GLAA endorses transgender protections in Human Rights Act
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Bill 16-389

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GLAA endorses transgender protections in Human Rights Act


Testimony on Bill 16-0389,
Human Rights Clarification Amendment Act of 2005

Delivered before the Committee on Government Operations

Monday, October 17, 2005


Chairman Orange, Councilmembers and fellow citizens:

Good morning. My name is Craig Howell. I am a native Washingtonian currently living in the Dupont Circle neighborhood. I am a member and former president of the Gay and Lesbian Activists Alliance of Washington, D.C. (GLAA), the oldest continuously active gay and lesbian civil rights organization in the country.

We are happy to support Bill 16-389, the Human Rights Clarification Amendment Act of 2005, to prohibit discrimination based on gender identity or expression.

We thank Councilmembers Graham and Orange for introducing this legislation, and we thank Councilmembers Ambrose, Barry, Brown, Catania, Evans, Fenty, Gray, Mendelson, Patterson, Schwartz, and Cropp for co-sponsoring it. That makes it unanimous. We are delighted to see such a resounding, unified reaffirmation of the spirit and intent of the District's landmark Human Rights Act of 1977. We are also pleased that Mr. Kenneth Saunders, Director of the Office of Human Rights (OHR), is here this morning to offer the Administration's endorsement, and that the local chapter of the ACLU has submitted a letter of support for the record.

Bill 16-389 serves three essential purposes: A clarifying one, an educational one, and a prophylactic one.

First, the clarifying purpose. Transgendered persons have long been considered protected under the Human Rights Act prohibition against discrimination based on "personal appearance." Soon after this law was first enacted in 1973, our organization successfully used this particular provision to pressure several gay bars to stop excluding "drag queens" from their premises. Our interpretation has been broadly accepted in both the public and the private sectors over the years, as demonstrated most vividly in the protracted court proceedings in the wake of the notorious Tyra Hunter case. Although the District government advanced several outrageous arguments undercutting the D.C. Human Rights Act during those proceedings, they never tried to argue that the law leaves transgendered persons unprotected.

While there appears to be a broad consensus on this interpretation, we agree with transgender advocates that adopting explicit language would remove any doubt that the law's protections extend to transgendered persons.

Allow me to illustrate with a hypothetical case. Under the current law, a prospective employer could discriminate against a transgendered person whom he (or she) had never seen, if he somehow learned that the applicant was transgendered. If that employer had never seen the person's appearance, he could hardly be accused of basing his decision on that appearance. As our colleagues in the ACLU of the National Capital Area observed in their letter on this bill, the prohibition against discrimination based on "sexual orientation" does not clearly apply to transgendered persons. Adding the phrase "gender identity or expression" fills the gap.

Second, the educational purpose. We have been told by Mr. Saunders of OHR that its educational posters cannot be modified to make it clear that the Human Rights Act protects transgendered persons, because the current law does not explicitly so state. While Bill 16-389 does not add the term "transgendered" to the law, the phrase "gender identity or expression" is the model language that transgender advocates seek to make standard in jurisdictions throughout the country. We defer to those advocates on this point. The educational purpose will be served not only by adding "gender identity or expression" to the District's own posters, but also by enabling those of us outside government who advocate transgender rights to cite the newly explicit language. Adoption of the model language will also make easier the job of those who track legal protections related to gender identity.

Third, the prophylactic purpose. The D.C. Human Rights Act is not only valuable in the courtroom and in cases before the Office of Human Rights and the Commission on Human Rights. It is also a tool for citizens and advocacy groups dealing with potential discriminators. There have been many occasions over the years when we or others have pointed out to employers and business owners that particular policies or actions were in violation of the Human Rights Act, and persuaded them to change those policies or actions without ever having to file a case. Adding the phrase "gender identity or expression" to the Human Rights Act enhances the role of independent watchdog groups like GLAA and our transgendered allies in preventing and ending discrimination through education and persuasion. The threat of litigation, or an implied threat of litigation, is sometimes enough to prevent the actual need for litigation.

Finally, an observation. The fight for equal rights and against discrimination does not happen all at once. It is a long struggle, as well as an educational process. Even those of us who have been in the vanguard of the fight for gay and lesbian rights have had much to learn about the struggles and challenges, the discrimination and the hatred and the violence, faced by our transgendered sisters and brothers. One piece of legislation can neither solve all those problems nor end all the ignorance and hatred. But this bill is a step along the road, and will give transgender advocates a sharper weapon in the fight that they do not have at present under District law. GLAA is proud to stand with them today.

Thank you. I would be happy to answer any questions you may have.

###

Addendum: Craig Howell offers these notes from the October 17 hearing on Bill 16-389:

"Ken Saunders' statement was excellent, going into some useful legal background and history. I've asked him to e-mail it to us so we can post it on our web site.

"Others testifying included Sadie Crabtree of the Coalition to Clarify the DC Human Rights Act; Derek Tripp of NGLTF; and several individual witnesses, including Irena Tran, Elijah Hobbs, and [frequent complainant] Michael Sindram. Orange had no questions for any of us except Sindram. [Editor's note: Sindram's complaints, which assert that he is discriminated against for being white, and which have repeatedly failed the "probable cause" standard, are unrelated to the subject of this hearing. Today he told Chairman Orange that Office of Human Rights Director Kenneth Saunders cannot be considered impartial in rejecting Sindram's allegations about racial discrimination, because Saunders is black.]

"Orange did say that he expects to have a committee markup of both this bill and the Office of Gay BLT Affairs either this month or next month.

"Mario Acosta [openly gay Human Rights Commissioner] was there to listen, and told me the Human Rights Commission's annual forum for World Human Rights Day in December will be dedicated to TG issues this year. It should be held on either December 7 or 8. He promised we would be notified once the details are ironed out."


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