In another lifetime, when I was young, I was very active in the effort to amend Maryland’s anti-discrimination law to ban discrimination based on sexual orientation. I believed then, as I believe now, that sexual orientation discrimination is, in fact, sex discrimination. However, my feelings on this are irrelevant, as Maryland law made quite clear that sexual orientation discrimination and sex discrimination were two different things. So, many hundreds of people, over the course of many years, worked doggedly to change the law.
Looking back on this effort now, this History that is also “my life,” myths abound about what happened in Maryland during the mid-1990s to early 2000s.
One of the Great Myths about Gender Identity legislation in Maryland is that there was a secret Gay plot to strip Gender Identity protections from a bill to ban discrimination based on sexual orientation. The Secret Plot Myth gets repeated even today.
Here are two recent restatements of this Myth from Donna Cartwright of the Maryland Coalition for Trans* Equality and Diego Sanchez.
The Maryland Coalition for Trans* Equality (MCTE) expressed its deep disappointment at the Senate Judicial Proceedings Committee’s vote today to kill the Fairness for All Marylanders Act (SB 449) which would have extended anti-discrimination protection to transgender and gender-different people throughout the state. ”It is now 14 years since transgender protections were stripped from LGBT anti-discrimination legislation by the General Assembly. It’s long past time for the legislature to take meaningful action to address the severe discrimination and disadvantage that trans* people face,” said Donna Cartwright, a member of the MCTE Steering Committee. The Coalition vowed to continue the fight for trans* rights in Maryland.
As a participant in the effort to pass sexual orientation anti-discrimination legislation in Maryland, it is frustrating to read statements from people like Diego Sanchez, who, as far as I know, were nowhere near Maryland to help us pass protections for Gays and Lesbians. But Diego hears this from Donna Cartwright, so it becomes true – and Transgender groups in Maryland have continuously advanced this fantasy for years to guilt Gays and Lesbians into supporting their backwards, woman-hating legislation.
You repeat a lie often enough, it becomes true. Indeed, it has been remarkably effective, and many Gays and Lesbians have adopted this facile statement as truth without question or examination.
Except, of course, it’s false.
Here’s what happened.
In 1996, 1997 and 1998, the Free State Justice Campaign (“Free State”), the predecessor to Equality Maryland, was the statewide group working to pass this bill (along with other groups, including the Lesbian Avengers). It wasn’t easy working with Free State, because many of us considered it to not be aggressive enough. I worked on each of these legislative campaigns in different capacities. In 1996, I was a reporter at a legal newspaper, so I couldn’t actually publicly work on the bill (but I am guessing that I wrote about it). In 1997 and 1998, I worked at nonprofits and actively worked on the bills.
In each legislative session (and in sessions prior), the bills focused solely on sexual orientation. You can read House Bill 67 – 1996, House Bill 431 – 1997 and House Bill 68 – 1998 yourself and see.
Then came 1999. In 1999, Free State introduced – with great fanfare - a bill that included Gender Identity. They did this because the Human Rights Campaign, from which Free State received funding, told them to do it. That was House Bill 315 – 1999.
There was no input from grassroots Gay organizations in Maryland about whether we wanted this in the bill.
None. Zero. Zilch.
But we supported it anyway, because we didn’t have a choice and we wanted – needed – protections for Gay and Lesbian People.
The Gender Identity language, unsurprisingly, got removed after an abysmal hearing in the House where Liz Seaton, the Executive Director of Free State, could not explain what the Gender Identity language meant (yes, I was at the hearing and no, it wasn’t pretty). An amended version of House Bill 315 passed the House of Delegates, only to die in the Senate Judicial Proceedings Committee (which anyone who knows Maryland politics knows was the place where things died, all the time, under the leadership of then-Senator Walter Baker).
The Transgender group active in Maryland went BALLISTIC over the removal of Gender Identity, despite the fact that they could not articulate clearly the need for this language at the hearing (remember, I was there and no, it was not pretty). This was my first time around with violent Transgender activists. Harassing telephone calls and cross-dressing men accosting me in bars became routine. It seems that nothing has changed on that front, as this year, people affiliated with MCTE experienced threats of physical violence for, apparently, their willingness to amend the bill to address some of the concerns about it.
