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Washington, D.C.--Nine witnesses, including two members of Congress testified before a House subcommittee on discrimination against transgender people in the workplace on June 26.
It was the first time Congress had held a hearing on the lives of transgender Americans. The testimony was not tied to any legislation in either chamber.
The House passed a version of the Employment Non-Discrimination Act in November that didn’t include gender identity because sponsors feared that members did not understand and would not vote for transgender rights.
The hearing was the first formal step of an education process in anticipation of the introduction of a transgender-inclusive ENDA bill next year.
ENDA is under the jurisdiction of the Committee on Education and Labor, chaired by George Miller of California. Dennis Kucinich of Cleveland is on that committee.
The subcommittee on Health Education Labor and Pensions held the hearing. It is chaired by Robert Andrews of New Jersey, who supports transgender protection as does Miller. The subcommittee has 13 Democrats and 10 Republicans, none from Ohio. John Kline of Minnesota is the ranking Republican.
Seven of the witnesses spoke in favor of transgender protection. One spoke against, and one talked about the unintended consequences of enacting the legislation.
The first to testify was openly lesbian Rep. Tammy Baldwin of Wisconsin.
“I remember a time in my own life, when I thought I had to choose between living my life with truth and integrity about who I am, as a lesbian, or pursuing the career of my dreams in public service,” Baldwin said.
“Among the things that made me change my mind was Wisconsin’s non-discrimination law that passed four years before I first ran for local office . . . as an out lesbian.”
“The importance of nondiscrimination laws cannot be overstated,” Baldwin continued.
“Substantively, they provide real remedies and a chance to seek justice. Symbolically, they say to America, judge your fellow citizens by their integrity, character, and talents, not their sexual orientation, or gender identity, or their race or religion, for that matter. Symbolically, these laws also say that irrational hate or fear have no place in our work place,” Baldwin said.
Next was openly gay Rep. Barney Frank of Massachusetts, who spoke very candidly, without notes.
“It would not have been hard to find an excuse not to have this hearing,” Frank said.
Frank added his own experience to Baldwin’s to explain why laws protecting people in the workplace are necessary.
“[She] and I are examples of the benefits all around us that happen when you overcome prejudices,” Frank said.
Recognizing that Baldwin is younger and “did not have to face living without full honesty,” Frank added, “Well, I did, and I made the wrong choice for a while and behaved irresponsibly because of it.”
“When I first realized I was gay, I made me uncomfortable,” said Frank.
“I realize that when I got involved in politics, if I had been honest about who I was, it would have made some people nervous.”
“But they got used to me,” Frank said.
“I want to reassure people here, that you’re going to get used to them, too,” Frank said.
Frank implored the members of the committee to get to know transgender people, then began making an argument for the protection.
“Whenever members of this body object to something on the grounds that it is redundant, I am skeptical,” Frank said.
“We are a profession, many of us are lawyers, where redundancy is part of the code,” Frank said. “Using a few extra words is rarely something we object to.”
“So when people say something is redundant, they really mean they don’t want it, but they really don’t want to tell you why they don’t want it,” Frank said.
Frank said the next argument made against passing non-discrimination laws of any kind is that they are disruptive.
“Historically, every bill to ban discrimination has been met with the same argument,” Frank observed. “I got nothing against those people. They’re okay, but the law will be disruptive.”
“But it never is,” Frank said.
After a break, witness J.C. Miller, a partner in the law firm Thompson Hine in Washington, D.C., began her testimony by saying exactly what Frank warned someone would.
“My purpose in speaking to you today is not to encourage or dissuade the Committee from passing legislation on workplace discrimination against transgender persons . . . Rather, my intent is to provide some insight into the potential unintended legal consequences of using certain language in any proposed legislation,” Miller said.
“Promoting a workplace free of discrimination is not only laudable, it is sound business practice,” Miller said. “However, any time new legislation is enacted impacting the workplace, there is a subsequent disruption in the workplace as managers, human resource professionals and employees all try to implement new policies and adjust their working routine to comply with the legal mandate.”
