Letters to the Editor
Dana Runs
Published Letters: 161 Editor's Choice: 15
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To Tom 70
[Read the article: Why the T in LGBT is here to stay]
[Read more letters about this article: Here]Excellent question, Tom! Unfortunately, the answer leads us off-topic, so I'll be brief. I'm happy to discuss it in greater depth by email, though.
Civil rights law is in development. It is evolving. We continue to recognize that the law we thought would solve the civil rights issue once and for all -- the Civil Rights Act of 1964 -- in fact does no such thing. As we grow and learn and become more aware as a nation, we in the law realize silently that we kind of went about it the wrong way, but now we're stuck with the system we have and there isn't the political will to change it wholesale. So we're left with piecemeal tinkering around the edges.
A case in point is national origin discrimination. (By the way, the law doesn't prohibit discrimination against, as you say, "black, female, homosexual, transgender," but for "race, sex, sexual orientation and gender expression/identity." That's an important distinction.) National origin discrimination was originally conceived to cover the country where a person is from or where his ancestors are from. But we started to discover that there were people who didn't fall squarely into that, yet were being discriminated against based on perceptions of things that were associated with national origin -- such as culture, accent, ethnicity, etc. -- but were not actually national origin.
As a result of recognizing these inequities, courts all across the country have tried to fashion some sort of legal fiction that would do rough justice in the face of a poorly written and not fully inclusive law. Congress has not had the vision or the political will to do it in 43 years, so courts have tried to make sense of it. And they have done it in conflicting ways and haphazardly, so that we now have no clear standard for national origin discrimination in America, and a person who would be protected in California (the 9th Circuit) might not be protected in Philadelphia (the 3rd Circuit). In fact, that guy in California might find he has protection before one judge, but not before another. Conversely, an employer can't know what precisely is legal and what is not in the national origin sphere of civil rights.
We determine that the best way to do it is to provide explicit protection in statutes for matters associated with the protected class of people. In national origin, it might be accent, or cultural appearance. In sexual orientation, it's gender expression and identity.
Now, we have to balance interests, here. You're right, an employer needs to have the freedom to make descisions consistent with the best presentation of his business. We as a society have determined, though, that the employer's rights end at certain places. In some cases, we say it's with things that are inherent about a person, as opposed to choices made. These include protections based on sex, race, etc. But we also deem important some things that are a matter of choice such as religion, and some things that are temporal, such as age. We also protect from discrimination people who are receiving public assistance, because we think that's an important public policy. So, it has gone far beyond inherent qualities like race and sex.
We also realize that if we really want to be fair in the employment arena, we should protect against discriminatory practices that have no bearing on job performance. But, as I said above, we have started with the wrong framework, and we have to stick with it for now.
Especially where gays and lesbians are concerned, gender expression and identity are so pervasively associated with who a person is -- rather than just what they choose to do -- that in this case we need to include it as an "associated factor" that needs protection in order to give meaning to the "sexual orientation" protection we give lip service to protecting.
Do you think that the gender expression of an effeminate gay man or a butch lesbian is just a hobby? I'm afraid it's not. It's very much a part of who they are, because -- and this is something Susan Stryker was trying to point out -- gender expression and sexuality are inextricably linked. We cannot separate one from the other. And to make a law that attempts to do that would only invite injustice worse than what we are currently seeing in the area of national origin discrimination, which is a confusing and senseless mess.
That's the Cliff Notes version. Hope it makes a little sense.
http://danaruns.typepad.com/danarunstheworld/
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Bobyon
[Read the article: Why the T in LGBT is here to stay]
[Read more letters about this article: Here]You write:
"Yet the question remains, why should GLBs give up a rights victory that doesn't include Ts people?"
You're asking the wrong question, I'm afraid, as is everyone else in this discussion. The question you and Arivosis should be asking is:
Do GLB's give up any protections that we need by eliminating language about gender expression and gender identity from ENDA?
Unfortunately, you've bought into the conservative Christian Republican meme. It's not about whether "special rights" should be given to "trannies" (which I understand to be a word that gives them offense), but whether we (gays and lesbians) need language in ENDA that will also have the benefit of protection for the transgendered. You're playing right into their hand...
http://danaruns.typepad.com/danarunstheworld/