It’s a myth that the General Assembly “stripped” the Gender Identity language out and “sold out” the Transgender Community – what is actually true is that the Human Rights Campaign issued a top-down directive to Free State to include completely subjective language that no one wanted and that Free State and the Transgender groups could not explain. It would be MORE ACCURATE to say that the Human Rights Campaign sold out the Gay and Lesbian Community by deciding, without any input from Gays and Lesbians, to support language that was anti-Feminist, anti-Gay and anti-Lesbian.
I have no idea why the Human Rights Campaign ordered Free State to include this language. Maybe they wanted to see what would happen. Maybe it was a cynical move to distinguish Gays and Lesbians from Transgender people. Maybe they felt overconfident, given the outpouring of support Gays and Lesbians received in the aftermath of the Matthew Shepard murder in October of 1998. I don’t like the Human Rights Campaign, and I didn’t support them in this – which is why we formed a separate group, a committee of the Gay and Lesbian Community Center of Baltimore (“GLCCB”), to work on this legislation, away from Free State.
The GLCCB group received ZERO funding from any national GLBT Organization. And we worked really hard and, eventually, the General Assembly approved the Anti-Discrimination Act of 2001 – and all the while, a handful of Transgender activists led by the redoubtable Alyson Meiselman continuously accused Gays and Lesbians of selling out the Transgender Community and made homophobic statements to us – a trend that continues to this day (because homophobia in service to Transgender people is permissible). The bill file for the Anti-Discrimination Act is here. This includes all the written testimony on the bill.
One of the other great Gender Identity Myths is that there is something “wrong” with asking individuals to demonstrate that they are, in fact, who they say they are. Transgender activists take great offense that the definition of Gender Identity should have any measure of objectivity. As a lawyer, I must, if I want to prevail, produce EVIDENCE to support my assertions and demonstrate my entitlement to some remedy. EVIDENCE does not include how one feels about a subject, or what one feels would be the best thing. EVIDENCE means Actual Facts.
The Anti-Discrimination Act of 2001 was a creature of compromise. Compromise can feel like a failure. Compromise happens everyday in legislative campaigns. One of the compromises to pass the bill follows:
An employer shall be immune from liability under this title or under the common law arising out of reasonable acts taken by the employer to verify the sexual orientation of any employee or applicant in response to a charge filed against the employer on the basis of sexual orientation.
Md. STATE GOVERNMENT Code Ann. § 20-608.
That is, if you want to claim that your boss fired you because you are Gay, you better actually be Gay, and your employer can investigate whether you are actually Gay.
Advocates of Gender Identity legislation don’t care much for evidence. They are in favor, instead, of feelings. Other states have adopted subjective definitions of Gender Identity as follows:
“Gender identity or expression” as a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Tell me, what IS a gender-related identity? Gender is not defined.
“Gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth. Tradition? How do we decide that” Whose traditions?
“Gender identity or expression” as having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth. So we are talking stereotypes. Where do we look for a source of these stereotypes?
“Gender identity or expression” means a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose. This definition ultimately allows an individual’s “sincerely held” belief to trump objective evidence.
These definitions are mushy and subjective. These definitions let ANYONE to claim Gender Identity as a basis for a discrimination claim, regardless of where they fall under what Trans Activists call the Umbrella.
Transgender Activists pretend that everyone who opposes this legislation is a bigot. Indeed, some opponents of this legislation are bigots. Peter Sprigg is a total bigot. However, people who are NOT bigots can also read this legislation and see just how mushy and subjective it is. Women and Girls are not bigots because we don’t want to share sex-segregated spaces with Male-bodied people. Lesbian Feminists are not bigots for rejecting sex stereotypes. Regular people aren’t bigots for wanting a more objective standard on which to make decisions.
Maybe, just maybe, it is time for Transgender Activists to stop blaming everyone in Maryland for the failure of this legislation to advance and start looking at (1) themselves and how they treat people and (2) the bill itself.
And maybe, just maybe, Transgender Activists can start looking at history as it was instead of reinventing it as they need it to be.