“This disruption can be minor or significant depending upon the nature of the new legislation,” Miller testified.
Thompson Hine is a large law firm that often defends companies from discrimination suits brought by employees.
In Ohio, Thompson Hine represented Fairfield Medical Center when it was sued for discrimination by gay police officer Chris Vickers.
The firm includes sexual orientation in its corporate non-discrimination policy, but does not include gender identity or expression.
“Legislation that is vague, overbroad, or imposes radical change frequently leaves business managers frustrated and confused trying to conform to the new law,” Miller said.
“Vague or impractical legislation significantly increases the risk of litigation,” Miller continued.
“I respectfully suggest the committee consider three specific areas when drafting any legislation on the issue: the definition of gender identity; the issues surrounding shared facilities; and jurisdiction over enforcement of rights,” Miller said.
“After all what is a gender related ‘mannerism’?” Miller posed.
“However, it is vital that the language of legislation be clear and uncomplicated when defining “shared facility,” Miller said.
“Some of the proposed language which I have seen exempts ‘shower or dressing facilities in which being seen unclothed is unavoidable,’ Miller said.
“Remarkably absent from this language is the word ‘restroom.’ Not all restrooms contain showers, nor is being seen unclothed in a restroom, particularly a ladies room unavoidable,” Miller said.
“Additionally, the language of the exemption must better address the process of providing adequate facilities to an employee in the process of transforming gender,” Miller added.
“Any requirement that the employer provide comparable dressing room or restroom facilities to an employee after notification that the employee is undergoing a gender transformation needs to be examined pragmatically,” “At what point after ‘notification’ must an employer act?” Miller asked. “If the employee notifies the employer on Monday that he or she is undergoing gender transformation, must the employer permit the employee access to the restroom or dressing room of the opposite gender on Tuesday?”
Glen Lavy of the anti-LGBT Alliance Defense Fund tried to make the discussion about marriage.
“The radical efforts to eliminate the unique, opposite-sex nature of marriage are only a precursor to the opposition’s most dangerous principle,” Lavy stated.
“That principle is simply stated: that biological sex and gender are utterly divorced from one another.”
“If the proponents of the idea that individuals have the right to pick their own gender succeed, upholding the definition of marriage as a man and a woman will be meaningless,” Lavy said.
Lavy also said protecting transgender workers from discrimination would violate employers religious liberty.
“It is important to recognize that religious objections to the concept of ‘transgender’ are based on theological beliefs rather than discomfort with or fear of the unfamiliar,” Lavy said.
“The concepts of male and female being established at birth and the two sexes being joined in marriage are integrally related to theological beliefs about the relationship between God and the church.”
“Forcing persons with such beliefs to treat ‘transgender’ as a valid concept is like forcing an Orthodox Jew to eat pork,” Lavy said.
Retired Army Colonel Diane Schroer, formerly David, was hired in 2004 at the Library of Congress, then turned down once they learned she would be transitioning on the job. With help of the ACLU, she is suing in federal court.
Schroer is an insurgency and counterterrorism expert, and was hired by the library to work in the congressional research service in that area.
“I knew that whether I was David or Diane, I would provide excellent research support to the Congress,” Schroer said.
Schroer’s would-be supervisor ended the lunch meeting where she told her about transitioning by telling Schroer she had been given “a lot to think about.”
A day later, the supervisor told Schroer that she “would not be a good fit” at the library.
In court papers, “the library has claimed that it could not hire me because I would have no credibility with members [of Congress], given that a woman could not possibly know the things I know,” Schroer said.
“And yet, I testify in front of this committee here today.”
Diego Sanchez is the director of public relations and external affairs at AIDS Action Committee of Massachusetts and AIDS Action Council in Washington, D.C.
“I am the only male Georgia letterman I know of who earned it on the women’s tennis team,” said Sanchez.
