GenderPAC CIRCA 1959!
April 27, 2007
HR 1592 PASSES THE HOUSE!
May 3, 2007

May Flowers and ENDA’s Showers

I pulled a couple of well versed legal minds in to shed more light on the shared space concerns:

“It’s problematic for employees who have transitioned prior to employment.

As I read it, it means that shower or locker rooms without private stalls are exempt, so long as employees get a shower or locker room ‘not inconsistent with’ their self-identified gender. Thus, a transgender person, regardless of surgical status, can be singled out for placement in a single-person shower room, though everyone else uses a multi-person gendered shower room. However, this would only happen, according to the text, if the rooms involved ‘unavoidable nudity.’ Many shower and locker rooms these days have some stalls for private use.

ENDA does not require employers to segregate transgender employees. Rather, it specifically notes that when the locker/shower room has private spaces, ENDA applies to permit the transgender person to use the room appropriate to their gender identity. But when there is no private space in the locker/shower room, then ENDA leaves it up to the employer to segregate or not to segregate – it is up to them to do the right thing, and I hope they would.” – Dr. Jillian Weiss ( Dr. Jillian T. Weiss, has a J.D., Ph.D (Law), 20 years of experience in the corporate world, and is experienced in working with large companies and public agencies. She blogs at http://transworkplace.blogspot.com)

Katrina Rose:

I think I’m going to have to plead guilty to having briefly fallen victim to long-term slave mentality. My initial reaction was ‘Perhaps there could be better language, but this language certainly could be worse. It probably won’t completely foreclose a Goins v. West
situation, but I will say that it is better than I’d expected to see.’

I’d grown so accustomed to seeing either double-talk or blatant ‘penis panic’ histrionics from Barney Frank and his worshipers that I was initially happy to see something that at least seems to be better than a full shower/bathroom exclusion.

Yes, it is better than I expected to see. Yes, it could be worse. However, the ‘certain shared facilities’ clause of the newly-introduced ENDA gives the employer total control over de facto identity determination for transsexuals (I’m sorry if this ruffles the political correctness feathers of the Wilchins-wonks and other radical gender libertines, but transsexuals are who this provision impacts; presumably this version of ENDA would also alleviate Oiler v. Winn-Dixie situations, but mere crossdressing at work is not something
that should be enforced by law and if the concept in any way becomes associated with this bill it is DOA) subject to work-site use of “shower or dressing facilities.”

A hyper-technical concern is: While “shower facilities” should have an obvious meaning, but how far will the creative employer who truly does not want to have a transsexual employee be able to stretch the term “dressing facilities”? I’m hoping that perhaps an existing OSHA regulation defining the latter would plug this loophole, but I’m not optimistic.

This hyper-technical concern is something of a predicate to the broader problem: the provision is a de facto evisceration of legitimate legal protection for the transitioned transsexual by allowing the employer to do something critical and ever so basic: it
gives the employer a free pass to ask up front – and at any time – about the person’s gender status and/or HISTORY.

West’s position in the Goins v. West Group case (a bathroom usage case involving an MTF for those who have forgotten already; though she personally identifies as ‘transgender’ rather than ‘transsexual,’ the realities of her situation are contiguous with those of one who does identify as ‘transsexual’) implied to the court – and to the public – that everything would have been okay with Juli Goins’ use of the women’s restroom if she had a vagina AND (and this would be even more critical for someone who is not out) was willing to submit to the employer’s questions about that issue and prove vaginal presence to
the employer’s satisfaction.

This cannot be accepted as how reality would have played out, however.

The alleged complaints came from women (who were never identified, but that’s a different problematic aspect of the case) who saw her enter the restroom fully-clothed. The desire of these never-identified female co-workers to prevent her from doing so further – and the immediately-thereafter-asserted right of the employer to ask her about her gender status in spite of trans-inclusive state employment anti-discrimination law – was based on these never-identified female co-workers’ personal perceptions of how she looked fully-clothed.

I see no reason to believe that this will not be the scenario that lays out regarding any potential dispute regarding “shower or dressing facilities” pursuant to the 2007 ENDA. And, can anyone envision any federal judge NOT looking to Goins v. West Group (and the
subsequent Doe v. City of Minneapolis, which DID involve shower facilities) for guidance on who to interpret our rights under this language?

Sadly, I’m left with the following ultimate assessment: Meet the new
ENDA, same as the old Goins v. West Group.

– Katrina C. Rose, Attorney at Law (with apologies to both Pete Townsend and Juli Goins)

