Bill 23-07, Non-Discrimination – Gender Identity

[Howard Hartman]

The following Bill is scheduled to be introduced to the County Council on September 11, 2007:

Bill 23-07, Non-Discrimination – Gender Identity, sponsored by Councilmember Trachtenberg, Ervin and Elrich. Public Hearing is scheduled for 10/02/07 at 1:30 p.m.

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[Howard Hartman]

Councilmember Duchy Trachtenberg:
Separating Fact from Fiction About Montgomery’s
Transgender Legislation Rights Protection Measure
Scheduled for Nov. 13 Council Vote

ROCKVILLE, Md., November 2, 2007—Despite the efforts of a small group of ideologically motivated individuals to raise fears and continue discriminatory policies, support for the Montgomery County Council’s proposal to protect the rights of transgender individuals remains strong, Councilmember Duchy Trachtenberg, chief sponsor of the legislation, said today.

The legislation, which has been discussed in a worksession of the Council’s Health and Human Services Committee and at a legislative hearing before the full Council, is scheduled for a vote for adoption by the Council on Tuesday, Nov. 13.

The legislation proposed for Montgomery would amend the County Code and sections of County law to “prohibit discrimination in housing, employment, public accommodations, cable television service and taxicab service on the basis of gender identity.”

Thirteen states have laws prohibiting discrimination based on “gender identity or expression” in employment, another half-dozen—including Maryland—have legislation pending and almost 100 cities have ordinances on the subject. These laws cover about 37 percent of the U.S. population.

The issue of access to public bathrooms has now been resolved by the federal courts. In the landmark case Cruzan v. Davis, a ruling was made in June 2002 by a federal appeals court in Minnesota that an employer is within its rights to instruct a transgendered employee to use the restroom matching their new presentation. The ruling states that if another employee complains, the company may offer the complaining employee an accommodation (such as the use of a different restroom for the complaining employee.)

“Montgomery County has historically taken the lead in protecting its most vulnerable citizens: Minorities, gays, the poor, women, children and senior citizens,” said Councilmember Trachtenberg (D-At-Large). “This is nothing more or less than a continuation of that tradition—an expression of our best and most noble principles.”

Jillian Todd Weiss, Associate Professor of Law and Public Policy at Ramapo College of New Jersey and the author of the book Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals, has written extensively on the subject.

“Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: What if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females?” said Professor Weiss. “This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.

“My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law. Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not.”

[Howard Hartman]

The Gazette
Janel Davis

Transgender Discrimination Ban is Official

Leggett signs it into law; opposition groups plan a lawsuit and referendum drive

Montgomery County Executive Isiah Leggett has signed into law the county’s controversial legislation aimed at preventing discrimination against transgender people.

A group that opposes the law, which was signed Nov. 21, is planning to collect thousands of signatures for a referendum next year, and another group plans to file a lawsuit, claiming the law is unconstitutional.

The law takes effect in 90 days.

Michelle Turner, a member of Citizens for a Responsible Curriculum, said her group will begin collecting the almost 25,000 signatures it needs to put the issue before the voters in November 2008.

‘‘We want this put to a vote and citizens to be able to vote on this bill,” she said. ‘‘The County Council received hundreds and hundreds of letters in opposition to this bill ... and we want citizens to be able to exercise their rights and decide this issue.”

To place a referendum on the ballot, CRC must collect valid signatures from 5 percent — or 24,957 — of the county’s registered voters within 90 days.

‘‘It’s a daunting task,” Turner said.

Opposition began in earnest in October when a council health committee proposed amending the legislation to include a provision regulating areas such as bathrooms and locker rooms.

After aggressive lobbying, the committee removed that provision and passed the legislation with an 8-0 vote earlier this month.

As approved, the legislation broadens the county’s existing laws that prohibit discrimination against transgender people in housing, employment, cable television service and taxi service. The law leaves it up to managers of public facilities to decide who is accommodated in restrooms and locker rooms.

Although the facilities amendment was removed, opponents say the legislation is still too broad and means women and girls would be exposed to male genitalia either from transgender people who had not yet undergone a sex change operation, or from men who would claim to be transgender in order to gain access to locker rooms and restrooms from which they would normally be banned.

Robert H. Tyler, general counsel with California’s Advocates for Faith and Freedom, said his group expects to file a lawsuit soon on behalf of its clients, Parents and Friends of Ex-Gays and Gays.

‘‘We are going to proceed with the lawsuit. We are also going take a longer look at the documentation that occurred at the [council] hearings,” he said.

In a letter to Leggett (D), Tyler argued that the legislation was too vague under the 14th Amendment and that it violates the right to privacy.

Leggett — whose approval was contingent upon removal of the bathroom⁄locker room provision — said county attorneys saw no legal problems with the legislation.

[Howard Hartman]

Council President Knapp Explains True
Meaning of County's Gender Identity Law

Montgomery County Law Scheduled to Take Effect Today Will Guarentee Rights for
Transgender People; Bathroom and Locker Room Choices Not Affected by the Legislation

ROCKVILLE, Md., February 20, 2008 – Montgomery County Council President Mike Knapp said that the County’s new gender identity law, scheduled to take effect today, will guarantee certain rights for transgender people that are already guaranteed for all other residents of the County. He also criticized opponents who misrepresented the impact of this law by inaccurately claiming that it will require men to be allowed into women’s bathrooms and locker rooms.

Bill 23-07, whose chief sponsor was Councilmember Duchy Trachtenberg, was enacted by the Council by an 8-0 vote on Nov. 13, 2007, and later was signed by County Executive Isiah Leggett. The law was scheduled to take effect today, but is on hold pending the certification of petitions to send the law to a November referendum.

The law will prohibit discrimination against transgender people in housing, employment, public accommodations, cable television service and taxicab service. For example, under the new law, a restaurant owner cannot refuse to serve someone because of that person’s gender identity.

While hailing the intent of the legislation, Council President Knapp also wanted to clarify its effect on public accommodations, such as bathrooms and locker rooms.

“We have heard some people are confused about the effect of this new law on how the operator of a public accommodation controls the use of a public bathroom or locker room,” said Council President Knapp. “Bill 23-07 did not change the law in this area.”

Opponents of the legislation have circulated petitions to send the law to referendum, telling potential signers that the legislation requires men to be allowed in women’s bathrooms and locker rooms.

This is not accurate, Knapp said. The law still allows the operators of public bathrooms and locker rooms to continue to separate their facilities based on gender identity or biological gender. For example, a restaurant owner can require a biological male presenting as a female to use the men’s bathroom. The new law does not require a restaurant owner to allow biological males access to women’s bathrooms, or vice-versa.

“The misinformation being put out about this law really troubles me,” said Council President Knapp. “We guaranteed that certain people in our County will have the same rights as other residents—and that is all we did. Those who intentionally mislead people about what this bill means will have to explain what is behind their actions, but we want everyone to know exactly what this law is about.”

Councilmember Trachtenberg said the law will have a significant impact on transgender people in Montgomery County.

"As the last few months have shown, transgender citizens can be the target of unpleasant invective and misguided fears,” said Councilmember Trachtenberg. “What this bill does is simply preserve the basic rights transgender people should enjoy along with everyone else—to live and work day to day with dignity, respect and equal protection under the law.”