ACLU echoes GLAA's First Amendment concerns on draft rulemaking for transgender protections
American Civil Liberties Union of the National Capital Area
1400 20th Street, NW, Suite 119
Washington, DC 20036-5920
May 11, 2006
Cornelius R. Alexander, Jr., Esq.
D.C. Commission on Human Rights
Re: Compliance Rules and Regulations Regarding Gender Identity or Expression
Dear Mr. Alexander:
The ACLU of the National Capital Area believes that the draft Rules and Regulations are seriously flawed, and urges the Commission not to proceed with their publication at this time. Instead, the Commission should request additional input from interested organizations and then hold a public hearing on a revised draft.
We received a copy of the draft only yesterday, and are not prepared to provide the Commission detailed comments in time for this evening’s meeting. At this time, we would highlight the following two concerns:
The draft appropriately makes harassment of persons because of actual or perceived gender identity or expression unlawful. But it then would make certain kinds of speech per se unlawful harassment, e.g., “deliberately misusing of an individual’s preferred name form of address or pronoun” (§ 808.2(a)). This limitation on speech and the other per se violations of § 808.2 raise serious First Amendment problems.
We are also concerned about the possibilities for abuse created by § 805, Gender-Specific Facilities with Unavoidable Nudity. Because that section applies to “cross-dressers” , it might not adequately protect the privacy interests of others who use such facilities.
We would be pleased to work with you and other interested parties in addressing our concerns.
Thank you for providing our comments to Commission members in time for this evening’s meeting.
Stephen M. Block
 See the definition of “Transgender” in § 899.