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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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