“Because I work in public health, I know countless transgender people who are homeless,” said Sanchez, “and I know these people by their names and character.”
“These are good people who can’t get work and whose lives are cast to the streets in large cities and small towns.”
“It’s a disgraceful injustice,” Sanchez said.
“I flash my ID every day without concern. It’s not questioned because I have had the luxury of personally paying to transition to male and aligning my IDs and myself,” Sanchez continued.
“But I have friends whose licenses’ and passports’ gender don’t match their identity, so they are disclosed as transgender the minute they show an ID, including when they try to get a job.”
“I face these burdens when recruiting firms ask for my former names as part of their due diligence. It closes doors for me, and it limits the lives of my friends,” Sanchez said.
“It’s an injustice that we are ever evaluated for employment based on other people’s comfort with our existence,” Sanchez said.
William Hendrix III is employed at a subsidiary of Dow Chemical, where he is the global leader of the Gays, Lesbians and Allies employee group.
Hendrix explained the rationale behind Dow’s liberal non-discrimination policies, which, he said, came about because the company operates most of its facilities in rural areas where LGBT employees typically have no protection other than at work.
Hendrix said the company policies, therefore, aid in recruiting and retention of qualified talent.
Sabrina Marcus Taraboletti worked at Kennedy Space Center on the space shuttle on behalf of a contractor until 2003 when she was summarily fired six weeks after telling her employer she would be transitioning after nearly 20 years.
“After assigning security personnel to follow my every move, charges were drummed up, and I was suspended without pay pending a board hearing for dismissal,” said Taraboletti.
“I was escorted off the space center grounds and told not to return,” Taraboletti said.
“I was told the actions were the result of an investigation initiated by an anonymous hotline call.”
“To my knowledge, I was the fourth person attempting transition at the space center while trying to keep their job,” Taraboletti said. “The first three before me also failed.”
“The reason for our failure,” Taraboletti said, “is that there were no formal transgender policies and procedures at the space center.”
“They had no policies because no laws at the state or federal level required them to.”
“My future, therefore, was left up to the interpretation of people who have no education in transgender issues or needs,” Taraboletti said.
“Worse yet, no one really cared or wanted to learn, even though I made a diligent effort to teach them.”
National Center for Lesbian Rights legal director Shannon Minter, a transgender man, said “the current patchwork of local and state laws is inadequate to remedy the pervasive gender identity discrimination taking place across the country.”
“Most transgender employees do not live in a jurisdiction that provides them with legal protection,” said Minter. “In most states, a transgender worker who is fired or harassed for being transgender has no legal recourse.”
Minter said transgender people are often “forced into chronic, persistent unemployment, poverty, and homelessness.”
“This is a crisis in our community,” Minter said.
Following witness statements, some committee members asked questions.
Lavy was grilled by Andrews, an attorney, who sharply challenged Lavy’s understanding of the law.
“It is the law that if an orthodox Jew runs a law firm, that he or she could not refuse to employ a person because they are Catholic. Is that correct?” Andrews asked Lavy.
“That would be correct,” Lavy responded.
“Is that a violation of the orthodox Jew’s religious principles?” Adrews pressed.
“Not that I’m aware of,” said Lavy after a long pause.
“In your opinion,” Andrews continued, should that orthodox Jewish law firm be able to refuse employment to a Catholic applicant? Again, Lavy paused with no answer.
Should a white supremecist be able to deny a job to an African-American? was asked by Andrews.
“No,” said Lavy.
“If we have the power to make the judgement about race, why don’t we have an equally valid power to make a decision about gender identity?” Andrews asked.
“I’m saying that I think it is not a good idea to do that,” said Lavy. “I’m not saying you don’t have the power to do it.”
Minter told California Democrat Linda Sanchez that non-discrimination laws make it clear that the society condemns discrimination, and we have “shocking, blatant, overt, unembarrassed discrimination” by gender identity because of the lack of such laws.