In recent weeks, I've heard and read quite a bit about the gay rights legislation Congress is currently considering. It's piqued my interest because it's put Democratic Senator Ted Kennedy in bad stead with some long-time allies. That said, I ventured out to find someone who has a more thorough understanding of the impending bill and gay rights issues. Please read on...
Senator Kennedy, of Massachusetts, introduced legislation into the Senate that would extend federal employment non-discrimination laws to gay, lesbian and bisexual Americans. Twenty states, the District of Columbia and a whole host of local and city governments already hold similar laws. This move comes after the U.S. House passed similar legislation written by openly gay representative, Barney Frank, another Democrat from Massachusetts.
But wait a second, GLB…? Something’s missing! Ah, that hard consonant T that punctuates this amorphous queer catchall. Both of these bills leave out Transgender individuals, i.e., all Americans whose gender identity does not match the simple Male or Female designation assigned at birth after a brief glance at their outward genitalia. These people classify themselves with this identity for a multitude of reasons. Some are genetically neither male nor female (Chromosomally they can be XXY, XYY, XXX, X). This is as common as 1 in 1,000 births. Other individuals believe that there outward sexual organs do not correspond with the sex they know they are. Many of these will work to rectify this problem, through dressing styles, using hormone therapy and surgery until their outward appearance matches the sex they feel they are. Still, another group does not agree with the masculine and feminine binary gender roles. They see this, along with biological sex distinction, as a fluid spectrum with a multitude of gender roles and sex distinctions in which we can move freely. Think, just a hundred years ago, a woman wearing pants would be seen as a sexual pervert and could be arrested for posing as a man. But these fluid gender roles have changed, allowing women to freely wear pants, jeans and a whole host of two legged garments.
There is a lot of fighting and bickering within the gay community that the most invisible of their brethren are getting the shaft with this exclusive legislation. Both sides draw parallels to previous struggles for civil rights within the United States.
Who can forget Elizabeth Cady Stanton’s, Susan B Anthony’s and the other Suffragettes’ frustration when they spent decades of their life to struggling for abolition. When these White women succeeded in helping end slavery, they assumed that this movement’s momentum would turn to their fight for equality and the right to vote. But prominent abolitionist leaders, both black and white, told them, not now, this is not your struggle.
Who can forget Bayard Rustin, architect of the 1963 Civil Rights March on Washington and Martin Luther King Jr.’s right hand man. When this openly gay black man implored Dr. King to use this energy to start a struggle for gay rights, Dr. King told him not now. More than “not now,” Rustin was forced into the shadows to become a silent partner in this civil rights struggle.
Yes, through hindsight, we can see the error in these actions, but before we are too judgmental, we must understand the context. Abolition had built itself by showing the savage nature of slavery, and thus was able to get the sympathy of such a large amount of Americans. Compared to this, the struggles of middle class white women were seen as frivolous. (“Why would a woman want to vote, she’s just going to vote for whom her husband tells her.”) With the civil rights struggle, Dr. King used the Christian moral context in the US to garner sympathy. Conservatives knew this tactic so tried to Rustin’s homosexuality to undermine this. An undercover FBI agent stooped so low as to take a picture of Rustin reviewing the day’s events next to King in a bath tub. The agent tried to use this to prove an affair between Rustin and King. To save the Christian sympathy of the movement, Bayard Rustin was forced into the shadows, destroying all hopes to address homosexuality in the civil rights struggle.
Senator Kennedy believes that it is already and uphill battle to get the sixty votes in Senate to stop Republicans from tacking on all sorts of undesirable provisions to this GLB bill. With the slim chance that this will pass, President Bush has already promised a veto. His reasoning is that this will infringe upon the freedom of speech of individuals, organizations and churches.
