Our Accelerating Civil Rights Movement

Originally appeared in Transgender Tapestry #105, Spring 2004.

by Lisa Mottet

We now have four states ...and more than 60 cities and counties with transgender protections clearly written into the law.

It has been an amazing two years in transgender civil rights! At the beginning of 2002, only 6.5% of the country (by population) was covered by anti-discrimination law with language clearly covering the transgender community. Two years later, we find ourselves with more than 24% of the country covered. Wow!
We now have four states (California, New Mexico, Minnesota, and Rhode Island) and more than 60 cities and counties with transgender protections clearly written into the law.
Will 2004 result in another doubling of the number of people covered by anti-discrimination law? Unlikely. Sexual orientation protections cover about 45% of the country, and it doesn?t seem likely we will surpass them anytime soon. No matter, many activists are working all over the country, and we?re going to come much closer to catching up.

What happened in 2002 and 2003?

Before 2002, the highest number of laws our movement passed in one year was six. In 2002 alone, fifteen local anti-discrimination laws passed! In 2003,
thirteen laws passed (eleven local, two statewide). And there may be more that weren?t reported.
No one is quite sure why our efforts to pass legislation all of a sudden took off in 2002 and 2003. Certainly, momentum is running in our favor?as more and more cities and states pass laws, it gets easier. It was easier to argue in San Diego for passing a law when Boston, Philadelphia, New York City, and Chicago had already done it the year before. And each local law makes it easier to pass a state law.
I feel very fortunate that I get to be involved in so many of these legislative battles.
Because I?m lucky enough to work
on this from the national level, I have noticed some interesting trends.

It?s playing well in Peoria

In 2003, Peoria became the ninth jurisdiction in Illinois to pass a trans-inclusive law. One of the most amazing aspects to these laws is that they are passing in unexpected places. Covington, Kentucky passed a law this year. El Paso, Texas did as well. Erie County, Allentown, and Scranton, Pennsylvania all passed laws in the last two years.

Lop-sided votes, in our favor

Another exciting fact is about margins by which we are winning votes. 2002 was impressive; more than half the time there were either zero or only one no votes. If you add up all the yeas and nays for 2002, the collective vote is 207 yes and 28 no. That?s one comfortable margin!
In 2003, it gets even better. Eight of the eleven local laws passing passed unanimously! That includes Covington, Kentucky, with a vote of 5-0. The collective vote for 2003 (excluding statewide bills) was 78 yeas and 5 nays. Those voting no might be starting to feel lonely.

Large cities are signing on fast

This trend is less surprising. Many of the larger cities have liberal reputations, and it surprises few when they finally pass trans protections. Many of the victories in the last two years have been large cities adding transgender-protections to laws that had sexual orientation in them for many years before. Examples include Baltimore (sexual orientation since 1988); Boston (since 1984); Chicago (since 1988); Philadelphia (since 1982), New York City (since 1986); and San Diego (since 1990). At this point, the three most populous cities in the U.S. are covered by a law. Six of the top ten have coverage, and 13 of the top 25. Eight of these 13 were passed in the last two years. The largest cities without laws are Houston (#4), Phoenix (#6), San Antonio (#9), and Detroit (#10).

Half transgender-only, half transgender-inclusive sexual orientation efforts

About half of the laws passed in the last two years added gender identity or expression at the same time as sexual orientation and about half were adding gender identity/expression to already existing laws. For both types of efforts, there are several instances where the drive for passage of the law was led by gay activists, not transgender activists. While most efforts to add gender identity or expression were led by transgender activists, nearly all relied heavily on the connections and influence of the larger lesbian, gay, and bisexual community. The commitment of gay allies to passage of trans legislation is dramatically increasing each year. Unlike years past, transgender-inclusive laws were much more common than those that passed with sexual orientation only.

Other victories

Not all legislative and anti-discrimination victories took the shape of anti-
discrimination bills. In the last two years, we have gone from four transgender-inclusive statewide hate crimes laws to seven. New Mexico and Pennsylvania passed sexual orientation and gender identity/expression protections simultaneously, while Hawai`i added gender identity/expression protections to an already existing law. Pennsylvania?s law passed despite seemingly unfavorable conditions; the state had at the time a Republican-controlled House and Senate and a Republican governor. The seven states that currently have trans-inclusive hate crimes law are California, Hawai`i, New Mexico, Minnesota, Missouri, Pennsylvania, and Vermont.

New Jersey passed a safe schools bill in 2002. This is particularly uplifting because the bill, as originally introduced, didn?t include gender identity or expression. The Gender Rights Advocacy Association of New Jersey decided to make changing that bill its first legislative project. After some targeted lobbying and gathering of support of allied groups, the sponsors of the bill amended the bill in both the Senate and Assembly education committees. The bill passed 74-0 in the Assembly and 38-0 in the Senate and became law in September of 2002. A unanimous vote!

Governors in two states signed executive orders protecting transgendered people in 2003. Outgoing Governor Paul Patton of Kentucky signed an order protecting both sexual orientation and gender identity. In Pennsylvania, newly-elected Governor Ed Rendell signed an executive order specifically adding gender identity or expression to the already existing protections of sexual orientation and other characteristics. We would have three states with this coverage; however Iowa?s inclusive executive order, signed several years ago by Tom Vilsack, was challenged in a court case as beyond the governor?s authority and is no longer in effect.

