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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.

Sunday, November 4, 2007

Opposition to trans-inclusive legislation in Montgomery County, Maryland

There is a brouhaha brewing in Montgomery County, Maryland, over legislation introduced to protect the civil rights of transgender citizens. Montgomery County is situated just north of Washington, D.C. and Southwest of Baltimore. According to Wikipedia, it is one of the most affluent counties in the nation. Most of the county's residents live in unincorporated locales, the most populous of which is Silver Spring. It is a part of the Baltimore-Washington Metropolitan Area.

A group of conservative citizens, upset about the legislation, scheduled a protest at a swimming pool to highlight its concern that the legislation is, in reality, a plan to force co-ed locker rooms on an unwilling populace, which would endanger women.

The legislator who introduced the measure issued a press release discussing the allegations, using a quote from my book to illustrate the point that the concerns about the danger to women is overblown. The press release follows.

Councilmember Duchy Trachtenberg: Separating Fact from Fiction About Montgomery’s Transgender Legislation Rights Protection Measure Scheduled for Nov. 13 Council Vote
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Release ID: 07-106
Release Date: 11/2/2007
Contact: William Klein 240-777-7830
From: Council Office
Councilmember Duchy Trachtenberg: Separating Fact from Fiction About Montgomery’s
Transgender Legislation Rights Protection Measure Scheduled for Nov. 13 Council Vote

ROCKVILLE, Md., November 2, 2007—Despite the efforts of a small group of ideologically motivated individuals to raise fears and continue discriminatory policies, support for the Montgomery County Council’s proposal to protect the rights of transgender individuals remains strong, Councilmember Duchy Trachtenberg, chief sponsor of the legislation, said today.

The legislation, which has been discussed in a worksession of the Council’s Health and Human Services Committee and at a legislative hearing before the full Council, is scheduled for a vote for adoption by the Council on Tuesday, Nov. 13.

The legislation proposed for Montgomery would amend the County Code and sections of County law to “prohibit discrimination in housing, employment, public accommodations, cable television service and taxicab service on the basis of gender identity.”

Thirteen states have laws prohibiting discrimination based on “gender identity or expression” in employment, another half-dozen—including Maryland—have legislation pending and almost 100 cities have ordinances on the subject. These laws cover about 37 percent of the U.S. population.

The issue of access to public bathrooms has now been resolved by the federal courts. In the landmark case Cruzan v. Davis, a ruling was made in June 2002 by a federal appeals court in Minnesota that an employer is within its rights to instruct a transgendered employee to use the restroom matching their new presentation. The ruling states that if another employee complains, the company may offer the complaining employee an accommodation (such as the use of a different restroom for the complaining employee.)

“Montgomery County has historically taken the lead in protecting its most vulnerable citizens: Minorities, gays, the poor, women, children and senior citizens,” said Councilmember Trachtenberg (D-At-Large). “This is nothing more or less than a continuation of that tradition—an expression of our best and most noble principles.”

Jillian Todd Weiss, Associate Professor of Law and Public Policy at Ramapo College of New Jersey and the author of the book Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals, has written extensively on the subject.

“Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: What if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females?” said Professor Weiss. “This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.

“My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law. Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not.”

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