7 Comments

  1. Terri says:

    Every time I try to “engage” so-called “transgender activists” they always start screaming “separatist”, “elitist” and many other things not quite as kind. They start throwing out phrases like “having a vagina does not make you a woman”. Well, guess what? I AGREE with them; having a vagina does NOT make one a woman. But there IS a difference between m2f’s who have a penis and those who have had surgery. No matter how loud they scream and protest, THERE IS A HUGE DIFFERENCE. As long as we are grouped together as being the same under a “transgender umbrella” we will never get what we really want and need; simple legal recognition as a woman.
    I had my surgery 20+ years ago. I am married and have a family. This bill does absolutely NOTHING for me. If anything, it takes me backward. This bill will allow an employer to LEGALLY segregate me from other women, either by forcing me to use a “private facility” or one that is designated for “transgendered employees”. What about my dignity as a woman? By legally allowing an employer to ASK my status then my current stealth is impossible. Once they “know” I am relegated with all “transgenders”. What I am also worried about is the precedent this could set. Today the work locker room, tomorrow my athletic club where I now shower and change in a facility that is completely open and nudity is common. Now do you REALLY want to know why I NEVER wanted to be included under any “transgender” umbrella?
    Did I suffer all my life and finally get this fixed only to be told that I can NEVER be a “real” woman? What does this do to very young trans people who are dealing with being born with transsexualism? Do we tell them that no matter WHAT they do they will forever be a “tranny”. That they have NO chance to ever be recognized a woman. A lot to look forward to, huh? All it would have to do is have language that defines women who have had surgery. This bill gives post-op women born with transsexualism NOTHING. It TAKES AWAY their ability to be stealth in their employment. It could legally segregate them from other women. It could force them to shower with people with penises. That is something I would NEVER do. Who in the h*** gave these “trans-activists” the right to speak for me?
    I will NEVER support this bill as written. As a matter of fact I am currently organizing opposition to it. I know my Senator, having worked on his campaign. I am part of a local women’s political organization (of which I am the only member who was born with transsexualism). I have discussed it with them and they are going to fight it with me.
    You think I am pissed. You’re right. There are thousands and thousands of others who are also. This is my life they are screwing with.

    Terri

  2. Terri says:

    Every time I try to “engage” so-called “transgender activists” they always start screaming “separatist”, “elitist” and many other things not quite as kind. They start throwing out phrases like “having a vagina does not make you a woman”. Well, guess what? I AGREE with them; having a vagina does NOT make one a woman. But there IS a difference between m2f’s who have a penis and those who have had surgery. No matter how loud they scream and protest, THERE IS A HUGE DIFFERENCE. As long as we are grouped together as being the same under a “transgender umbrella” we will never get what we really want and need; simple legal recognition as a woman.
    I had my surgery 20+ years ago. I am married and have a family. This bill does absolutely NOTHING for me. If anything, it takes me backward. This bill will allow an employer to LEGALLY segregate me from other women, either by forcing me to use a “private facility” or one that is designated for “transgendered employees”. What about my dignity as a woman? By legally allowing an employer to ASK my status then my current stealth is impossible. Once they “know” I am relegated with all “transgenders”. What I am also worried about is the precedent this could set. Today the work locker room, tomorrow my athletic club where I now shower and change in a facility that is completely open and nudity is common. Now do you REALLY want to know why I NEVER wanted to be included under any “transgender” umbrella?
    Did I suffer all my life and finally get this fixed only to be told that I can NEVER be a “real” woman? What does this do to very young trans people who are dealing with being born with transsexualism? Do we tell them that no matter WHAT they do they will forever be a “tranny”. That they have NO chance to ever be recognized a woman. A lot to look forward to, huh? All it would have to do is have language that defines women who have had surgery. This bill gives post-op women born with transsexualism NOTHING. It TAKES AWAY their ability to be stealth in their employment. It could legally segregate them from other women. It could force them to shower with people with penises. That is something I would NEVER do. Who in the h*** gave these “trans-activists” the right to speak for me?
    I will NEVER support this bill as written. As a matter of fact I am currently organizing opposition to it. I know my Senator, having worked on his campaign. I am part of a local women’s political organization (of which I am the only member who was born with transsexualism). I have discussed it with them and they are going to fight it with me.
    You think I am pissed. You’re right. There are thousands and thousands of others who are also. This is my life they are screwing with.

    Terri

  3. RachelPhilPa says:

    Sorry, meant to say “it’s not like being able to use a bathroom in peace is an important part of my life.”

  4. RachelPhilPa says:

    Sorry, meant to say “it’s not like being able to use a bathroom in peace is an important part of my life.”

  5. RachelPhilPa says:

    [snark] Ah, yes, the trans community’s steadfast friend, Barney Frank, comes through for us again…helped by the ever-able HRC and Ms there’s-no-such-thing-as-a-transsexual-in-my-empire Riki Wilchins.

    Oh, but that’s ok, it’s not like being able to use a bathroom in peace is not an important part of my life.
    [/snark]

    ENDA in this form is useless to me. We still have to rely on the good graces and generous hearts of employers and their cisgender female employees.

  6. RachelPhilPa says:

    [snark] Ah, yes, the trans community’s steadfast friend, Barney Frank, comes through for us again…helped by the ever-able HRC and Ms there’s-no-such-thing-as-a-transsexual-in-my-empire Riki Wilchins.

    Oh, but that’s ok, it’s not like being able to use a bathroom in peace is not an important part of my life.
    [/snark]

    ENDA in this form is useless to me. We still have to rely on the good graces and generous hearts of employers and their cisgender female employees.

  7. […] April 27th, 2007 I have been reading the reactions to what is being hailed as a “trans inclusive” ENDA. Legal minds that I have great respect for weigh in on it at the home of the only “tell it like it is trans advocate” that I know of HERE. […]