Summersgill critiques transgender rulemaking
August 6, 2008
Alexis Taylor, General Counsel
D.C. Office of Human Rights
441 4th Street, NW, Suite 570 North
Washington, DC 20001
Dear Ms. Taylor:
Please accept this as official comments in response 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).
As pointed out by numerous other people and groups, the proposed rulemaking is morally wrong, inconsistent with the purpose and the letter of the Human Rights Act, a violation of the purpose of the Office of Human Rights and the Commission on Human Rights, a violation of the right of Ms. Jeri Hughes to have a fair hearing in her case, and a shameful betrayal of the Fenty Administration of the public trust and of the gay, lesbian, bisexual, and transgender communities in particular.
The purpose of the Human Rights Act states, “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.” [D.C. Code § 2-1401.01]
The D.C. Council has repeatedly and unanimously made clear that violations of human rights are not to be tolerated. The District can be very proud of the strength and scope of the Human Rights Act and the vigor with which it has been defended.
The proposed rulemaking seeks to undo that legacy and the Council’s intention by limiting the law by crudely carving out exceptions. The Fenty administration is using the Office of Human Rights to promulgate this offense; making the OHR no longer the advocate of the law, but rather its detractor. The Administration is further attempting to use the Commission on Human Rights to provide a veneer of legitimacy to the withering of our rights.
There may be legitimate reasons to step back from some overbroad human rights protections—such as violations of the First Amendment—but the Fenty Administration has not bothered to provide any justification for the proposed rulemaking.
Paragraph A is a naked power play to short-circuit Jeri Hughes’ complaint and to undermine the efforts of the D.C. Trans Coalition to make the D.C. jails safer and reduce the epidemic of rape and abuse of transgender inmates. The Department of Corrections needs to focus on making the jails safe, secure, and orderly, and end the focus on gender-role enforcement. The response to violations of human rights by the D.C. Government should be to correct the situation through appropriate disciplinary actions and policy changes, not repealing inconvenient laws.
Paragraph B is a move by the Office of Human Rights to remove the duty of having to notify businesses of their legal obligations, and then enforce the law. The signing requirement is trivial from a business perspective. Enforcement, if the OHR is unable or unwilling to do it, could be done in conjunction with the Department of Health and other agencies which make routine inspections and could add this as another check-off box. If more funds are needed, the OHR can request it. They have not.
The most frequent problem raised by transgender people in my experience is which bathroom may be used. New transgender people in town ask about restroom laws first. Gutting this provision undermines the essence of the Human Right Act. As noted by the ACLU, this also would undermine the disproportionate need of women for restroom access.
Paragraph C does not seem to undermine basic rights, but there does not seem to be any need for it, and it is suspect by being included in the proposal.
Paragraph D is an attempt to enforce gender-roles in the guise of security while actually undermining security. My legal first name is “Robert.” I use the name “Bob.” Having an ID with a name that I do not use, does not make us any safer, it actually makes us less safe by focusing on legality, and not on the name that I actually use and how people know me. It makes no difference if my nickname is Bob, Moose, or Tiffany.
The Fenty Administration’s actions to limit our rights might be seen as a legitimate effort to deal with a real problem if they had contacted anyone from the affected communities in advance. No effort was made to discuss the issue, or even alert the groups who took part in shaping the law or the regulations. Further it is disappointing that no one on the Human Rights Commission itself felt any need to alert the community. We had to learn about it by reading the D..C. Register.
I strongly urge the Commission to reject the Proposed Rulemaking.