GLAA raises First Amendment concerns on rulemaking for transgender protections
GAY AND LESBIAN ACTIVISTS ALLIANCE
Fighting for Equal Rights Since 1971
P. O. Box 75265
Washington, D.C. 20013
July 10, 2006
D.C. Commission on Human Rights
441 4th Street, N.W.
Washington, D.C. 20001
Dear Mr. Alexander:
On behalf of the Gay and Lesbian Activists Alliance of Washington (GLAA), I would like to submit the following comments on the “Notice of Proposed Rulemaking” for Chapter 8, “Compliance Rules and Regulations Regarding Gender Identity and Expression,” as published in the June 9 issue of the D.C. Register.
We are gratified that the Commission has accepted our earlier recommendation to amend the original draft regulations to recognize that the D.C. Government itself is obliged not to discriminate on the basis of gender identity or expression.
However, we are concerned that some of our other recommendations have not yet been heeded. In particular, we are very disturbed that Section 808, “Harassment and Hostile Environment,” continues to reflect an antagonism towards the First Amendment’s guarantees of freedom of speech.
The assault on free speech reflected in the original draft regulations was a major focus of our May 10 letter to you. My colleagues Rick Rosendall and Bob Summersgill voiced similar objections at the Commission’s May 11 meeting that was devoted to reviewing that draft. There was widespread consensus in the room that evening that the draft language was inappropriate, with few if any voices raised in its defense.
We are therefore startled to see that Section 808 merely pours this old wine into a new bottle, now relabeled “sexual harassment.”
This will not stand. Either Congress or the courts will make sure of that.
The ACLU has cited a number of recent federal court rulings striking down similar attempts to penalize mere speech in the name of preventing “sexual harassment” and “hostile work environments.” As the Third Circuit ruled in the 2001 Saxe case, “there is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” We commend to your attention the ACLU’s comprehensive analysis of relevant case law included in their submission on the proposed rulemaking today, which they were kind enough to share with us in advance. Their proposed rewrite of Section 808.2 follows the EEOC’s guidelines on determining what constitute sexual harassment in the workplace. The ACLU rewrite properly emphasizes gathering evidence on the “totality of circumstances” in a workplace, rather than making mere speech presumptive proof of guilt, as the proposed Section 808.2 would do.
Unfortunately, we realize there are some within our own GLBT community who are openly contemptuous of the First Amendment when it protects homophobic and transphobic speech, and we fear the Commission has been overly deferential to their perspectives. As sexual minorities, we understand our community’s extreme vulnerability if free speech may be curtailed whenever others deem it offensive.
We also wish to reiterate some points we made on other issues in our recommendations last May.
- We believe it is unworkable to allow no standard at all for identifying transgendered persons beyond their own voluntary self-disclosure. The absence
of any proof or documentation would open the door for fraud and abuse, even in cases having nothing to do with transgendered persons.
- Section 805, “Gender-Specific Facilities with Unavoidable Nudity,” would allow anyone, transgendered or not, to walk into the locker room of their
choice, without any documentation of their gender identity. We believe it would be more prudent to let the Commission and the courts balance the
competing interests when actual cases arise.
- We are similarly uncomfortable with Section 802.1 regarding access to restroom facilities. As with Section 805, this proposed language would allow
anyone, transgendered or not, to use the restroom of either sex, without any documentation of actual transgendered status.
- We repeat our recommended solution to the problem of those with driver’s licenses indicating a sex in conflict with their gender identity, which would allow transgendered persons to submit attestations of gender identity to the DMV. This solution would be pre-empted by the proposed ban on proof or documentation of gender identity.
GLAA has been fighting for equal rights for transgendered residents since our founding in the early 1970s. We fought to protect them against the kind of unlawful discrimination prohibited by the “personal appearance” clause of the original D.C. Human Rights Act, and we were delighted that those protections were spelled out more explicitly in the Human Rights Clarification Amendment Act. But we now must safeguard against overreach in the ensuing rulemaking, in particular the evident disregard for the First Amendment. The regulations will be likelier to withstand public, congressional and judicial scrutiny if they are more carefully drafted.
Thank you for your attention.
Barrett L. Brick
Cc: Deborah Dorsey, Chair, Commission on Human Rights
Kenneth Saunders, Director, Office of Human Rights
Robert Spagnoletti, Attorney General of the District of Columbia
Art Spitzer, ACLU