astacaan said. "If you can prove that people are being violated or are experiencing hate crimes based on their gender identity, then you can go for civil rights protections."

"It's a process to get our own community to understand that biology isn't destiny," said Gina Reiss. (by Clint Steib)

Shannon Minter of FTM International agreed.

"Hate crimes legislation is a very good, sensible place to start in terms of getting trans people some protection under the law," he said. Minter added that the Gay community in California has been "extremely supportive and inclusive" of transgender people. "I think there's a real belief here that we need to all work together."

But the California "work together" attitude is not apparent in some other parts of the country. Trying to convince state Gay activists to work for transgender-inclusive language is often disappointing, say transgender activists. Many see Gays as leaving them behind in order to more easily secure protections based on sexual orientation. But according to a number of Gay activists who say they are supportive of transgender inclusion in Gay civil rights laws, they are wary of making the push for gender identity language too quickly because they say it sends even many of the most Gay friendly legislators running.

Passing legislation that includes protections for transgender people "would be too advanced" for North Carolina legislators, according to Charles Merrill of Citizens Against Discrimination. In North Carolina, he said, Gay activists have been too busy fighting anti-Gay legislation to make a serious effort at advocating for even just Gay civil rights.

Carol Gnade of the American Civil Liberties Union in Utah said that, in order to get increased transgender rights in her state, it would take "a major awakening on the part of the radical right, which is a snowball's chance in hell."

In Nevada, openly Gay Assembly Member David R. Parks (D-Clark) said the laws are "totally silent" on transgender issues and he does not see much hope in the near future for changing this, especially since he expects the state-elected officers to be mostly Republican next term.

But even beyond the legislators, many Gay activists said there is also a need to educate the Gay community still about transgender issues.

"The Gay community here is very mainstream and assimilated," said Arizona Rep. Ken Cheuvront (D-Maricopa), who is openly Gay. Cheuvront said "no real radical elements are visible" in the Arizona Gay community and there is no vocal transgender community.

West Virginia Lesbian & Gay Coalition Chair Barbara Steinke, who said she does not expect the West Virginia Gay civil rights bill to make it out of committee this session, said transgenders are included in terms of her group's philosophy but not yet in terms of the language of the civil rights bill. Like many Gay lobby groups, the Coalition, said Steinke, was unclear about how to word Gay civil rights legislation to include transgenders.

Most activists, such as New Jersey Lesbian & Gay Coalition Executive Director Gina Reiss, talked about the need for increasing transgender awareness among Gays.

"It's a process to get our own community to understand that biology isn't destiny," she said. "We need to educate first."

Ironically, perhaps, it is more common to find transgender-inclusive language in civil rights codes at the city and county level, according to Xavier.

"There's a dozen cities that have either ordinances or orders signed by mayors ... that have [transgender] protections," she said.

"Most of us live and work in the cities," Xavier said, and that is where many of the chapters of It's Time, America! are based. "We're trying to be realistic, which is not to say that we're abandoning being included on the state level - all of our chapters [do work] on the state level."

The issue of transgender inclusion has now touched every level of Gay activism. On the national level, the federal Employment Non-Discrimination Act (ENDA), which seeks to prohibit workplace discrimination based on sexual orientation, has gone through the same controversy. In 1996, transgender activists met with Lesbian civil rights attorney Chai Feldblum to draft an amendment to ENDA that would cover transgenders.

Feldblum, who served as a legal expert in formulating ENDA, helped the Gay lobby organization Human Rights Campaign craft language that would prohibit workplace discrimination based on gender identity. But while HRC helped to write it, the group stopped short of adding the language into the bill. In November 1997, HRC's then-legislative director Daniel Zingale angered many transgender activists when he told them that such language would hinder the bill's passage.

Bill count ...

Meanwhile, the Blade survey of state legislatures recorded at least 83 Gay-related bills in 28 states as of the first week of March 1998 - 35 are pro-Gay in nature, and 49 are anti-Gay. There are 11 states currently considering bills that seek to ban legal recognition of same-sex marriage, and two states are considering pro-Gay marriage bills. Ten states are considering hate crimes legislation that includes sexual orientation. Three states have bills seeking to repeal sodomy laws. Two states are considering pro-Gay domestic partnership bills, while four states are considering anti-Gay domestic partnership bills. Two states are considering bills that would restrict the ability of Gays to adopt children, and one state is considering a bill that would restrict the ability of Gays to serve as foster parents. Eight states are considering some sort of anti-Gay or potentially anti-Gay education legislation. Other potentially anti-Gay bills under consideration deal with obscenity, doctor-patient relations, and domestic violence. Thirteen states are considering more than 90 HIV/AIDS-related bills - most reported in New York alone.

Nicholas Boggs, Kai Wright, Rhonda Smith, and Christine Dinsmore contributed to this report.

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