"I am not timid," Keisling said of this approach. "This is not timidity. This is about moving the ball as fast as you can."
This week BuzzFeed has published a blockbuster series on the history of the recent trans rights movement. The first, by Chris Geidner, laid the groundwork with the breakthrough Macy decision of the EEOC (Equal Employment Opportunity Commission) in 2012. The second, by Dominic Holden, which has rocked the LGBT community, highlighted the growing rift within the community in dealing with the way forward. The third, again by Geidner, shows that none of the major LGBT advocacy organizations, including NCTE, HRC and the Task Force, made any significant effort to prod the Department of Labor to enforce the Macy decision. That NCTE, the national trans advocacy organization, didn't, may come as a surprise to many.
I've lived this history, and I'd like to tell my part of this story, because it didn't begin today or this past June when the battle erupted via correspondence. Its roots go back to the days after that Macy decision.
I've reported before how the trans leadership was breathlessly awaiting an EEOC decision which came with the Macy v. Holder case in 2012. The community debacle around the introduction of ENDA in 2007, which cemented the inclusion of the trans community in the LGB movement, highlighted the need for legal action on the federal level. NCTE, which had been working with the Obama administration and had advocated for the growing inclusion of gender identity protections within government agencies and departments, was just as eager as others for that legal decision.
The decision went public on April 23, 2012, in a story broken by Chris Geidner, then with Metro Weekly. My colleagues and I recognized the "sea change," as it was described by NCLR trans attorney and marriage equality advocate, Shannon Minter. My colleagues, that is, no longer including Mara Keisling, the Executive Director at NCTE. This became clear to me after speaking with Julie Turkewitz of The Atlantic for 90 minutes at the Philadelphia Trans Health Conference a few weeks later, when I explained the far-reaching import of this decision. Upon reading her article, however, I discovered that she had got it wrong.
While the decision applies only to federal employees, courts typically use these announcements as guidelines in other cases.
This is a very constipated reading of the reach of EEOC decisions, and she wrote what she did after checking for a second opinion from a lawyer, as I am not one. That lawyer was Lisa Mottet, the Trans Civil Rights Project attorney at the Task Force, who got it wrong then, and still gets it wrong today. She is the source of this rift in the community, which began back in 2012, and was exacerbated a year later when she left the Task Force and joined NCTE.
A little personal history diversion -- I was a board member at NCTE for six and half years and was extremely proud of the work done at the group, particularly that of Director of Policy Harper Jean Tobin. I left in 2013 when I had exceeded my tenure and was increasingly dismayed by the turn the organization was taking, which included remaining silent on Macy and bringing in Lisa Mottet without transparency.
During that time, Mara became unsatisfied with the great progress for which they were responsible on the federal level, and decided to branch out to statewide advocacy, the field in which Lisa had been active and very successful for a decade while working at the Task Force. But unlike the old days of the aughts when we in the states -- in my case, Maryland -- would invite in legal advocates such as Lisa, Jennifer Levi and Liz Seaton, NCTE decided to intrude without being invited.
"Incrementalism is how policy gets done while other people are whining about incrementalism," she [Keisling] told BuzzFeed News. "We have made it an article faith over the past few years that if a bill lacks public accommodations, it's useless. That's not true."
A little more personal political history is needed here. In 2011, because of unforeseen circumstances, we had the HB 235 fiasco in Maryland where public accommodations was stripped from the bill at its conception by a Deputy House Majority Leader. The community was divided, and outsider agitators attacked those of us who had chosen to proceed and do the best we could. No one was timid; we worked with the hand we had surprisingly been dealt. None of the national organizations defended us, including NCTE, which now praises incrementalism.
We took the opportunity to educate the legislative community that trans persons were not the same as gay ones. While we failed, which was ultimately a good thing, we had proven ourselves to the legislators, lobbying colleagues and, most importantly of all, the Senate President. We had taken the bill to near victory on the final day of session, and we did it under the radar while our gay colleagues were busy promoting the marriage equality legislation.
The following year it was all gay all the time, and after the passage of marriage equality in 2012 the Senate President was good to his word and allowed us to proceed on the gender identity legislation. At that point, Gender Rights Maryland, where I was the Executive Director, had been in existence since the end of the HB 235 fight, and had led the campaigns, with the help of the local PFLAG groups, which passed laws in Howard and Baltimore Counties in 2011-2012. Equality Maryland, which had fallen on very hard times with the failure of marriage equality in 2011, was reconstituted in weakened form and lined up against us. Gender Rights Maryland and MD PFLAG sat along one side of the conference table, and Equality Maryland lined up with both HRC and Lisa Mottet on the other side.
We didn't get along, to put it mildly. The important point for this current story is that Lisa had introduced an amendment to the bill in 2013 with the approval of Equality Maryland. That amendment was dubbed the "Pull Down Your Pants" amendment by our non-LGBT advocacy colleagues, and was considered so toxic by the community that it was voted down overwhelmingly in a community meeting that was called shortly thereafter at First Unitarian Church in Baltimore on February 24, 2013. When I asked Lisa why she had chosen to introduce that language without our approval, she told me it was a test to find language that she could later use in states like Utah and Montana, and to defer efforts to petition the law to referendum. So basically, she assumed that since we had failed to pass the bill for six years, she, with the approval of NCTE which she was about to join, would use Maryland as a laboratory for other, redder state, campaigns. No, thanks, was the community's response, as described above.
