GLAA objects to proposed rollback of transgender protections
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GLAA objects to proposed rollback of transgender protections

See July 22 Addendum by Rick Rosendall

Gay and Lesbian Activists Alliance of Washington, DC
”Fighting for equal rights since 1971”
P.O. Box 75265
Washington, D.C. 20013

Monday, July 21, 2008

Alexis Taylor, General Counsel
D.C. Office of Human Rights
441 4th Street, NW, Suite 570 North
Washington, DC 20001

Dear Ms. Taylor:

We are responding to the Notice of Proposed Rulemaking published in the District of Columbia Register on July 11, 2008 concerning intent by the D.C. Office of Human Rights (OHR) and the D.C. Commission on Human Rights (CHR) to amend Chapter 8 of Title 4 of DCMR governing the “Gender Identity or Expression” provision of the D.C. Human Rights Act of 1977 (DCHRA).

GLAA strongly opposes the proposed changes, except for the privacy-related provisions in the proposed new Subparagraph 805.3. In our view, the bulk of the proposal amounts to a gratuitous attempt to selectively repeal (or severely restrict) the law via rulemaking. The Human Rights Clarification Amendment Act of 2005, which added “gender identity or expression” to the categories protected from discrimination by DCHRA, won unanimous passage by the D.C. Council. On October 17, 2005, when GLAA submitted testimony endorsing the bill, the Office of Human Rights submitted testimony giving its own strong endorsement. After the bill became law the following year, The D.C. Commission on Human Rights adopted a rulemaking deliberately giving the new provision a clear and strong interpretation as intended by the Council. Indeed, as the bill’s title indicated, it was written and passed not to create new policy but to clarify existing D.C. policy—that is, to make explicit in the law, by means of model language already adopted by many other jurisdictions, the District’s determination to protect transgender people from discrimination.

The proposed new Subsections 801.3 and 801.4 would essentially exempt the D.C. Department of Corrections (DOC) from having to obey the Human Rights Act as it applies to transgender detainees and prisoners. DOC has already rejected out-of-hand the suggested protocols offered by members of the DC Trans Coalition on how to handle the housing of transgender people in DOC custody. Most of the detainees and prisoners in question are in that situation because of the counterproductive and cruel criminalization of survival sex to which many of them have resorted because of the difficulty they have encountered obtaining safer employment. Survival sex already increases their risk of substance abuse, physical and mental abuse, sexually transmitted diseases and violent crime, and jailing them only adds to their problems rather than addressing them. Placing them in isolation because of DOC’s refusal to make reasonable accommodation for them is intolerable.

On April 4, 2008, D.C. Inspector General Charles J. Willoughby issued a Management Alert Report stating that DOC’s policy regarding inmate gender identification “seems to be in conflict with and may violate District human rights regulations, may increase the risk of harassment and assault against certain inmates, and may put the District government at risk for legal liability.” Now, instead of complying with those regulations, the administration simply plans to change them. Far from eliminating the problem, this attempt at repeal by interpretation adds insult to injury.

Corrections officials should not be permitted to use claims of business necessity or of a lack of precedent to evade complying with the law. The Human Rights Clarification Amendment Act is a reflection of the fact that our society is changing to become more just; and the District is not alone. The Associated Press reported on June 19 that, under a policy that took effect March 17, “Transgender youth in New York’s juvenile detention centers can now wear whatever uniform they choose, be called by whatever name they want and ask for special housing under a new anti-discrimination policy that advocacy groups say is among the nation’s most progressive.” If changing corrections policies to conform to the District’s own progressive law is challenging, District officials should rise to the challenge rather than retreat from it.

The proposed rulemaking would repeal Subsection 802.2 of Chapter 8, which states, “All entities covered under the Act with single-occupancy restroom facilities shall use gender-neutral signage for those facilities (for example, by replacing signs that indicate ‘Men’ and ‘Women’ with signs that say ‘Restroom’).” We demand to know what is conceivably wrong or burdensome about this provision that it should be repealed. The privacy issue is not even present in the case of a single-occupancy restroom.

We have seen in the discrimination case brought by former Fire/EMS Department employee Kenda Kirby that she faced discrimination by the Department over her use of a restroom designated for her gender. Harassment stories like that one were part of the reason the Human Rights Clarification Amendment Act was introduced in the first place. How can there be controversy over a provision that single-occupancy restrooms should have a gender-neutral designation? Please withdraw this assault upon a perfectly reasonable provision.

We have no objection to the privacy features specified in the proposed new Subsection 805.3, although that language could be added to Subsection 805.2 instead of creating a separate subsection. Privacy has been raised as a significant concern by our transgender colleagues.

