GLAA raises First Amendment concerns on draft rulemaking for transgender protections
GAY AND LESBIAN ACTIVISTS ALLIANCE OF WASHINGTON
Fighting for Equal Rights Since 1971
P. O. Box 75265
Washington, D.C. 20013
May 10, 2006
Cornelius R. Alexander, Jr., Esq.
D.C. Commission on Human Rights
One Judiciary Square
441 4th Street, N.W.
Washington, D.C. 20001
Thank you for sharing the Commission's draft regulations regarding gender identity or expression. Please distribute these comments to each of the Commissioners and to anyone attending the May 11 meeting. Bob Summersgill and I plan to attend that meeting and participate in the discussion; unfortunately, Craig Howell will be unable to attend.
We have grave problems with much of the draft. Accordingly, we urge the Commission to return these proposed regulations to you and other Commission staffers for further review. We also encourage the Commission to release any subsequent drafts, with an explicit invitation for public comment, before taking any formal action.
We are startled by what appears to be a disregard for free speech and the First Amendment throughout the draft regulations. The regulations would outlaw pure speech by declaring it an "unlawful discriminatory practice" for any employer, landlord, rental or sales agent, place of public accommodation, or educational institution to refer to or address a transgender person by the wrong pronoun. Even failure of any of these parties to suppress improper pronouns by others would be considered as the unlawful creation of a hostile environment.
Such breathtaking overreaching is counterproductive, unconstitutional, and likely to cause the courts or the Congress to intervene.
It is not unlawful sex discrimination to address or refer to a woman as "Miss" or "Mrs.," even if she wants to be referred to as "Ms." It is not unlawful religious discrimination to address a minister as "Rev." even if he or she demands to be called "Bishop" instead. It is not even unlawful sexual orientation discrimination to refer to gay men and lesbians as "sodomites." None of us, minorities or otherwise, are empowered by civil rights laws to dictate how others who disagree with us must speak or think.
How could transgender persons and their supporters even begin educating the general public on a one-to-one basis if such a legal weapon hangs over every conversation, threatening to bludgeon anyone who dares to utter an inappropriate term, pronoun or sentiment?
We shudder to think of the field day the Religious Right could enjoy if the proposed anti-speech regulations were officially adopted and promulgated by the Commission. Draping themselves in the unaccustomed mantle of the First Amendment, demagogues on Capitol Hill would love to cut off funding to implement any and all regulations on transgender discrimination.
Section 802.1 opens the door to abuse. Apparently because of a reluctance to allow any standard at all for identifying transgendered persons other than their own voluntary self-disclosure and identity or expression, this draft provision evidently makes any and all fraud concerning an applicant's sex (including cases having nothing to do with transgendered persons) perfectly okay.
We also have concerns about Section 805, "Gender-Specific Facilities with Unavoidable Nudity," essentially requiring health clubs and such places to allow anyone claiming transgender status to use whatever locker room they want. This section would allow anyone to walk into the locker room of their choice, as long as they claim they are using the locker room consistent with their gender identity, without any documentation of their gender identity.
Frankly, we doubt any such section is necessary at all. We suggest deleting this entire section, letting the Commission or the courts balance the competing interests whenever a transgender person actually feels aggrieved enough to file a complaint or lawsuit.
We are also not comfortable with the proposed regulations regarding restroom access. As with Section 805, these provisions would allow anyone to use the restroom of either sex as long as they claim they are using the restroom appropriate to their gender identity, again without any documentation. We would strongly recommend consultation with the D.C. Rape Crisis Center and similar groups before proceeding.
Going beyond what is in the proposed regulations, we must point out what is missing. In particular, we see no recognition that the D.C. Government is as fully bound by the provisions of the DC Human Rights Act (including those regarding gender identity or expression) as the private sector is. Coverage of D.C. Government departments and agencies was explicitly incorporated into DCHRA several years ago, thanks to legislation introduced by Councilmember Jim Graham. (See Section 2-1402.73.) Since the District's transgendered residents have been discriminated against in so many ways over the years by our own government, that oversight is as glaring as it is puzzling.
In earlier comments to the Commission, I suggested a solution to the problem of people's driver licenses indicating a sex in conflict with their gender identity. My suggested solution involved their attesting to their gender identity (either by means of a notarized statement or by signing a form), so that there is documentation on file with DMV. There also may be a need to change the reference to "sex" on the driver licenses to "gender," which in most people's cases will make no difference but would make a significant difference for transgendered people. If the regulations remain as written, with their apparent prohibition of any requirement of proof, it would be problematic to simply apply them to the government, which in issuing legal identification surely has a legitimate reason to require some sort of proof or signed attestation.
We are aware of the discrimination that transgendered people encounter in a variety of situations, having received many troubling reports over the years -- which is why we supported the Human Rights Clarification Amendment Act. As advocates for GLBT rights, we have often stressed in response to our opponents that we seek equal rights, not special rights. Accordingly, we are eager to avoid an undoubtedly well-intentioned overreach in the rulemaking on the new law, in particular the evident disregard for the First Amendment. The regulations are likelier to withstand public and congressional scrutiny if they are more carefully drafted.
Best wishes, and we hope to see you tomorrow.
Richard J. Rosendall
Vice President for Political Affairs