We at Gender Rights Maryland just put our heads down and worked the bill again in 2014. My team, with the assistance of future Congressman Jamie Raskin, who came out of LGBT advocacy retirement for one final push, finally turned the remaining three Democratic members of the Senate Judicial Proceedings Committee. The bill sailed through the Senate with the President's blessing and support, and with seven more votes than marriage equality had received, and then the House. Mind you, this was a comprehensive bill with public accommodations protections, and not the HB 235-like bill NCTE wants to promote today in Pennsylvania and elsewhere.
Focusing back up to the national level, NCTE had continued its silence since 2012 regarding the Macy decision and follow-up victories. I wrote about it a number of times, and they only changed their public tune when the National LGBTQ Task Force went off the deep end (the influence of Lisa Mottet apparently remained strong at that venerable institution) on this issue. Then, again silence, even after the Lusardi victory in 2015, and the Baldwin win on sexual orientation protections at the EEOC (the "gay Macy") later that summer. It took North Carolina's Governor Pat McCrory's midnight signing of the now-notorious HB2 to force NCTE to publish two FAQ sheets to apprise the North Carolina trans community of its federal rights. I believe that had NCTE (along with its new allies at HRC) been educating the community for the previous four years as was their responsibility, then the fear in North Carolina would not have been as profound.
That brings us to today. Just as the rise of the fascist ethnonationalists who've taken over the Republican Party has scrambled the general political status quo, today we see the same in the LGBT community. HRC, which had been disinterested at best and hostile at worst towards the trans community for decades until this current decade, and which aligned with NCTE from 2013-2015, is today to the left of NCTE and has joined Lambda Legal, the ACLU and the Trans United Fund in its opposition towards the incrementalism of shearing off public accommodations protections. Allied with NCTE is the Transgender People of Color Coalition (!?), the Log Cabin Republicans, Equality Pennsylvania, the Republican American Unity Fund, Gill Action and its subsidiary group, Freedom for all Americans (FfaA).
I've written how FfaA (Freedom for all Americans) has been opaque in its strategic actions, and this is the result. I want to say that I have no problem with working with what's left of the Republican Party. Back before the rise of the Trumpkins, Freedom to Work (which actively lobbied the White House and Department of Labor, as shown in the Geidner emails, to protect trans federal contractors based on the Macy decision) actively lobbied Republicans on the Hill for passage of ENDA, the only LGBT group other than National PFLAG and the Log Cabin Republicans to do so. Until everyone becomes pro-equality, we will still have to work with the opposition. But based on this Holden report it sure seems that Republican money is currently determining the strategy that will have a profound effect on future advocacy.
I don't believe, as some of my colleagues do, that this current division will ultimately harm us in the courts. The even greater division in the immediate aftermath of the passage of Prop 8 had no such detrimental effect. I don't expect a trans case to be considered by the Supreme Court, at least until they're at full strength, and probably not until the typical lower circuit court of appeals split occurs. That hasn't happened, and I don't see it happening any time soon.
What is at risk is the growing acceptance by non-queer Americans of the trans community. We've witnessed remarkable and unexpected support from our neighbors, (note this new deodorant ad) including those in the media in the aftermath of HB2. To turn on the defensive now seems terribly foolish and a squandering of momentum. No, we won't win every battle. Laws have been put to referendum, as the recent Massachusetts public accommodations law will be, and we will continue to fight and educate. Those fights are useful vehicles for the necessary public education. There's plenty of fear-mongering in our country today, and we're the targets of some of it, so we must continue to fight.
One minor point -- the Massachusetts public accommodations law was no "capstone," as described by FfaA. The bill should never have been passed in truncated form just a year after the Maryland debacle, in one of the bluest states. That victory was not worthy of adulation, and it took them five years to complete it.
Finally, I hope this experience brings clarity to movement leaders who've looked to trans leadership for support in their pro-equality work. Just because NCTE says it, doesn't make it right. You can disagree with Mara and live to tell the tale. They're not the only kids on the block (we now have the Trans United Fund, the Transgender Law Center, TLDEF and a host of unaffiliated, experienced trans activists) and NCTE has been been getting it increasingly wrong these past four years.
Back in 2013 when Mara and I began disagreeing, we sat down to talk and I asked her what her real problem was with me. She answered candidly, "You're not accountable to anyone." She said that because I was not dependent on any donor money. Gender Rights Maryland was a shoestring operation, rejected for funding by both HRC and the Task Force. And yet we got laws passed, which infuriated the professional non-profit class.
So, no, I wasn't accountable to any donors, as NCTE and its coalition partners today are to Paul Singer and Tim Gill. I was accountable to my organization, my community (we held town halls, listened and followed the desires of the community), and my conscience. It's worked for me -- I have no reason to be timid -- and will work for others. It's time to hold everyone accountable.