The proposed new Subsection 806.5 would require that identification badges for D.C. government employees “state the employee’s legal name, as documented by the Department of Human Resources. The name affixed on the badge shall be changed after the employee provides proof of a formal name change through a court of competent jurisdiction.” First of all, we would like to say that the federal REAL ID Act is problematic enough in its disparate impact on transgender people without the District of Columbia getting in on the act. The impulse, which has accelerated under the Bush Administration, to treat everyone as a fraud until and unless he or she can prove otherwise, entirely ignores the extra burden this places upon transgender people.

Our fellow citizens whose gender identity or expression does not match the sex they were assigned at birth are already disproportionately impoverished and underemployed as a result of discrimination. We have heard many stories over the years of transgender people facing harassment and worse from law enforcement officers as a result of their legal ID not matching their gender expression. Again, this was one of the problems that prompted the introduction and passage of the Human Rights Clarification Amendment Act of 2005. Requiring transgender people to go to court for a formal name change solves no demonstrated problem, is unduly burdensome, and violates the intent of DCHRA.

The burden of proof properly rests with those who would narrow or weaken the scope and force of any DCHRA protections. We have thus far seen no justification for these proposed changes, much less a compelling one. At a meeting with the DC Trans Coalition on July 15, Department of Corrections officials fooled no one when they pretended not to have seen the Proposed Rulemaking prior to that morning. There is a joke that the unofficial slogan of the federal government is, “If it ain’t broke, break it.” We urge OHR and CHR not to embrace this philosophy. Most of the Proposed Rulemaking is a solution in search of a problem. DCHRA is the strongest human rights law in the country; we are eager to keep it that way and to ensure that it is not transformed by administrative contrivance into a paper tiger.


Barrett L. Brick

cc: Mayor Adrian Fenty
Acting Attorney General Peter J. Nickles
D.C. Council members
Christopher Dyer
DC Prisoners’ Project
DC Trans Coalition
Helping Individual Prostitutes Survive
Human Rights Campaign
National Center for Transgender Equality
National Gay and Lesbian Task Force
Parents, Families and Friends of Lesbians and Gays (PFLAG) National
Transgender Health Empowerment

July 22 Addendum by Rick Rosendall

From: Richard J. Rosendall
Sent: Tuesday, July 22, 2008 1:35 PM
Cc:;;;;;;; Philip Fornaci;;; Christopher Edelson; Mara Keisling; Lisa Mottet; Rhodes Perry;; Brian Watson; Jeri Hughes
Subject: GLAA objects to proposed rollback of transgender protections

Dear Ms. Taylor:

Below is an electronic copy of the letter I hand-delivered to you this morning on behalf of GLAA President Barrett Brick. In addition to the letter, please add this note to GLAA’s official comments on the proposed rulemaking regarding DCMR Title 4 Chapter 8.

I appreciated the opportunity, thanks to the initiative of activist Jeri Hughes in requesting this morning’s meeting, to discuss our concerns about the proposed rulemaking with you, OHR Director Gustavo Velasquez and other staff. It was gratifying that we were joined by so many advocates for transgender rights who shared their personal stories and specialized expertise, including representatives from DC Prisoners’ Project, DC Trans Coalition, Helping Individual Prostitutes Survive (HIPS), National Center for Transgender Equality (NCTE), National Gay and Lesbian Task Force, Parents, Families and Friends of Lesbians and Gays (PFLAG) National, and Transgender Health Empowerment.

Regarding the proposed new Subsections 801.3 and 801.4, which would effectively exempt the D.C. Department of Corrections (DOC) from the D.C. Human Rights Act (DCHRA) as it applies to transgender detainees and prisoners, we are aware that DOC cited reasons of “safety and security” to justify the need for the proposed exemption. As I said at this morning’s meeting, there needs to be actual, specific evidence of such safety and security problems and not mere rhetoric or hypothetical cases. The fact that DOC has not tried to comply with DCHRA’s provisions on gender identity or expression, and is averse to changing from its current practice of using genitalia for to determine gender rather than a detainee’s claimed gender identity, is not a good reason to exempt DOC from complying with the law. As Mara Keisling of NCTE said, the D.C. Government should not rely upon stereotypes about pre-op or non-op transgender women in forming and implementing policy. Fears about a transwoman’s penis posing a threat to other women are unfounded. If there is substantial evidence to support the security fears, let it be presented. But the government should not allow some people’s unfamiliarity and ignorance to trump the clear intent of the District’s law, which is avowedly and deliberately stronger in its protections for transgender people than most jurisdictions in the country. We and our allies are ready to help with the education that is necessary, and to work with DOC officials to devise practical solutions. Putting through an exemption for DOC now would short-circuit those efforts rather than further them.

Thank you for your consideration.

Rick Rosendall
VP for Political Affairs

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