Its nice to see that my previous post about what is currently having to pass for ‘the ENDA bill’ – namely, quotes about what certain people claim the still-unseen2010 version of the 2009 bill will and will not do – is getting some mileage.
Remember, the actual disturbing parts are not – or at least should not have been viewed as being (that means you St. Mara) – my analysis, but what Roll Call quotes St. Barney as saying:
Frank said that he is optimistic about the vote count and that transgender protections will remain in the bill.“There’s no chance of doing it without it,” he said of the transgender protections.
Frank said he’s told wavering Democrats that “the principle is the same. It’s discrimination.”
He said concessions were made in the drafting of the language to address moderates’ concerns. For instance, Frank said, transgender people with “one set of genitals” would not be able to go to a bathroom for people with another set of genitals.
And, Frank said, they also would have to have a “consistent gender presentation” in order to be able to sue for discrimination.
“They can’t sit there with a full beard and a dress,” Frank said.
Hey, folks – that’s Roll Call, not me.
My response to what they’ve attributed to St. Barney (which, whether anyone likes it or not, is pretty much exactly in line with what his attitude has been toward trans existence as long as he’s been willing to lower himself to even speak about the possibility of inclusion) – a quite reasonable response in light of what the Minnesota Supreme Court did to the first trans-inclusive state gay rights law in Goins v. West Group – was to bring up the reality of genital inspectors….
Which, whether anyone is willing to admit it or not (or dare I say – to step out of Neo-Oz?), is not simply the logical result of the standard attributed to St. Barney in that Roll Call item but, in reality, the only way that such a law would pass ‘arbitrary and capricious’ muster.
Naturally, the Rhode Island Avenue Cesspool’s Steppin’ Swishit, Meghan Stabler, has fallen all over herself yet again to defend the indefensible, posting on a Facebook thread:
Please! This so bogus, there will not be “genital police”. Name your “sources” and confirm that they have “seen the language”.
Please name the “sources” and confirm that they have “seen the language”.
YOU show US the language – and not simply of the bill, but of the post-enactment administrative regulations (which doubtlessly have already been drafted.)
Now, there was a conference call this evening regarding the bill – whose actual language (not the introduced language of HR 3017 that can be found on Thomas) again still seems to be forbidden knowledge. I could have gotten in on it, but didn’t sign up (I had plans, but they didn’t pan out.) Ryan Blackhawke did some great reportage, however, and I’m quoting from what he has up on his Facebook wall:
HR3017 exactly like it was when introduced in March/April at this point. Orgs asking for “tweaking” of language.No one knows what language will be. Up to committee chairman. Won’t see language until scheduled for action.In current ENDA, facilities language – employers don’t have to let us use proper facilities but they can’t force us to use wrong ones. Mara’s impression is employees not allowed to sue about bathrooms as long as employers not letting us use wrong one, must let us use unoccupied correct bathroom.Currently, employers can force us to use wrong bathroom so anything in this section will be a gain. Not a single person will lose bathroom rights they have under ENDA.
Well, here’s existing language from HR 3017 from Thomas:
(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
(4) ADDITIONAL FACILITIES NOT REQUIRED – Nothing in this Act shall be construed to require the construction of new or additional facilities.
Folks, that’s a loophole buffet worthy of the ‘You Bet Your Career and Life on Mara Keisling’s Credibility’ Casino (currently operating out of the trunk of a 1975 Olds Omega parked down by the river.)
Now, back to Ryan’s non-transcript, transcript:
If employer forces you to use single-use, they can’t be sued. If they force you to hang a sign when using multi-stall bathroom, you can’t sue.…Mara: Can’t make us use wrong bathroom. Can they bar us from using multi-stall restroom? Yes. Sticking point.
Job protections or full bathroom protections? We could get job protections and partial bathroom rights.
Most trans people willing to put up with this in order to keep roof over their head, stay employed.
Now, here’s where the Barneymaramonese-ism caves in on itself. Again, quoting what Ryan heard:
Is there language for employer inspections of genitals? Absolutely not. If there were, NCTE would pull support. People need to be more responsible in their speculation (Mara).
Well Keisling, I think the trans community should have been more responsible in allowing you to say one word to anyone on behalf of anyone other than yourself.
Translated: We should have taped your mouth shut (metaphorically, of course; no one wants your precious little sensibilities to think that any physicalness is aimed at you or anyone or anything near you as we all know how you tend to make things like that up about people in order to maintain your own standing via exclusion) years ago.
If there’s language that in any way sets up or allows any manner of a standard based on genitals, then there’s language that ultimately allows for employers (or white-coated people on the company payroll or acting at the company’s behest) to inspect genitals!
