The transgender rights bill that isn't right

  • by Gwendolyn Ann Smith
  • Wednesday March 9, 2011
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Illustration: Christine Smith
Illustration: Christine Smith

The Maryland House of Delegates' health and government operations committee is this week holding a hearing on the Gender Identity Anti-Discrimination bill. GINDA, also known as HB 235, would prohibit discrimination on the basis of gender identity and sexual orientation.

While the bill was introduced at the end of January, it gained increased momentum after the murder of African American transwoman Tyra Trent, whose body was discovered in Baltimore on February 19. Some are even seeking to have the bill named after Trent.

On the surface, this sounds great. Perhaps as Maryland-based activist Sharon Brackett has said, this bill would protect those like Trent, and keep them safe in the future. It's all good and well, right?

Yes and no.

While the bill does prohibit discrimination in employment and housing, the bill does not include provisions barring discrimination in public accommodations – for example, restaurants, hotels, and gyms. It does not provide any accommodations for gender-neutral restrooms, nor does it allow transgender people to use restrooms that are appropriate for their gender identity or expression.

Curiously enough, a similar bill has gone through Maryland for four years, including public accommodation as well as housing and employment. This year, however, the accommodation language was stripped.

For many in Maryland, this has been a deal-breaker. Without protections in public accommodations, the bill simply does not go far enough. We're left, yet again, with the eternal struggle over what transgender people do in bathrooms.

A hint for those who might be curious: we're doing what most people do there – using the facilities.

In all seriousness, how am I protected by not allowing transgender people like Trent or I to be in the women's room? How are we safer being forced to use a men's room where we are simply going to be bigger targets of bigotry and prejudice?

When we look back at the civil rights struggles of the 1960s, you may think of the Greensboro sit-in, where African Americans staged a sit-in at a "whites only" Woolworth's counter. Or perhaps you'll think of Rosa Parks not moving to the back of the bus. You may even think of the desegregation of schools, of "whites" and "colored" drinking fountains, or the Freedom Riders' courageous test of Boynton v. Virginia, which outlawed racial segregation in public transportation.

Each of these was a battle over public accommodations. One could argue that the struggle over public accommodations is the bigger issue here. Not that employment and housing are not an important needs, but public accommodations protections are the keystone.

In the fights over disability rights of the 1980s, it wasn't employment and housing that got noticed: it was the need for handicap ramps, curb cuts, and Braille signage. Again, it was about public accommodations.

Over and over again, you see how important the issue of public accommodations is – and why it is the key battleground, the most important part of the whole. It's not that employment protections and housing protections are not needed – it's that you need to be able to use a restroom and use other public accommodations without fear that you will be discriminated against.

Over the course of time, people from both sides have sided against transgender people in regard to public accommodations. Representative Barney Frank (D-Massachusetts), has long made issue of transgender people in restrooms and locker rooms an issue over the Employment Non-Discrimination Act, while it has become a common right-wing scare tactic to liken transgender public accommodation rights to allowing pedophilic males in public women's restrooms with young, female children.

That truly is a straw man that needs to die. No transgender rights law is actually protecting pedophiles, or allowing them access to opposite gender restrooms. That's right up there with same-sex marriage paving the way for humans to marry their pet box turtle.

Those in favor of the bill argue that the "political reality" in Maryland is that there's no way one can get everything, and that transgender people will simply have to be happy with two out of three – and we'll pick up the third later, in some future bill down the line. They argue that incremental change is the only way to achieve full equality.

I can't help but find this all too reminiscent of bills that have cut out gender identity- and expression-specific language in favor of sexual orientation protections, and just how well the argument over incremental change has worked with these – but enough about ENDA.

Now maybe I'm wrong in this, but I see no reason to provide a bill that gives some rights over extending all rights. As trans activist Katrina Rose pointed out, no one in Maryland is feeling it's okay not to push for same-sex marriage, and opt instead for an easier to achieve civil unions statute.

It might take a bit longer to get everything in one bill. I'm not going to argue that any bill is going to be an easy sell, and I'm sure that more protections will only make an uphill battle that's that much tougher. Yet in the end, it will be a win we can all celebrate, knowing that we did not get a bill that did not go far enough, and required patching later on.

If one wants to honor the memory of Trent, then don't put her name on a bill that wouldn't have provided her a full slate of protections.

Really, it's not only time to do this, but it's time to do it right.

Gwen Smith wishes she lived in a world where she did not need rights bills to urinate. You can find her online at