Hughes comments on proposed rulemaking on transgender protections
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Hughes comments on proposed rulemaking on transgender protections


G.A. Hughes
July 21, 2008

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

Ms. Taylor:

I am 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).

I am in strong opposition to the proposed amendment. It serves no purpose, other than to legitimize discrimination in regards to transgender individuals held in the custody of the District government. As written, the proposed amendment is blatantly offensive, improper, and contrary to law. Frankly, I am extremely disturbed and puzzled why the DC Office of Human Rights - an Office staffed by individuals dedicated to protecting the rights and dignity of minority populations - would attach their name to such an amendment. It is a blemish on the record and integrity of the entire organization.

In regards to the proposed amendment to Section 801:

A. Section 801 is amended by adding new subsections 801.3 and 801.4 to read as follows:

801.3 Nothing in this chapter shall require an agency of the District of Columbia government to classify, house, or provide access to gender-specific facilities to transgender individuals according to their gender identity or expression if the transgender individual is incarcerated, institutionalized, or otherwise within the District’s custody. A District agency may make reasonable inquiry to determine whether an individual in custody is transgender.

801.4 Classification and assignment for transgender individuals within District government custody shall be based on, among other things, the safety and security of the transgender individual, the needs of the facility, and the safety and security of the other individuals in the facility to which the transgender person is assigned.

This proposed amendment is in violation of Title 2, Chapter 14, and the Human Rights District of Columbia Code. There is no clause or section that provides special privilege to any District of Columbia agencies to discriminate against any protected class. The intent of the Council is clear throughout the document:

§ 2-1401.01. Intent of Council.
It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business.

In addition, Title 2 Chapter 14 specifies:

§ 2-1402.73 Application to the District Government.

Except as otherwise provided for by District law or when otherwise lawfully and reasonably permitted, it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual’s actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, or place of residence or business.

Clearly the proposed sections 801.3 and 801.4 single out transgender individuals for special and negative treatment regarding access to gender specific facilities, classification, and assignment. In effect, these proposed sections would allow for and facilitate the continued discrimination and abuse of the transgender population within a correctional or custodial setting. Correctional facilities have the right and authority to restrict rights and privilege to all in their custody. Should they also be allowed to discriminate against prisoners based solely on that prisoner’s status as a member of a minority population? Prisoner rights are not the issue at hand. In this instance, the proposed amendment removes transgender individuals from rights and treatment allowed and provided to the other prisoners.

The precedent such rulemaking would set has dark implications; in the future, would discrimination against other protected minorities in a correctional setting be permitted?

This is not the intent of Council and is in clear violation of Title 2 Chapter 14.

The process of the Office of Human Rights proposing amendments to District of Columbia Municipal Regulations in regard to Title 2 Chapter 14 states:

§ 2-1403.01. Powers of Office and Commission; annual report by Mayor.

(c) The Office and the Commission may make, issue, adopt, promulgate, amend, and rescind such rules and procedures as they deem necessary to effectuate and which are not in conflict with, the provisions of this chapter. Such rules and procedures and amendments thereto shall be adopted and promulgated in accordance with procedures promulgated pursuant to the D.C. Administrative Procedure Act (2-501. et seq.).

Clearly, the proposed amendment is in conflict with the provisions of Chapter 14. The intent of Council specifically states the desire to eliminate discrimination - not to legitimize it. By proposing this amendment to the DCMR, the Office of Human Rights has abandoned the mission for which it was created – to secure an end to unlawful discrimination in employment, housing, public accommodations, and educational institutions for any reason other than that of individual merit. By proposing this amendment, the OHR has over stepped the boundaries of authority provided by § 2-1403.01.

For the above reasons, I would respectfully submit that the proposed amendment be immediately withdrawn.

I also oppose, and question the intent and purpose of, the proposed repeal of Subsection 802.2.

802.2 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”.

This section provides access to safe and neutral restroom facilities to transitioning transgender individuals, but is also advantageous to everyone in the general public. If only one single occupancy restroom is available, the rule allows for members of all genders to use the facility. If there are two single occupancy restrooms, and one restroom is occupied, it allows for all genders to have access to the remaining restroom.

Restroom facilities remain a sore issue for the transgender community. It is a remarkable circumstance that would deny an individual the right to relieve themselves in a public accommodation provided for that purpose, and yet this circumstance occurs on a regular basis to those who are transgender - especially for those who are in the early stages of gender transition.

There has never, to my considerable knowledge on the subject, been an incident of overt sexuality or exhibitionism performed by a transgender person in a public restroom. Section 802.2 recognizes that transgender individuals are extremely self conscious, respectful, and sensitive to the perceptions of the general public, and serves as an affirmative action measure to remove potential conflict.

I would accordingly recommend and urge the OHR to maintain Section 802.2 intact in its entirety.

