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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Friday, March 16, 2007

VT: "Transgender Bill Rife With Problems"?

There's a new bill to add gender identity and expression to the Vermont human rights statute. As many of you may recall, Vermont has tried several times to pass a bill including gender identity and expression, and was most recently shot down by Governor Douglas because he was concerned (somewhat contradictorily) that transgender people were already covered under existing law, and that legislation would raise unresolved issues for law enforcement and businesses. I posted several times on the last attempt, which you can see by clicking here.

It seems that Governor Douglas' concerns have been addressed, and he is ready to sign the bill.

From Autumn Sandeen over at Pam's House Blend:

"The Vermont Senate passed a bill banning gender identity discrimination on March fifteenth. It's a preliminary vote -- 26 to 0 -- that the State Senate approved on Thursday. Governor Jim Douglas has indicated that he was likely to sign the bill if it reached his desk. He vetoed a similar bill last year based on wording that he considered too broad, but his concerns have been addressed in this version of the bill."

Here's another news item about it: Senate passes bill banning gender identity discrimination

Despite all the work to allay fears about transgender people, however, the same bugaboos keep cropping up. The article linked to the title above takes you to an opinion piece in the Burlington Free Press. It makes a number of points which are based on fear, rather than reason.

The first point is that all transgender people suffer from a "treatable mental disorder". This is incorrect, as the Diagnostic and Statistical Manual of the American Psychiatric Association applies "gender identity disorder" only to those who suffer from "clinically significant distress" as a result of their non-traditional gender. No distress, no disorder. In addition, the adjective "treatable" is misleading because the primary treatment for those with the disorder is to transition from one gender to another. The writer's statement make it sound as if there's a pill to make it go away. Furthermore, not all transgender people wish to transition to living in another gender, removing them from the "gender identity disorder" differential diagnosis.

The writer then states that the "Common Benefits Clause" of the Vermont Constitution forbids laws against employment discrimination for transgender people unless the law also includes kleptomania and anorexia. This wrongly assumes that the primary reason for protection of transgender citizens is the fact that it is a disability. "Disability" statutes don't prohibit termination of the disabled if they are unable to meet job performance criteria. Rather, they require employers to give reasonable accommodations to allow disabled employees to meet the job performance criteria. The Vermont legislation is not such a "disability" type bill. It is a "non-discrimination" type bill, the same one that 80 cities and 10 states have successfully implemented.

Moreover, if this reasoning were correct, it would invalidate the Americans With Disabilities Act and all of the state statutes and regulations protecting people with disabilities in all 50 states. In fact, there is no requirement under the Vermont Common Benefits Clause that every disability be considered the same. I've reviewed all the dozen or so cases Vermont has involving that clause, and none of them suggest such a conclusion. In fact, they all say that the meaning of the clause is simply that there be a rational basis for laws passed by the legislature. Non-discrimination and the benefits of diversity are more than enough reason to prohibit discrimination against transgender people. There is a rational basis to treat kleptomania and anorexia differently because they are not "identities."

The author also says that prohibiting employment discrimination against transgender people is "sending a message that such illness is healthy, or even desirable, rather than encouraging treatment and recovery." As I mentioned, the primary medically-sanctioned treatment for transsexuals is transitioning to another gender, so enacting non-discrimination protections will actually facilititate treatment. In any event, the author is arguing in essence that employment discrimination is a form of treatment of mental illness, and such a suggestion is patently absurd.

The author also points to "hardship for businesses, schools, and the common person." The same argument was used in regard to the employment of African-Americans and women. If you really want "Common Benefits," then a little hardship is called for.

The author also states, wrongly, that "gender identity" is undefined in the law. If you read the very first clause of the bill, you'll find it there. Here's the text: http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/bills/intro/H-228.HTM

He wants answers to certain questions, implying that they can't be easily answered and will therefore lead to lawsuits. Let me take a crack at them:

1) Specifically, what types of behavior associated with "transgenderism" or gender dysphoria would not be protected by this legislation?

A: This question assumes that the statute protects the behavior of transgender individuals. This is incorrect. Rather, the statute prohibits certain behaviors of employers, owners of public accommodations, and other, to wit, they may not discriminate against or harass those with a gender identity that is not traditionally associated with their sex at birth. As the statute notes, if a transgender person's behavior violates a reasonable work policy of the employer, the statute does not protect against corrective action or discipline by the employer.

2) Who defines "reasonable workplace policies" -- the employer, the state, or the courts?

A: "Reasonable" is a term used in many thousands of statutes. It is generally interpreted by the courts to indicate actions or beliefs held by a "reasonably prudent person." In other words, "reasonableness" is defined by custom, in this case, the custom of employers. The term is intended to be non-specific because it would be impossible to anticipate all situations, and reasonableness is determined on a case-by-case basis.

3) Please provide examples of "reasonable workplace policies" which would accommodate a "she/male" transsexual who wishes to retain their position as a retail clerk, and also protect the employer against a lawsuit for discrimination?

A: First, note that "she/male" is a term generally used in the pornography industry, and is considered derogatory. Also, many transsexuals are "female-to-male," i.e., they are not "shes."
One example of a reasonable workplace policy is a dress code that specifies acceptable dress for workers. For more examples, see the "Sample Policies" available at hrc.org.

4) Please provide examples of "reasonable workplace policies" which would accommodate a third-grade teacher transitioning to the opposite gender (a two-year process), and would protect the employer against a lawsuit for discrimination?

A: In addition to the dress code example above, one policy specific to the K-12 environment would be a rule that specified the types of questions that a transsexual teacher could answer about medical/surgical procedures related to gender transition. Another would be a rule that mandated training for students and other staff members. The Batavia, NY school system recently did an excellent job on this issue. See http://jweissdiary.blogspot.com/2006/08/school-district-for-diversity_29.html

The author implies that these questions can't be answered easily. As is shown by the experience in 80 U.S. cities, 10 states, the E.U., Canada, New Zealand, Australia and other place, the administrative convenience of simple rules discriminating against transgender persons cannot be allowed to trump the "common benefits" of equal protection for all.

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