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Legal Advisor

Transgender Docket:
Lawmakers Begin To See The Light

By Carolyn Woodward

Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at Carolyn75@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.

Hi there everybody. I'm back after a two month break. I wasn't exactly goofing off. Things were hectic at the daily grind. Also, for those of you who don't know, I am a practicing thespian (no, that means actor), and I had a show to do. Now the show is over, and back to work.

I've been seeing some material lately regarding local legislation that looks promising, and I wanted to bring some of it to everyone's attention. The first one the laudable action of the Evanston Illinois City Council, which amended their Human Rights Ordinance, prohibiting discrimination in employment, public accomodation, and housing. I'm sure everyone is familiar with such statutes. They exist at all levels, including federal, state and local. They forbid discrimination because of attributes such as race, religion, national origin, sex, age or disability. The Evanston City Council amended their local ordinance to include the transgendered.

Also in Illinois, in the city of Oak Park, an ordinance was adopted permitting registration of same-sex couples. It doesn't confer any benefits, but it does take the first step of starting to recognize the significance of families of every configuration.

Closer to home, for me, is an ordinance in Santa Cruz which prohibits discrimination against any person on the basis of race, color, creed, religion, national origin, ancestry, disability, marital status, sex, sexual orientation, personal appearance, height, weight, and physical characteristics, among a few others. Significant for us, is that the definitions section of the ordinance has been written to equate gender and sex, and that the definition of sex in the ordinance "shall be broadly interpreted to include persons who are known or assumed to be transgendered."

These are just some of the more current laws passed to address the problems of discrimination faced by those who are gay or transgendered. But they are significant in that they give formal recognition to the fact that gender and sexual orientation are not bipolar issues, but a spectrum. They recognize that the people who don't fit the supposed "norm," (clearly male or female, clearly heterosexual) are human beings who are productive members of these communities and deserve to be protected from unfair discrimination.

What will these accomplish? Well, I doubt we will see any affirmative action programs for the transgendered, but such statutes do grant a means of redress to those who do experience discrimination. Offenders can be prosecuted and fined. The Oak Park ordinance will not force insurance companies to treat the registered couple as married so as to provide benefits to the partner of an employee. However, if enough ordinances are passed, or the matter becames law at the state level, then perhaps such inclusion could be required of any company doing business in that state.

There are possible legal snares. (Aren't there always?) For instance, many of you may recall that San Francisco passed non-discrimination ordinances regarding sexual orientation. The courts have overturned the ordinances because of a doctrine called pre-emption. This means quite simply that if a state statute addresses the issue, then it is considered to pre-empt the field so that it becomes the last word in the state. No city or county can pass laws which change the state statute - the Fair Employment and Housing Act in California. (It works that way between federal and state as well.) The exception to this doctrine exists when the statute specifically permits local laws which expand the scope of the law, but do not attempt to abrogate any portion of it. A bill (A.B. 310), which includes among its many positive provisions one to permit local ordinances such as those enacted by San Francisco and Santa Cruz, is currently working its way through the state Senate. I'm hoping it passes.

Despite these and other potential problems, we have a beginning, the first tentative steps of a journey still long and perilous.

Perilous, you say? Well, sure - bigots will be bigots despite the law, and as the laws encourage those who are gay or transgendered to come into the light of day as who they are, the bigots will continue to create problems. But I do hope to see some evolution as such protections as the ordinances provide carry the force of law on broader and broader scales. We can someday hope that inclusion of gays, bi's, and the transgendered will be ubiquitous as state legislation, and perhaps federal as well. Of course, even better would be the dawning of the day when, although the laws exist, they don't make any difference - acceptance would be a matter of course. But until then, everyone, push for more laws like this, where ever you live.


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