Yes, here I’m using “inspect” broadly – but I’m also employing Logic 101.
Ever had your genitals verbally inspected?
Have you simply been asked?
Again: If there is some form of standard under which genital configuration is a demarcation line, someone is going to have the authority to ascertain on which side of that demarcation line employee ‘ X’ is to be filed.
Lets look at another exchange that Ryan shared:
Q: if employer lets transwoman uses proper restroom and other employees complain, what can employer do? Cave to ppl who object or continue to allow transwoman to use proper restroom?
A: Too bad for the co-worker. Co-worker can find some other place to pee if they don’t like it.
Now that actually appears to be accurate (based on the end result of the Cruzan case).
Q: employers actions during transgender person transitioning – illegal to ask someone which genitals they have?A: (Lisa Mottet) – Corporate attorneys will most likely tell employers they can’t ask under sexual harassment laws.
Cruzan was the anti-equality case brought by a religionist against a school that had the nerve to allow a trans woman to walk the same halls and – gasp! – use the same restrooms as the religionist. The Eighth Circuit Court of Appeals told her where to get off.
However, the ultimate result was that it was all in the employer’s hands: the employer allowed the trans woman to use the appropriate restroom; it didn’t violate the religionist’s rights, but it also wasn’t necessarily the right of the trans woman either.
That evisceration of the Minnesota Human Rights Act was the result of Goins v. West Group. From Outfront Minnesota’s summary of the case:
In November, 2001, the Minnesota Supreme Court ruled in a case called Goins v. West Group (635 N.W.2d 717 (Minn. 2001)) that an employer could legally assign restrooms based on an employee’s physical anatomy. The court held that this was a distinction based on sex, not on sexual orientation/gender identity. In particular, the court held that the employer could require an employee it believed to be anatomically male to use the men’s restroom, regardless of the fact that the employee lived and worked full-time as a woman.
The Goins decision leaves intact the fundamental protections transgender people in Minnesota enjoy from discrimination on the basis of their gender identity or expression. It remains against the law to fire, refuse to hire, evict, deny service to, or in other ways discriminate against a person based on the fact they’re transgender. The impact of the Goins decision will be felt in those relatively limited areas where gender has historically been a consideration, such as restrooms and locker rooms.
Don’t like that take on Minnesota’s trans-inclusive law? Try this one – from the State of Minnesota’s Department of Human Rights:
Although an employer may grant a transgendered employee the right to use the restroom consistent with the employee’s self-identify, another pivotal court decision suggests that an employer may not be legally required to do so. Juli Goins (formerly Justin Goins) had transitioned from male to female in terms of gender-identity several years before getting hired at West Publishing. Although she had not undergone sexual reassignment surgery, her driver’s license and birth certificate now identified her as female, and she dressed and presented herself as a woman. Coworkers at West, however, regarded her as male, and female employees objected to her use of the women’s restroom. Her employer sought a compromise by insisting that she use the men’s restroom or one of the company’s single-occupancy restrooms. Goins objected, and was warned that she would face disciplinary action if she continued to use the women’s lavatory. Citing the stress and hostility she had experienced, Goins resigned. She subsequently filed a lawsuit alleging sexual orientation discrimination, in violation of the Human Rights Act.
In a decision that went all the way to the state Supreme Court, Goins’ claim of discrimination was rejected. The Court found that the employer’s decision to deny Goins’ use of the women’s restroom was based on her biological gender, not her sexual orientation; and that, therefore, the employer’s policy could not be viewed as discriminatory.
I repeat again: If there is some form of standard under which genital configuration is a demarcation line, someone is going to have the authority to ascertain on which side of that demarcation line employee ‘ X’ is to be filed.
Whether its Paul Blart, Bathroom Cop, or medical records that you will have to cough up and show to Human Resources is immaterial.
If its a standard – a legal standard – of any kind, then there will have to be some way to apply and/or enforce it.
That’s been true since 2001 under Minnesota law – and it would be true even under the ENDA language that we’ve actually been allowed to see.
“Idiot wrote “Bill to exterminate trans women” – Mara
Prove me wrong, Keisling.
Prove us all wrong, Keisling.
You start making sense. Stop feeding us bullshit and lies, and open up your books – particularly to the pages that have any verifiable information about the – oh…., what’s the word? – “tweaking” of ENDA.
And stop whining when people give honest, reality-based analysis of legislation (and Roll Call reportage thereon) that will affect the lives of people who actually live in the real world and haven’t spent the better part of the last decade selling out their own people.