I blogged about the possibility of HB2 becoming an important campaign issue right after the law was enacted. Sure enough, North Carolina is becoming a swing state in this Presidential election. The efforts of the Governor Pat McCrory (R) and the Republican legislature to make transgender bathroom access a campaign issue may not only backfire on themselves, it may be the straw that shifts the electoral balance in favor of Hillary Clinton. Nationally, Republicans can thank McCrory and his McCronies for that unwanted present to open on election day.
At a recent campaign stop in North Carolina, candidate Clinton stated: “The very mean-spirited, wrong-headed decision by your legislature and governor to pass and sign House Bill 2 has hurt this state. But more than that, it’s hurt people. It has sent a message to so many people that says; ‘You know, you’re not really wanted. You’re not really part of us.’ I think the American dream is big enough for everybody.”
The Republican strategy of casting off minorities instead of embracing them has led to an uphill battle in the Electoral College and the demographics are only going to get worse. Sure, transgender people are a minority, and to be sure, some such as Caitlyn Jenner will continue to support Republican causes, but if transgender people vote on the issues that most directly impact them, then the continued Republican drumbeat against transgender rights will guarantee yet another, albeit small, voting bloc will with the D instead of the R. Eventually even small losses add to big ones. It is time for Republicans to get off the anti-transgender train because human rights should be a given and there are other very important issues to address.
We have hopefully moved beyond casting a white man in black face to play an African American or in face paint to play a Native American. The egregiousness of miscasting, as exemplified by Hollywood actually casting John Wayne cast as Genghis Khan seems silly to us today. Perhaps we will someday look upon the casting of cisgender actors in transgender roles the same way in the future. Hollywood and smaller film producers should seek to rectify this practice as soon as possible. The fact that there are few well known transgender actors speaks to the lack of roles and opportunity. Transgender actors are not even cast in minor roles, preventing them from gaining experience and exposure. Remember Audrey Hepburn started as a cigarette vendor, so even a “bit part” can lead to opportunities. The film industry can help by writing transgender characters into normal roles, such as “the girl next door, the shop owner, the assistant scientist, or the “co-worker.” Transgender roles need not be limited to stereotypes such as “prostitute #3 or drag queen performer.” By doing this, Hollywood can continue its long history of social activism and make a positive change in the lives of many transgender people. In the same way African Americans gained hope by seeing Nichelle Nichols on the bridge of the USS Enterprise in Star Trek, thousands of transgender people will take heart in seeing a transgender actor in a respectable role in television or the movies.
In what may be an ironic and karmic twist of fate, Hillary Clinton may just have the American Family Association and North Carolina Governor Pat McCrory to thank for a victory in November. In a move of massive miscalculation, McCrory decided to wage war on transgender people in the form of the HB2 “Bathroom Bill” in an effort to create a wedge issue to defeat his democratic opponent, the State’s Attorney General Roy Cooper. The calculus was that by picking on a marginal group such as transgender people and denying them the right to use a public bathroom; that he could stir up his base on a social issue, rake in campaign donations, and get supporters to the polls. He, and the American Family Association (AFA), massively misjudged the response and were bewilderedly beleaguered by an onslaught of negative press both nationally and internationally. This condemnation was most visibly demonstrated by the NBA pulling its all-star game from the state, specifically due to HB2. Economic loss to the state as a result of HB2 is currently estimated to be in the billions. McCrory, a sitting Governor, is currently behind his opponent in the polls and likely to lose his seat in the Governor’s mansion, specifically because he tried to steal toilet seats from transgender people. In a sense, he quite literally flushed his re-election down the sewer. As the Presidential race draws down to its final month, North Carolina looks to join the swing state club with Ohio and Florida, as a prime determinant of who wins the White House. If the Republicans lose North Carolina’s electoral votes to the Democrats, then the mathematics for a Trump victory in the fall look exceeding bleak. The HB2 debacle started by the AFA and Governor McCrory may ironically mean that Hillary Clinton gets to pick the next three to four judges on the U.S. Supreme Court, effectively sounding the death knell for everything the AFA and Governor McCrory profess to stand for. As they say, pick your battles wisely. Governor McCrory and the AFA chose poorly. Apparently the transgender community wasn’t as acquiescent, nor, as helpless as he and the AFA thought. Let that be a lesson.
Transgender Bathroom Access and the Risk of Lawsuits
Jenni Contrisciani, MBA
According to a UCLA Law School study, there are approximately 700,000 transgender individuals in the United States. The U.S. Department of Labor’s Bureau of Labor Statistics estimates that approximately 59% of the US population is employed. The Human Rights campaign estimates a 14% unemployment rate for transgender workers, approximately double that for the national average. Assuming an equivalent age distribution of transgender individuals and accounting for increased unemployment means there are roughly 400,000 transgender employees in the United States. Statistica.com puts the number of Americans currently employed as 122.47 million people, so approximately one out of 306 employees are transgendered. If you filled the University of Michigan football stadium with workers (115,000) 375 of them would be transgender. Given rampant underemployment in the transgender community this figure may only be two thirds of this number in professional work place settings, however this still represents 200 people in the University of Michigan stadium example, and 264,000 people nationally.
Recent EEOC and court cases have clearly stated that transgender individuals must have access to the restrooms of the gender in which they identify. The Federal Government has issued clear directives to its departments and agencies to this effect. Companies that do not have a transgender restroom policy are at risk of lawsuits by employees, with the accompanying risk of monetary damages. Companies with identified transgender employees must have clear restroom policies adopted and published. Given that many transgender individuals are closeted, but may come out at any time and publicly assert they are transgender, means that even companies that do not have identified transgender employees need restroom policies.
