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These talking points were adapted from Transgender Equality: A Handbook for Activists and Policymakers, and used in advocating for the successful Rhode Island transgender-inclusive non-discrimination bill.
1. Question: What Does This Legislation Do?
Answer: This legislation would prohibit discrimination in employment, lending, housing and public accommodations because of a person’s gender identity or expression. It would, in particular, make it impermissible to discriminate against an individual simply because that person does not fit a narrow stereotype of what it means to be a “real man” or a “real woman.”
2. Question: Why is this legislation needed?
Answer: Transgender people face serious discrimination, not only in the workplace, but also in housing, public accommodations and in lending transactions.
Many pre-operative and post-operative transsexuals are fired the moment their employers find out about their plan to undergo sex reassignment surgery or learn that they have already undergone such surgery.
Transgender people often face severe discrimination when we try to find a place to live.
- Many transgender and gender variant people are denied equal treatment in public accommodations. We are asked to leave restaurants, hotels, stores, medical facilities, and educational institutions. We are denied credit. We are refused access to restroom facilities.
Transgender people who cross-dress only outside the workplace live in fear that their employer will discover that fact and fire them.
- Our community should take a stand against this invidious gender-based discrimination. Everyone deserves to live and work with equality and dignity. No one should lose their job, or be denied a place to live, because of their gender identity or expression.
3. Question: Isn’t this kind of discrimination already illegal?
Answer: Despite recent court decisions to the contrary, many courts have found that laws prohibiting sex discrimination do not protect transgender people. Because of these old, unprincipled decisions, confusion abounds regarding whether or not transgender people are protected under the law. While there is no rational reason why transgender people should be excluded from protection under Rhode Island’s non-discrimination laws, there is no guarantee that courts will consistently interpret Rhode Island law in accordance with the most recent decisions.
Moreover, the purpose of laws is not merely to afford individuals a right to redress wrongs done to them, laws are intended to set policy and deliver clear messages. One important purpose of this law is to clarify that the scope of Rhode Island nondiscrimination law includes transgender people. In passing this law, the legislature is clarifying any misconception that may remain about whether or not our sex discrimination law protects transgender people.
4. Question: Doesn’t Rhode Island’s sexual orientation law already protect transgender people from discrimination?
Answer: First, sexual orientation as a legal concept is generally understood to refer only to whether a person is homosexual, heterosexual, or bisexual. And, as a practical matter, not all non-transgender people are straight and not all transgender people are gay. Many transgender identify as straight. For example, many transgender women have male partners and many transgender men have female partners. When transgender people face discrimination it often has no relationship to their sexual orientation.
Moreover, some courts have clearly said that sexual orientation laws do not prohibit discrimination because of a person’s gender identity or expression. For example, the United States Court of Appeals for the First Circuit (which hears cases from Rhode Island) has twice said that sexual orientation discrimination prohibitions do not extend to protect people who experience discrimination because of their gender identity or expression. See Higgins v. New Balance, 194 F.3d 252 (1st Cir. 1999); Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).
5. Question: Does this mean women will have to share bathrooms with men and vice-versa?
Answer: This law will prevent people from being force to use bathrooms that do not correspond to their gender identity. Like everyone else, transgender people need access to safe and dignified restroom facilities.
- Right now, in our community, there already are cases in which people are required to use bathrooms inappropriate to their gender identity – when trans women are forced to share bathrooms with men, or trans men are forced to share bathrooms with women because employers and providers of public accommodations do not have a sensible bathroom policy in place. This legislation will help resolve those awkward situations, not create them.
- Transgender people pose no special risk to others who are using a restroom. Legitimate safety concerns need to, of course, be addressed regardless of who poses them. Employers and public accommodations have an obligation to make restroom facilities safe for all people. However, we should not let legitimate safety concerns become a proxy for bias and prejudice against transgender people.
People expect privacy in restrooms. Nothing in this legislation would alter that reasonable expectation.
Ultimately, a rule which would bar transgender people from using the restroom that is consistent with their gender identity and expression is unworkable. Any criterion other than a person’s gender identity and expression as a basis for determining which restroom a person may use would set a dangerous precedent of allowing employers (and others) to ask and obtain personal and intrusive information which no one should have to share.
6. Question: Will this law encourage cross-dressing in the workplace?
Answer: There has been no “outbreak” of cross-dressing in the workplaces in the jurisdictions that have adopted similar anti-discrimination provisions. The City of Minneapolis has had a transgender-inclusive non-discrimination law since 1975, and there has been no influx of cross-dressers into the workplaces in that jurisdiction.
- Like non-transgender people, transgender people simply want to go to work in clothes that conform to their gender identity, clothes that they feel the most comfortable wearing.
- Nothing in this bill would prevent an employer from enforcing a written dress policy. This legislation simply means that employees may dress in the type of clothing that conforms to their gender identity.
- Many women already “cross-dress” in the workplace by wearing what used to be considered traditionally male clothing, such as pant suites. The case law is beginning to catch up with changing ideas about gender-based clothing; so should our human rights law.
Price Waterhouse, 490 U.S. 228 (1989)(an accounting firm engaged in prohibited sex discrimination when it denied partnership to a female employee who was told she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry”); Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000)(transgender plaintiff denied a loan because he was dressed insufficiently masculine could state a claim of sex discrimination); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)(transgender prisoner could bring claim under gender motivated violence act).
Holloway v. Arthur Anderson, 566 F.2d 649 (9th Cir. 1977)(transgender plaintiff fired for undergoing sex reassignment surgery not protected by sex discrimination laws because basis of discrimination was “change of sex” not sex); Ulane v Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984)(federal court held sex discrimination law does not protect “a person born with a male body who believes herself to be female”); Sommers v. Budget Mktg., 667 F.2d 748 (8th Cir. 1982)(same); Dobre v. Natl’ R.R. Passage Corp., 850 F. Supp. 284 (E.D. 1993)(transgender plaintiff excluded from bringing sex discrimination claim under state nondiscrimination law).