By Kelley Winters
The National Center for Transgender Equality Executive Director Mara Keisling respondedto sharp criticism of the recent strategy by NCTE and other nonprofits funded by the Gill Foundation to back a Pennsylvania state nondiscrimination bill that included LGBT employment and housing protection but excluded public accommodation protections. Ms. Keisling explained that trans people “really need” housing and employment protections, “desperately, and can’t wait any longer.” She urged support of bills without public accommodation protection, not as a general strategy but limited to “specific situations where comprehensive bills have already failed repeatedly.” She emphasized that “NCTE has in no way given up on the ‘bathroom fight.'” Mara also stated that “NCTE never has and never will let another organization, including any funder, dictate our policy positions.”
I’ve known and admired Mara for many years and am grateful for her tireless advocacy for the trans community, but I disagree with the position she’s taken on this issue. Here are my concerns with Mara’s response and the NCTE position on reducing public accommodation human rights to a bargaining chip in LGBT anti-discrimination legislation:
(1) Reassurance that NCTE policy positions are not influenced by major funders would be more comforting if NCTE were not substantially supported by the primary force behind the public accommodation compromise: the Gill Foundation, founded in 1994 by software millionaire and gay rights activist Tim Gill to oppose Colorado Amendment 2. Most troubling, Buzzfeed reported that the Gill Foundation cut support for the ACLU National LGBT Project in retaliation for publicly opposing the Pennsylvania bill without public accommodation protection. In 2015, NCTE received grants totaling $75,000 from the Gill Foundation. This was 7% of NCTE’s total 2015 contributions and grants.
(2) This compromise strategy is not a neutral decision with respect to balancing cis-GLB vs trans rights. Surrendering public accommodation protection disproportionately harms transgender Americans, particularly at-risk trans youth at the moment that their fundamental human rights are under unprecedented attack by nationally coordinated theo-political hate groups. The social and political context around transgender civil rights have been rewritten by these attacks in recent months. For the most vulnerable homeless trans youth who may not survive to cash a paycheck or sign a mortgage, it erases space for them to exist in American society– to use a restroom or attend to the most basic personal hygiene. This compromise strategy has been defended as “incrementalism;” but it’s more like horizontal minority scapegoating. The ACLU said it best in their June 10 memo:
“…dropping public accommodations now, in the midst of the current in-state and national conversation surrounding transgender people and restrooms/locker rooms, is compromising on critical protections because they are controversial…now is the time to vociferously defend the right of transgender people to use sex-segregated facilities in accordance with their gender identity.”
(3) Acquiescence to Trans-crow public accommodation discrimination in human rights legislation is acquiescence to the horrendous false, sexualized stereotypes that underlie it. This weakens the case for employment, housing and all other rights for trans and other LGBQ people as well. As the ACLU put it:
“…passing a bill with a limited scope sends a message that public accommodations for LGBT people is politically toxic, and perhaps most troubling, that LGBT advocates are willing to compromise away public accommodations protections that are perhaps most acutely needed by the transgender community. This could cause a domino-effect of similar bills advancing in other states modeled after the ‘Pennsylvania Compromise’. Similarly, this could negatively impact federal strategies to pass explicit protections for LGBT people in employment, housing, and public accommodations.”
(4) This strategy triggers painful memories of the exclusion of trans people from the federal 2007 Employment Non-Discrimination Act. In both cases, transgender human rights were sacrificed by powerful cisgender kingmakers when politically expedient; and in both cases defamatory Raymondian stereotypes demonizing transgender women as posing “risk” to cisgender women in public spaces were in play. In fact, Mr. Gill’s strategy today bears striking resemblance to U.S. Representative Barney Frank’s 2011 advice for excluding public accommodations in future legislation to “break through” the “issue of transgender inclusion.” Mr. Frank boasted of passing a Massachusetts bill that:
“…does not include public accommodations. It avoids the whole issue of what happens in locker rooms and bathrooms.”
It’s said that those who fail to learn the lessons of history are doomed to repeat them. One difference between 2007 and today is that the Human Rights Campaign is rejecting the public accommodation compromise this time around, and that’s a bit of incremental progress I can celebrate.