To give a parallel for this argument, Bob Jones University, that ivory tower of Southern Fundamentalist education, agreed to allow black students to enroll only in 1975. With this, the university made a law prohibiting interracial dating on campus. The IRS stepped in and retroactively revoked the University’s tax exempt status for not comply with civil rights clauses protecting against such discrimination among organizations receiving tax benefits or other government support. This is a fascinating case that went all the way to the Supreme Court, BJU (come on, BJ… U?) argued that it met all other tax exempt criteria, but that the school’s policy was based on religious beliefs that “God intended segregation of the races and that the Scriptures forbid interracial marriage. ” Newly-minted President Ronald Reagan tried to have the case dropped in 1982, but political pressure forced him to reinstate the case. The Supreme Court decided against the University, forcing BJU (giggles) to repay millions of dollars in taxes. BJU kept the policy and forfeited their non-profit status until 2000, when the policy dropped amid media uproar during a visit by then presidential candidate George W. Bush.
With his veto, Bush wishes to stir fear about a vast gay conspiracy that will silence and censor anyone or any church that would try to speak out against behavior that is ‘sinful.’ Keep in mind that this same Christian Bible is vehemently pro-slavery, anti-Jew and anti-Women. Huh, interesting that not too many Americans hear aggressively racist and misogynistic rhetoric at their Churches on Sunday mornings anymore. Times and temperaments have changed. These churches are still free to preach what they wish, they have the freedom of speech to do so, but they would no longer have the ability to claim coveted tax exemption status, which is keeping many churches in the high price, hot ticket real estate locations.
Is this the end of the argument? Should transgender advocates and allies just grumble about this unfair exclusion? Should a bill that is a pipe dream and likely to be vetoed become the ax to splinter the gay rights movement? Hells NO! Like I tell my lovely Lesbian roommate when she returns from a radical feminist book reading and roller-skating convention: “Can you PLEASE think outside the BOX?”
In this instance, Transgender advocates are falling into the typical political pitfall, assuming that their rights can only be gained through popular vote or legislative action. But it wasn’t the popular will of the people who brought down Jim Crow Segregation; it was a little girl from Kansas and all nine justices of the Supreme Court.
For Transgender advocates, their savoir may come in the form of a twenty-five-year veteran of the US Army and aspiring librarian, Diane Schroer. Diane had applied for and accepted a position with the Library of Congress to be the Senior Terrorism Research Analyst. Right before beginning the position, she took her boss out to lunch and casually mentioned that she was in the process of transitioning the outward appearance of her sex and that it might be better for everyone if, when she started the job, she was referred to as female and by the name Diane. The next day, Diane was called, told she wasn’t ‘a good fit’ and fired. She brought her claim to the ACLU who then formulated a suit against the Library of Congress. The lawsuit charges that the Library of Congress unlawfully refused to hire Schroer in violation of the Title VII of the Civil Rights Act, which protects against sex discrimination.
The Library of Congress moved to dismiss the case, claiming that this Title VII does not protect Transgender individuals. The District Court ruled to dismiss the claims of the Library of Congress and continue forward with Schroer’s discrimination case. The court noted that sex may not be a cut and dry matter of chromosomes and that there are many "factual complexities that underlie human sexual identity. These complexities stem from real variations in how the different components of biological sexuality -- chromosomal, gonadal, hormonal, and neurological -- interact with each other, and in turn, with social, psychological, and legal conceptions of gender. " Title VII also deals with perception of sex and conforming to sexual gender roles. Title VII has been used in the past to protect women who are deemed to be ‘too masculine’ and men who are deemed to be ‘too feminine.’ The court noted that "Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer." This case is still in the process, so please go to the ACLU’s website to support Diane Schroer’s case click here. I encourage each of you help with this case however you can.
Gender roles are a fluid and dynamic. The courts are beginning to realize this reality. As this continues, this has the possibility to give Transgender individuals more legal protections. But don’t think for an instant that Transgender people have an easier battle towards equality. One must only remember 15 year-old Lawrence King who two months ago was tragically shot by a student in his junior high school for coming to school dressed ‘effeminately.’ The majority of transgender people are still listed as mentally ill by the American Psychiatric Association, which labels these individuals as suffering from Gender Identity Disorder. To the Transgender community and allies, we need to fight this psychiatric label, we need to find loopholes and we need to think outside of the box!
Kevin M. has more than 10 years of gay experience, learning by living as a sexual minority in, DC and . He has spent two years working at a GLBT health center, working along side, under and for the betterment of gay, lesbian, bisexual and transgender individuals.