Office of Human Rights endorses transgender protections
OFFICE OF HUMAN RIGHTS
TESTIMONY BEFORE THE DISTRICT OF COLUMBIA CITY COUNCIL COMMITTEE ON GOVERNMENT OPERATIONS
October 17, 2005
CHAIRMAN ORANGE, COUNCILMEMBER GRAHAM AND MEMBERS OF THE COMMITTEE ON GOVERNMENTAL OPERATIONS. MY NAME IS KENNETH L. SAUNDERS AND I AM THE DIRECTOR OF THE OFFICE OF HUMAN RIGHTS FOR THE DISTRICT OF COLUMBIA. I GREATLY APPRECIATE THE OPPORTUNITY TO APPEAR BEFORE YOU TODAY TO DISCUSS THE HUMAN RIGHTS CLARIFICATION ACT OF 2005.
- As you know, the DC Office of Human Rights is an agency of the District of Columbia government that seeks to eradicate discrimination, increase equal opportunity, and protect human rights in the city.
- Presently, the Human Rights Act has 16 protected categories to including sex, sexual orientation, and personal appearance.
- The Office of Human Rights and the Human Rights Commission engaged in many conversations regarding the need to have the Human Rights Act ("the Act") amended to include more than just those 16 categories or definitions. We identified the need for protection of individuals on the basis of gender identity or expression. Such protection would be extended to transgender and transsexual individuals.
- Although some groups believe that such discrimination may fall under the "personal appearance" provision of the Act, this amendment would clarify it's meaning to include gender identity and expression. After reviewing the "personal appearance" provision of the Act, I conclude that the current definition of "personal appearance" would not cover all transgender individuals, particularly transsexuals. Hence, the Office of Human Rights supports this amendment to the Act would provide protection to all individuals who seek protection in gender identity or expression.
- Under some schools of thought (or definitions), an individual who is transgender is someone who lives full-time in a social role not typically associated with their natal sex, but who did not resort to genital surgery as a means of supporting their gender presentation.
- By contrast, a transsexual is a person with a variant gender identity in which there is an incongruity between a person's external genitalia and his or her psychological sense of gender. Transsexuals are sometimes defined as individuals who seek to undergo (or have undergone) the transition from their birth sex to that of the opposite sex, usually by means of gender reassignment therapy or surgery.
- One study has reported that sixty percent of these individuals (the transgender and transsexual population) have no income or very little income due to massive employment discrimination. Consequently, an amendment would put employers (as well as housing providers, educational institutions, and places of public accommodation) on notice that discrimination against transgender and gender variant individuals is illegal in the District of Columbia.
- Currently 62 cities, 10 counties and 5 states have anti-discrimination laws that are explicitly transgender-inclusive.
- Major cities such as Atlanta, Baltimore, Los Angles, New York, Philadelphia and San Francisco have gender identity or expression protected under a separate protected class or within the meaning of sexual orientation.
- For instance, Los Angeles City Municipal Code, Ch. IV (Public Welfare), Art. 12 as amended states:
Sexual Orientation shall mean an individuals having or manifesting an emotional or physical attachment to another consenting adult person or persons, or having or manifesting a preference for such attachment, or having a self-image not associated with one's biological maleness or one's biological femaleness. (Emphasis added)
- This legislation protects transgender similar to a personal appearance provision.
- San Francisco's municipal ordinance defines gender identity as:
A person's various individual attribute as they are understood to be masculine and or feminine.
- By contrast, San Francisco's municipal definition of sex means the character of being male or female.
- New York City's Administrative code (Title 8) protects gender identity and expression within its 2002 amendment that states:
- Gender shall include actual or perceived sex and shall also include a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self image, appearance behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.
- Finally, Philadelphia's City Ordinance (Fair Practices, Title 9) defines gender identity as:
Self-perception, or perception by others, as male or female, and shall include a person's appearance, behavior, or physical characteristics, that may be in accord with, or opposed to, one's physical anatomy, chromosomal sex, or sex assigned as birth; and shall include, but is not limited to, persons who are undergoing or have completed sex reassignment.
- As noted earlier, the District of Columbia, the Human Rights Act does not have gender identity or expression specifically mentioned within any of its protected classes. The Act, however, has personal appearance as one of its protected classes. Personal appearance is defined as " the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress. "
- Arguably from this definition, a transgender person would be covered because his or her outward appearance, notwithstanding sex or style of dress, would come within the meaning of the definition. As an example, a biological male who self identifies as a female (dress in female clothing) but has not undergone any surgery could arguably file a claim under the act if any employment or housing decision was based on his look and dress (outward appearance).
- While a strong case may be made that personal appearance would include gender identity for transgender individuals, it should be noted that the Human Rights Commission nor the D.C. Court of Appeals have ever ruled on such an issue.
- The only reported decision in the District of Columbia involves the case of Underwood v. Archer Management Services, Inc., 857 F. Supp. 96 (D. DC 1994). Underwood involves a claim for which the defendant motioned the court to dismiss a transsexual's claim of unlawful employment discrimination under the Human Rights Act on the basis of sex, sexual orientation and personal appearance.
- The Court dismissed the claim on the basis that her cause of action did not come under the sex and sexual orientation provisions of the act but the cause of action could go forward on the basis of personal appearance.
- At first blush, this ruling appears to state that gender discrimination may come under the personal appearance provision of the Act, however I caution any reliance on this ruling. The Underwood Court is a Federal District Court interpreting a provision of a local statute that has never been ruled by the local courts. Furthermore, the court in Underwood never reached the merits of the case. Hence, the precedent value of such a ruling is very low.
- In addition to the low precedent value of Underwood interpreting the Act, the personal appearance provision would not reach transsexuals, particularly those individuals are in the middle of gender reassignment. Hence, a biological male who is in the process of having surgery to be a female may still sound like a male. Any employment decision or housing decision by an employer or housing provider may not be based on the "outward appearance" of the individual but on other characteristics. In such cases, a person may not have a cause of action. For this reason, a clarification of the Act is needed.
- During the last legislative period, Councilmember David Catania introduced Bill B15-1083 "Human Rights Law Amendment Act of 2004" which would prohibit discrimination based on gender identity or expression. This bill would add gender identity or expression as a separate protected class under the Human Rights Act. It defined gender identity as:
Having or being perceived as having a gender-related self-identity or expression whether or not such gender-related characteristics are stereotypically associated with a person's actual or perceived sex.
- But, we find the present language in the Clarification Act to be clear, succinct and covers a broad universe of individuals. By expanding sexual orientation to "sexual orientation, gender identity or expression and giving it such a concise definition removes any ambiguity and unquestionably puts the District on notice to this protection.
I am available to answer questions regarding this testimony. Thanks again for this opportunity.