The transgender community is well connected through social media, and aware of recent court cases. The “coming out” of celebrities such as Bruce/Caitlyn Jenner and Navy SEAL Christopher/Kristin Beck have raised the likelihood of transgender individuals openly identifying as their true gender and demanding equal rights under Federal EEOC guidelines and court precedent. Therefore a prudent employer needs to establish a transgender restroom policy.
But what about my other employees, employers will ask? The women in my company won’t be happy with “men” in their restroom! If existing experience is any indication, this will be a concern that will need to be addressed in your company. You may need training to both enact a transgender restroom policy and keep your employees happy. There are several key points to emphasize. Just as there are transgender women, who were or are, genetically male, there are also transgender men who are/were genetically female. Transgender men can appear with beards and well developed musculature. A transgender man in the women’s room would probably be more disturbing to women than a transgender woman, who dresses as a woman. Without a transgender restroom policy, forcing employees to use the restroom of their genetic gender may result in masculine transgender men in the women’s room, and transgender women wearing dresses, high heels in the men’s room and applying make-up at the sink.
Second, as with any restroom situation, the company must state that it will police any inappropriate behavior. While there have been no documented cases of transwomen acting inappropriately in women’s restrooms, the red herring of sexual perversion and inappropriate behavior is often raised. In addition to reassuring employees that there have been no cases of inappropriate behavior in restrooms documented to date, company policy is still in effect if there ever was.
Third, most modern restrooms contain a sink area and individual stalls. Aside from shoe size, there really isn’t any way to discern a transgender woman versus a genetic woman in the stall next door, assuming proper sit-down behavior by the transwoman. Even so, there is privacy in bathroom stalls. If necessary, stalls can be further privatized to reassure any individual.
Fourth, it should be addressed that transgender people are desperately wanting to blend in with the gender of their choice, so the only interaction a genetic woman would likely have with a transwoman in the restroom would be if she asked her at the sink how she learned how to do her makeup so well. Again, there have been no incidences of abnormal behavior in professional settings or the multiple school settings where transgender individuals are allowed to use the restroom of their gender identity.
Of course, change is hard and employees may come with very fixed and predetermined viewpoints. This is where training can be effective in dispelling many of the myths and misperceptions of transgender individuals. Not only can you more likely retain a talented transgender employee, but a well stated and public restroom policy may attract talented transgender individuals.
If you do not have a policy in place currently, it would be wise to do so and would demonstrate foresight and fiscal responsibility to do so.
Jenni Contrisciani, MBA
Amendments to Executive Orders 11478 & 11246
On Monday July 21, 2014 President Obama signed an Executive Order extending protections to transgendered Federal employees, adding onto the LGB protections already afforded during the Clinton Administration, and also extended LGBT protections to all Federal contractors. Given the amount of services and goods bought by the Federal Government, this Executive Order will have a significant effect on private industry. Conservative religious leaders instantly raised religious based objections to the Order citing the recent Supreme Court decision in the Hobby Lobby case. (See previous blog on that topic.) However, it is unlikely that those opposed to LGBT rights will find the argument as easily won in a future Supreme Court case because the justices will have to factor in the corollary religious effects of a ruling against the Executive Order. The Hobby Lobby decision supported religious freedom centered around a very powerful belief based on one of the Ten Commandments: thou shalt not kill. Once a baby is conceived, it takes discrete deliberate action to terminate it before it is born. A large portion of our population has this belief, and it is strongly held. However, the Ten Commandments say nothing specifically about LGBT issues. References to homosexuality and transgendered status are in Biblical texts that also speak of stoning for adultery, prohibiting the eating of pork, and not shaving one’s forelocks. Thus upholding religious freedom to not observe the Executive Order would have to apply to all other biblical (and Koranic, and Talmudic, and Mormon texts) that are equivalent in their level of condemnation or punishment. This would be a far too broad interpretation that would open nearly every Federal law or statute to a religious exemption. It would be a big stretch for constitutionalist judges to make. Therefore it is likely that the executive Order will stand and LGBT people will see an increase in the legal protections afforded them against employment based discrimination.
How an Assassin and a Racist Helped Further Transgender Rights…
This year is the 50th anniversary of the passage of the Civil Rights bill, which was the basis for the Macy V. Eric Holder decision where the EEOC ruled in favor of Macy, saying that discrimination based on someone changing their gender is a form of sex stereotyping under Title VII of the Civil Rights Act of 1964.
Originally, “sex” was not part of the Civil Rights Act, which focused primarily on rights for black Americans. In an effort to torpedo the bill, Rep Howard Smith, D-VA, then chairman of the House of Representatives rules committee, added the term “sex” to follow religion to the original Act language. Smith, a racist and active segregationist, hoped that adding language relating to women’s rights would increase opposition to the bill from misogynistic House members. In general, House members hoping to stop the Act supported the amendment, while those in favor of the Act generally voted against it. The debate over the “sex” amendment was short and filled with dismissive and joking comments regarding the status of women and gender. At the end of the debate, the amendment passed by a narrow margin, 168 to 133. Some researchers such as Freeman attribute passage to the National Women’s Organization, however their lobbying ability would have been described as “weak as best.”
Passage of the bill looked unlikely, however the assassination of President Kennedy served as the emotional lever that his very skilled and ruthless successor, Lyndon B. Johnson, used to force the Civil Rights Act through Congress. Citing opposition to the Act as an action dishonoring the slain President, Johnson was able to get a positive vote. Had Kennedy not been killed by an assassin, it is very possible that the Act would not have been passed in 1964. While the tide of history would have ultimately produced some variant of the Civil Rights Act with a provision preventing discrimination based on sex (gender) it was these two unlikely events that combined to produce what would eventually culminate in the Macy V. Holder decision and president Obama’s executive order preventing transgender discrimination in the Federal government. History works in strange and unlikely ways.