What?s in store for 2004?

Efforts are starting and continuing in many places. Although the backlash against same-sex marriage is draining many of the resources of the LGBT community, some efforts are still forging ahead. On the state level, there are some good prospects. With strong support of Governor Blagojevich, leaders in Illinois are hopeful they may join the list of states with both sexual orientation and gender identity protections this year. Washington State?s bill to protect all lesbian, gay, bisexual, and transgender people from discrimination finally passed the state House last year, and activists hope it may get through the Senate this year. In New Jersey, the Gender Rights Advocacy Association of New Jersey is considering introducing a bill to add gender identity or expression to the state?s Law Against Discrimination. Transgender leaders from Connecticut are hoping the bill to add gender identity or expression to the hate crimes law will get out of committee and possibly pass this year.

On the local level, efforts are underway to pass transgender-specific or inclusive protections in Athens-Clarke County, GA; Austin, TX; Berkeley, CA; Beaverton, OR; Louisville, KY (required to re-pass their law by a merged county-city government structure); Miami Beach, FL; Salt Lake City, UT; and other places.

Are Federal protections on the horizon?

With all the success on local and
state levels, one might wonder whether these successes will affect our chances
for passing a law on the federal level.
For years, the transgender community has tried to revise the Employment Non-Discrimination Act, which, if passed as
is, would cover only sexual orientation discrimination. That bill has been reintroduced every two years since it was introduced in Congress?s 1993-1994 Session.
Hope for changing that bill has increased over the last few years as more states have passed laws. We now have four states with explicit protections for trans people. Our 24% of the country being covered is getting a lot closer to sexual orientation?s 45% coverage. Yet,
we are still behind the number of states that have sexual orientation protections (14 total), and that continues to pose a problem. There is a pressing need for states that have passed sexual orientation to add gender identity/expression protections.

Having more states with explicit
protections is very important on the
federal level because the main resistance of the sponsors of ENDA to changing the language seems to be their political, not substantive, concerns. The fact that the transgender movement is 10 states behind the gay movement is used as proof that transgender rights are not as politically feasible. Where there is no state law, each city that has sexual orientation but not gender identity or expression is also considered proof of political infeasibility. Working to change these laws at the local and state level has an enormous federal impact.

Some gay and transgender activists are unsure whether or not adding gender identity/expression is important in their state because their state has a good court decision or decision by state enforcement agency that says that gender/sex and/or disability protections cover transgender people in that state. This includes Connecticut, Hawai`i, Massachusetts, New Jersey, and New York. There are good reasons to pass laws in these states anyway.

The first reason I believe it?s important to codify those decisions by adding explicit coverage in the law is that clear language in the law should increase compliance of employers and other entities subject to the law in that state. Employers probably don?t know these good decisions exist and most likely believe they are free to discriminate because they don?t do detailed legal research on what ?sex? has been interpreted to mean. If a law were to be passed to make transgender protections clear, an employer would be able to simply look at the law or brochures and posters about the law?s coverage and know that anti-transgender discrimination is prohibited for sure.

The second reason it?s important
to pass these laws in all of the 10 states
is that it really will affect whether the federal bill will include transgender people.
Almost every single national LGBT rights organization worked together in 2003 to try to convince the sponsors to change the bill before its introduction for the 2003-2004 Session. This includes the Human Rights Campaign, which in previous years didn?t advocate for the bill language to change. Ultimately, the sponsors said no and the bill was introduced without trans-inclusive language in October 2003. The fight over transgender inclusion delayed the bill?s introduction, which typically would have happened much closer to January. We?re stuck with this non-inclusive bill through the rest of this Congressional session, which will end in December of 2004.

In 2005, however, the push will happen again. Transgender activists are pushing national LGBT rights organizations to accept only a transgender-
inclusive ENDA and to refuse to support ENDA without transgender protections. Last year, about half the national LGBT rights organizations took this position. Taking the no-compromise position will be critical to changing the fate of the bill in 2005.

Winning the culture war

Ultimately, we are all in a battle to change the culture of the United States and the world to accept and honor all transgender people. Certainly, fighting for legislative change is one important tactic. The more these laws pass, the more good people of this country will realize discrimination is morally wrong. However, there are so many other ways
to be a transgender activist or ally. Educational work and helping to cause policy change with colleges, high schools, religious communities, health professionals, community groups, homeless shelters and other social service agencies is important work. So is being a part of support networks in your community and giving individuals hope and guidance. Together, we are all making the world a better place for us and those
who come after us.

Lisa Mottet serves as the Legislative Lawyer
for the Transgender Civil Rights Project of the National Gay and Lesbian Task Force.
She provides assistance to activists working
to pass local, state, and federal anti-
discrimination legislation that protects
people based on gender identity or expression.
To receive assistance from the Transgender
Civil Rights Project of the Task Force, email
Lisa Mottet at: lmottet@thetaskforce.org
or call: (202) 639-6308.