Trans conference debates merits of anti-discrimination laws

Advocates debated the efficacy of anti-discrimination laws, one of the sacred cows of the LGBT rights movement, during a Harvard Law School conference on transgender legal issues last weekend.

The debate comes amidst a national discussion about whether to include gender identity language in the Employment Non-Discrimination Act (ENDA) and as lawmakers in Massachusetts consider making the state's non-discrimination laws trans-inclusive. But conference panelist Dean Spade, a teaching fellow at Harvard Law School and founder of the Sylvia Rivera Law Project, argued that in practice it is almost impossible to bring a successful case under such laws.

Spade said that for the past several decades a series of Supreme Court decisions has made it nearly impossible for someone pressing a discrimination claim to prove intent on the part of his or her employer, blunting the effectiveness of the laws.

"And I think all of us as lawyers recognize that a lot of these laws don't really work," said Spade, speaking on a Feb. 29 panel that presented an overview of the trans legal landscape. "I think we know that anti-discrimination laws aren't enforced. I think we're pretty aware that racism and able-ism and national origin discrimination, all other things that have been illegal for a while, haven't gone away because the law changed. I don't think there's any kind of naivet? amongst lawyers about that. And yet we are still wedded to those strategies in part because I think sometimes we think maybe they have another role. Maybe when we pass these laws they have a symbolic role, they change what people think of us. ... And those are questions I want to keep on the table."

At a forum later that day on sex segregation and gender regulation Lisa Mottet, director of the Transgender Civil Rights Project for the National Gay and Lesbian Task Force (NGLTF), provided a different perspective, arguing that the 13 state non-discrimination laws that cover transgender people have provided no major court victories because no one has yet tested them. She said the solution is to test those laws in court and establish case law around gender identity discrimination, but for people facing discrimination there are many factors that prevent them from filing a lawsuit.

"I am troubled by the fact that there aren't a lot of lawsuits under these laws. Part of it is they're new. We passed four laws last year, so a year ago we only had nine state laws for example, so that's part of it," said Mottet. "But I think it's also that people don't know they have rights, that people aren't in the financial position to hire an attorney, and [when] there's still a lot of other discrimination happening in a person's life, their highest priority isn't going after an employer that fired them. Their highest priority is finding a new job, finding a place to live that they can afford."

Another participant on that panel, attorney Phyllis Randolph Frye of Houston, Texas, argued that even though there is little litigation under non-discrimination laws, that does not mean they are not effective. Frye, who transitioned in the '70s, was introduced by moderator Donna Rose as the "grandmother" of the national transgender legal and political movement. In the '90s she founded and presided over the International Conference on Transgender Law and Employment Policy.

"One of the reason why there is [little litigation under the non-discrimination laws] is that as litigators our primary duty is to represent our client, not to make case law, as much as we would like to. And if we can browbeat or otherwise get an employer or city or somebody else to actually follow the law, if we can sit down with their council and explain to them, 'A, B, C - oh, light bulb! - and get them to comply or settle, then that is our goal," said Frye.

The third annual Harvard Lambda Legal Advocacy (HaLLA) Conference, sponsored by HLS Lambda, the school's LGBT student organization, was the first in the series to focus on transgender rights, and it was held on campus Feb. 29 through March 1.

The debate over non-discrimination laws was part of a larger debate during the conference between two strands of the transgender movement. Paisley Currah, associate professor of political science for the City University of New York- Brooklyn, said during the legal overview panel that one political stance within the movement is to push for state recognition of transgender identity and transgender inclusion in structures like non-discrimination laws; a more leftist stance is to advocate for an end to all state efforts to define gender and for a more equitable redistribution of resources rather than equality under the law. But Currah said even those who hold the more leftist view often find that when they are working to make trans-friendly public policy, they often have to use the rhetoric of the movement for state recognition in order to make any headway. He said they often feel forced to provide lawmakers with clear definitions of transgender identity and information from medical experts, even though politically they may dislike doing so.

"So it's this kind of cognitive thing going on. You're in a room with policy-makers and you're thinking, 'This is crazy. I can't believe that I'm citing this source or I'm talking about this totally pathologizing argument.' And you're sitting there politely, and you wore a tie to look nice, and you're doing the whole thing, and the entire time you're thinking, 'I can't believe this is happening, we have to make this terrible argument.' So I think the criticism that kind of gets leveled sometimes at the transgender rights crowd who make arguments that focus a lot on identity or even use expert medical discourse is just a lot more complicated, I think."

The divide was particularly evident during an exchange between Spade and Sharon McGowan, staff attorney for the American Civil Liberties Union (ACLU) LGBT Project, during the legal overview panel. An audience member asked panelists to compare the ways that governments define both gender and race, and Spade answered, "As a trans person I feel frustrated that the state uses gender categories to administer everything that I need, and I'm really aware of that, and that can allow me to build a critical analysis of how the state administers wellbeing, period, right? So that I can have an ally politics as well with all the other sets of people who are misclassified and who experience this maldistribution that is what the state is administering."

But McGowan, who also sat on the panel, countered that some transgender people may not want to do away with gender categories. She said while some may argue that the push for legal recognition of transgender identity means being co-opted by mainstream society, for others that recognition is important.

"I get so inspired when I hear Dean's rhetoric, but the way in which I think it assumes that there is a vision that everybody would just be going towards if we just stopped being such pussies about the whole thing and just did it and gave up the man - and my question is, at some level, for trans folks who feel very strongly as though a female gender identity in a world in which female identity means something, are they just co-opted, or is there something there that is also something worth fighting for, and can the two exist at the same time? ... There is for me a tension in figuring out what is co-optation versus what are sustainable parallel tracks, if such a thing can exist."

While much of the conference focused on legal theories and legislative strategy, there was also discussion of the impact that anti-trans discrimination can have on people's day-to-day lives. Elizabeth Rivera, program coordinator for the Brooklyn-based Audre Lorde Project's TransJustice program, described her own experience at age 20 staying in a New York homeless shelter while she was transitioning from male to female. She said when she went to the shelter's job counselor she was given three job leads: a drag restaurant, a lingerie store, and a cosmetics store.

"I just found it kind of curious that those were the spaces this individual felt I most likely would fit in," said Rivera.

She said staff placed her on the men's floor and urged her to wear men's clothing, and when she and another transwoman applied to transfer to the women's floor they were denied.

"Some of the things the girls were saying was they don't feel safe with us around their children. Some of them came from domestic violence experiences, some have been raped, and so they didn't feel comfortable having men on the floor. This was specifically the way that they said it," said Rivera. "And for me it was just, I was at a point where I didn't care. ... It didn't matter what floor you put me on, just get me out of this shelter was specifically where I wanted to go. And I felt like, especially for transgender and gender nonconforming people, that becomes a huge challenge, especially when it comes to dealing with people who have no clue how to address your issues, how to even help you."