Transgender individuals generally respect and appreciate privacy to a degree that is probably much greater than that of the general public. For that reason, I see no cause to object to the proposed addition of the subject matter proposed in the new Subsection 805.3, other than to observe that it would be more appropriate to add the language to Subsection 805.2. Subsection 805.3 would remain unchanged. I have attached the language in the amended version of Subsection 805.2 below:

805.2 In gender-specific facilities where nudity in the presence of other people is customary, entities covered by the Act shall make reasonable accommodations to allow an individual access to and the use of the facility that is consistent with that individual’s gender identity or expression, regardless of whether the individual has provided identification or other documentation of their gender identity or expression. Reasonable accommodations may include, but shall not be limited to, shower dividers, private or individual shower rooms, or other measures that promote the privacy of the individuals. (amended version)

I am also opposed to the addition of 806.5.

This rule would prove burdensome to the general public, and in some cases confusing. In an instance, “Chou Lie” Sakamoto might be known and called John by his associates. Aloysius Percival D’Amato might very well prefer to be referred to as Al, and still not wish to legally change the name given by his parents. To refer to such an individual by his legal name – after reading it off a name tag – would almost certainly be cause for confusion. Legal names and aliases are generally included as a part of employment application requirements. Human Resources has ready access to these legal names. There is no more reason to advertise these names on a badge than to post an individuals social security number or health conditions publicly.

In the case of many transgender individuals – a vast majority of whom are already marginalized by the discrimination and bigotry that exist within our society - the posting of their legal name on a badge would only cause embarrassment and confusion. As an example, although I myself am commonly referred to as Jeri Hughes, if employed by the District I would be forced to wear a badge stating “Gerald Anthony Hughes.” If you referred to me by that name, not even my close friends would know to whom you were referring.

The fact that this particular amendment is being initiated by the OHR in the DCMR for Gender Identity and Expression is a cause for concern. As a member of a community that has until recently been denied the most basic right to even exist, and that still experiences severely restricted employment and educational opportunities, I have had enough of the ignorance, intolerance, and bigotry that exists within our society. I would like to believe that the Office of Human Rights – an organization created for the purpose of eliminating discrimination - would expend their energy to promote regulations that would provide relief from the discrimination instead of dreaming up ways to make my life more embarrassing or difficult.

The Office of the Inspector General stated in his Management Alert that the Department of Corrections was almost certainly violating the Human Rights Act and the guidelines set forth by Title 4 chapter 8 in the DCMR. The DC Trans Coalition made a good faith attempt to provide guidance and direction in correcting the infractions. The DOC responded by proposing a memorandum that would further strip transgender prisoners of the basic rights provided to other prisoners. I personally filed a complaint with the Office of Human Rights because the proposed memorandum was in direct contradiction to the intent and specific language set forth in Title 2 Chapter 14 of the DC Code, as well as Title 4 Chapter 8 of the DCMR. In response, rules have been proposed that would not end discrimination, but solely allow for discrimination to be legitimized within a custodial or correctional setting.

This legalization will not address the issues; the discrimination and injustice will be served to thrive. The message is clear – transgender people just don’t count. They are too different. We have to be able to discriminate against them. I beg to differ.

The problems within the DOC can be amicably resolved without creating legislation that will deny rights to the transgender community. The Office of Human rights has failed to mediate or propose negotiations. Title 2 Chapter 14 of the DC Code § 2-1403.04, Filing of complaints and mediation, states:

(c) A mediation program shall be established and all complaints shall be mediated before the Office commences a full investigation. During the mediation the parties shall discuss the issues of the complaint in an effort to reach an agreement that satisfies the interests of all concerned parties. The Office shall grant the parties up to 45 days within which to mediate a complaint. If an agreement is reached during the mediation process, the terms of the agreement shall control resolution of the complaint. If an agreement is not reached, the Office shall proceed with an investigation of the complaint.

To my knowledge, the respondent party (the DC DOC) has made no attempt to negotiate and the OHR has made no attempt to mediate. As far as an investigation, it has already been established by the Inspector General that the DOC stands in violation. Even though I am the formal complainant in this matter, I was not personally informed of the decision of the OHR to propose an amendment directly relating to my complaint. This is worse than bad faith. It borders on subterfuge.

I am highly disappointed with the course of events. I have the greatest respect for Director Velasquez of the OHR and Director Brown of the DOC. They are exemplary leaders and experts in their respective fields. Problems do exist. This is not an issue of financial gain; nor is it an issue of additional rights for prisoners. It is a demand for equity for a marginalized community – nothing more. The problems that exist cannot and will not be resolved solely with legislation. A Decision and Order would likely prove equally ineffective. The problems of discrimination against transgender prisoners will only be resolved with communication and a real and concerted effort of everyone involved. For this reason, I respectfully request that the proposed amendment be withdrawn, and that efforts at mediation commence immediately.

Respectfully Submitted,

Jeri Hughes

CC: Mr. Gustavo Velasquez, Director, Office of Human Rights


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