I've written many times about the importance of educating the trans population about its rights, and the failure of our national (non-legal) advocacy organizations to do just that. There is a corollary failure that derives from that silence, and that is the perpetuation of the implicit, hidden biases of our gay allies as well as the nation at large.
Actions have consequences, non-actions just as importantly as actions. Not only don't those who could be providing support and services to our community know their obligations under the law, but allies who could be helping, who want to help and support the providers, remain disarmed, prisoners of their hidden bias.
I am writing today about an example from the Southeast, but it assuredly applies to many regions under consideration throughout this country as well.
As health care providers commit to providing full-service to the trans community, they may be anxious about doing so because of implicit bias, which is enforced by misinformation about the legal protections already in place that will support their actions. As a result, those who are moving forward, who are trying to do the right thing, are doing so in a vacuum, oblivious to the state of the law in their jurisdiction.
Five years ago the 11th Circuit Court of Appeals, in a case called Glenn v. Brumby, with Vandy Beth Glenn represented by Greg Nevins of Lambda Legal, ruled that trans persons were protected under the Equal Protection Clause of the 14th Amendment to the United States Constitution. No other Circuit has yet been as bold, though progress continues to be made, the most notable the cascade of successful outcomes spurred by the EEOC victory five months later in Macy v. Holder regarding employment protections under Title VII in all 50 states. With respect to the provision of health care, the subject matter of this column, we now have Section 1557 of the Affordable Care Act as well.
Providers in the 11th Circuit may be unaware of the firepower at their disposal should they run into opposition in roiling out their programs. What is natural reluctance to develop a program in a community where some may rise in opposition is particularly unfortunate because this community already has the gold standard in trans legal protections. Major corporations in the region have inclusive policies. If there is ignorance of this fact by all the players, the process may be slowed by unnecessary anxiety about potential reaction, and people continue to do without.
There are times when a legal victory, or even just the effort to obtain one, helps change the culture to a sufficient degree that the law becomes of secondary concern. We don't have an Equal Rights Amendment, nor does the Civil Rights Act of 1964 protect women in the public sphere, but most people have believed the reality to be inclusive so that over the past half century they have acted accordingly. Their implicit sexism has been sufficiently overcome to allow them to act in a positive manner. That is the ideal outcome for any civil rights movement.
The key, though, is that people need to see, and they need to know. We've won so many victories, but our failure to promote those victories and in so doing change the culture at a fundamental level limits the impact of each success, as well as offends those who risked so much to get us there in the first place. When we should be grateful, we remain silent. When we should be promoting success and empowering our community, we let them remain in the dark.
When a person doesn't use her muscles, they will atrophy. When she doesn't use her brain, it will atrophy. When a community doesn't build on its successes and strengths, it leaves itself vulnerable to counterattack and an increased chance of failure in the future. Bias can fester and erupt, as it has during this political season. On the other hand, confidence begets confidence, and bullies do not target those who appear strong.
We need to be strong, and build on our strength, so that more allies will arise and one day in the not-so-distant future we will all be sitting home wondering what all the fuss was about. Moving forward there may be other health care providers in the Deep South who will see that doing their job well will help bring about a healthier, more unified society. That example may then spread across the country to other underserved areas. I hope that day comes a little bit closer in the 11th Circuit as a result of just a little bit more self-confidence and assurance.