Just as we get word that a case involving transgender bathroom protections is headed to the Supreme Court, we also learned this week that some movement leaders are signaling retreat on the core issue of nondiscrimination protections in public accommodations.
Essential reporting from BuzzFeed’s Dominic Holden revealed a rift between some big donor funded entities like the Gill Foundation and Freedom For All Americans and three major LGBTQ organizations, Lambda Legal, the ACLU, and the Human Rights Campaign (HRC). During a 90-minute call among about two dozen lead advocates, Holden writes:
One faction argued they could make gains with Republicans by accepting a compromise. In particular, several supported a bill in Pennsylvania that would ban LGBT discrimination in workplaces and housing — but not in public places, like restaurants and stores. Many on the call believe this could emerge as a model for other swing states where they’ve hit barricades — namely in Ohio, Florida, and Arizona.
By dropping public accommodations from the bills, they would mostly avoid the bathroom issue and religious objections. Transgender people, like LGB people, would be covered in housing and employment. But such a deal would allow, for example, business owners to reject gay customers and require transgender women to use male facilities.
Just to be clear, no one is suggesting enacting protections for lesbians and gays but not transgender individuals. Nonetheless, this is nothing short of a strategic disaster in the making. As Lambda, ACLU, and HRC argued, sending the message that, somehow, the bathroom issue (i.e. public accommodations) is too hot to handle or that religious beliefs somehow supersede the humanity of LGBTQ Americans threatens all the gains the movement is making in our politics, our culture, and the courts.
Politically speaking, the squishy posturing comes just as Democrats are positioned to potentially make a clean sweep in North Carolina of all the major statewide races for president, governor, and senate. North Carolina was never even expected to be a battleground. In fact, the opening came after GOP lawmakers overreached, targeting transgender individuals in the most intimate of public settings—bathrooms. The GOP legislature also enacted one of the most sweeping and horrific voter suppression laws targeting people of color in modern-day politics. But it was the blatantly transphobic HB2 law that prompted a political tailspin for Tar Heel Republicans as the state lost hundreds of millions of dollars in investment and revenues.
Meanwhile, Hillary Clinton, who has said she would make passing the Equality Act a “highest priority,” will likely be elected by wide margins on Nov. 8 while bringing a raft of down-ballot Democrats with her. For our movement to begin the push for all-inclusive nondiscrimination protections at the federal level by negotiating ourselves out of public accommodations protections in the states couldn’t be a worse opening salvo. The states serve as labs for federal legislation. If we start settling for less there, that’s exactly what we’ll end up with at the federal level.
Less is what women got in the Civil Rights Act of 1964. While that historic law granted employment protections based on “sex” discrimination, it did not include public accommodations protections. They remain absent to this day, which is one of the reasons why any religious freedom law that allows people to deny services to same-sex couples could just as easily allow them to deny services to women for religious reasons. So if an oversight that affects slightly more than 50 percent of the population still hasn’t been corrected more than 50 years later, why in the world would we even flirt with that?
Legally speaking, the Supreme Court will soon be hearing the case of Gavin Grimm, a transgender Virginia teen who challenged his school’s policy of prohibiting him from using the bathroom consistent with his gender. The last thing we need as we prepare for this landmark case is a public discussion about whether the LGBTQ movement believes this equitable access is even necessary, let alone whether it’s a fundamental right assured to transgender individuals by both Constitutional guarantees of Equal Protection and Title IX of the Education Amendments of 1972.
Since we secured marriage equality, we have embarked on a battle that movement leaders have been kicking down the road for years—one addressing gender nonconformity, whether that means you’ve transitioned or it means you simply don’t fit the norm in appearance. It’s an uncomfortable argument for a lot of people in our movement who likely go through their entire day without perfect strangers singling them out as different. So many of our cultural and political arguments have been based on the fact that we aren’t different—that our love is just as human as everyone else’s, for instance. Addressing transgender issues and gender nonconformity head on are not only an admission that we are different, it’s an assertion that our our humanity, however it may present, is just as valid as everybody else’s.
And while that may be a harder argument in some ways than convincing people our love is equal, it’s the one we can’t escape making if we are to move forward.
Public accommodations is, in fact, our biggest vulnerability under federal law. The Equal Employment Opportunity Commission currently accepts employment discrimination claims on the basis of gender identity and sexual orientation under the umbrella of sex discrimination. Our legal advocates have had great success winning sex discrimination claims for transgender workers and they are currently in the process of extending those wins to cover lesbians and gays. Similarly, the Fair Housing Act (Title VIII of the Civil Rights Act of 1968) provides sex discrimination protections that have been interpreted to cover certain types of bias against gay and transgender individuals.
But where we remain completely unprotected is in the area of public accommodations. And the reason we are explicitly vulnerable in that area of the law is precisely because the hole left for women in public spaces by the Civil Rights Act has never been successfully sewn up.
As we have embarked on this new political front, we have lost some battles—in particular, in Houston with the equal rights ordinance. But we have also won some big ones. The Arizona governor rejected her state’s discriminatory “religious freedom” bill because she didn’t want the political headache of signing it. And Arizona kept the Super Bowl in 2015 because of her foresight. By contrast, Indiana Gov. Mike Pence sank his own presidential ambitions and even his reelection by signing legislation granting religious zealots license to discriminate in his state. His acceptance of the GOP’s vice presidential nomination was a Hail Mary at extending his political life. Nice try, guv. And now North Carolina Gov. Pat McCrory faces the same fate. In the absence of HB2, McCrory likely would have skated to reelection. Even if he somehow survives Nov. 8, McCory’s brush with political suicide will have been purely a function of his failure in leadership on transgender issues.
If you haven’t guessed it by now, I’m pretty much apoplectic over this strategic misfire. One by one, we have been facing down egregious measures intentionally designed to give license to our enemies to discriminate against us based on their religious beliefs or their personal discomfort with our humanity at any given hour on any given day. Bullshit. No one’s humanity trumps mine, I don’t care what god they worship or whether they think they are the authority on who’s acceptable and who isn’t.
And for the life of me, I can’t figure out why we’re waving a white flag in this space just as we’re building the narrative of no return for those who have crossed our movement. We can’t head to the Supreme Court to deliver an argument based on fundamental fairnesses that our advocates are negotiating away in state legislatures.
Kerry Eleveld is the author of “Don’t Tell Me To Wait: How the fight for gay rights changed America and transformed Obama’s presidency.”