Montanans Tread Where Architects of ENDA Cannot?

After 130+ trans-inclusive ordinances in North America, some dating back as far as 1975, there is no statistical evidence of trans protections being used to facilitate or justify predatory activity in washrooms.  There is, however, plenty of evidence that prejudices against transgender people routinely cause them to be denied employment and/or housing.

And in Missoula, Montana, last night, the City Council got it, as they passed an equality ordinance at a margin of 10-2.  Certainly, there were some potty fears circulating, sparked by the group calling behind, and I don’t mean to give the impression that the result was unanimous.  However, the Montana Human Rights Network and Forward Montana did an excellent job of getting real, factual information out there, supported by affirming congregations who replied to the panic with Flush the Fear. Womens’ groups also came forward, with The YWCA of Missoula, Montana Women Vote, Women’s Resource Center, Montana Coalition Against Domestic and Sexual Violence, Women’s Opportunity and Resource Development Inc., and more speaking out in support.  And the Missoulian was also key in seperating the facts from myths.

Because the potty fear really doesn’t stand up to the facts.  This isn’t about any real danger — it’s about peoples’ worries about being creeped out if they suspect that a nearby woman might have been born male.  It’s about worries of being faced with an awkward moment, of the same kind that sheltered and fortunate people get when they happen across someone who lost a limb, was disfigured in a fire or has a glass eye.  This is about peoples’ rights to live, work and travel in public trumping other peoples’ rights to not have their delicate sensibilities offended by reality.

And although we realize that all people are equal and that should be enough for all people to be treated equal, it simply doesn’t happen that way in real life, and sometimes governments have to step in to push people to do the right thing.

That is, unless they decide to sell them out.

In an interview with Rep. Barney Frank by Karen Ocamb, there is some suggestion that concessions which potentially hamstring the trans protections in ENDA might be made before the bill is even introduced for discussion:

“Essentially, there are full protections for people who are transgender with a couple of provisos: One – the employer can ask for a gender consistent dress code. No mustaches and dresses. Two – people with one set of genitals do not have a legal right to get naked in front of the other set, is the basic way to put it. Some accommodation has to be made there.

“If you insist on the right for unrestricted access to bathrooms – we lose. And we’re making some accommodations here.”

We haven’t seen the language yet, so I can’t tell you if “gender consistent” can be interpreted to mean “consistent with one’s genitalia.” But women who shave their heads to raise money for breast cancer research might be less lucky if  this concession is exactly as stated.  And “gender consistent” suggests a value judgment being made, of the kind that potentially affects many cisgender (non-trans) women and men as well.

And who gets naked in a washroom?  Most people live their entire lives without having anyone see their genitals in a public washroom.  Showers might be a greater concern, but regarding shared facilities, the most recent version of ENDA had already addressed the concerns of the potential unwanted spotting of naughty bits:

“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.”

In other words, segregation in situations of possible nudity was already okay, provided the space that a trans employee was directed to wasn’t inconsistent with their identified gender.

As I said, we haven’t seen the language yet, but with clear indications that the proposed legislation was retooled regarding washrooms, it’s an easy guess that the changes coming were unnecessary and reacting to irrational fear.

Will the architects of ENDA entrench concessions with long-term consequences over a fear that is temporal, illusory and with no ground in fact?

(Offered to DailyKos)

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