Today, we move one step closer for the transgender community being upgraded from fifth-class citizens to forth-class citizens. Their counterparts in the gay, lesbian and bisexual cis-gender community are currently enjoying third-class status.
While today’s vote moves some protections forward, they are insufficent to maintain basic employment protections when the workplace is not a private office. This bill provides no protection for those employed as drivers, those who use hotel rooms as a part of their jobs or those who work in environments where restrooms are common among multiple employers or in a public access area. Despite housing protections, the current bill language does not protect gender identity to assure admittance in emergency homeless and domestic violence shelters or will result in people being placed in the shelter area based on their birth gender and not their identified and presented gender subjecting them to the risk of sexual assault. The federal courts have already stated that emergency overnight shelters are considered “lodging” and therefore a public accommodation not subject to the Fair Housing Act.
The organizations promoting HB-235 are using an incrementalism strategy to eventually achieve public accommodations. I personally do not think that public accommodations could stand on its own as it would be seen as a sole “bathroom bill”.
The only other state that has ever used an incrementalism approach is California and they learned very quickly that employment without public accommodations did not work. Gender identity was eventually covered under the Unruh Act not by adding gender identity as a protected class but by changing the definition of “sex” to include gender identity.
This law as written is going to open the door to litigation by transgender people who work in environments without non-exclusive public facilities or are required to use off-site public accommodations in the performance of their job functions. This will put an undue burden on employers that now have to field discrimination complaints internally within their own organizations. This is wasted time.
This will only make employers not want to hire transgender people but find another reason not to.
We are at a time when many transgender people are out of work not just because of employment discrimination based on gender identity but also due to the general state of the economy, no guarantees that public or private facilities can be accessed to look for work, no guarantees that access to public transportation will be granted and the lack of access to higher education due to discrimination and harassment.
If this bill passes, we are sending the message that it is OK to discriminate public accommodations. Even though it is OK to discriminate right now, this law will only highlight the alleged legitimacy of denying transsexual and intersex people access to the basic functions of life.