Whenever a state introduced same-sex marriage, the community encouraged couples to get married, not only for their own benefit, but to create a growing number of couples to show the country how important, and non-threatening, marriage equality was. It was akin to encouraging individuals to come out of the closet.
When the EEOC began recognizing that discrimination against trans persons was a form of sex discrimination, the community was nearly completely silent. When cases began being won, the silence continued; the issue was avoided when it wasn't being misrepresented. Even with the declarations of the previous and current Attorneys General, there has been no celebration, nor any effort to promote this form of equality. There has been no "Go and sue!" as there's been "Go and get married!"
Last week, while people were celebrating the freedom to marry all across the country, the nation's leading newspapers were already writing stories about future campaigns. The New York Times, Washington Post and LA Times all chimed in. The LGBT media, as usual, was several steps ahead, and activists have been discussing what's next ever since it became evident that marriage equality was probably a done deal.
The New York and LA Times both recognize that federal law already protects trans, and, increasingly, gay persons, but because we're not publicizing it, they minimize the impact of the changes that we've seen over the past four years. In the past two years alone the EEOC has successfully pursed to either court victory or settlement 223 such cases. Yesterday I heard of another here in the DC area where the EEOC scored a big victory for an African-American trans woman, who knew her rights because she had heard me speak of them. The first such settlement after the landmark Macy decision in 2012 which, for the first time, considered trans persons covered under Title VII of the 1964 Civil Rights Act, also happened here in the 4th Circuit in Maryland.
Unfortunately for the general public, and the LGBT community in particular, the settlement agreements often preclude public discussion of the cases. This is one reason why these protections are not more widely known. But the LGBT community, while no longer ignoring the Title VII coverage, continues to minimize it and refrains from promoting it in an effective public service campaign. The latest is the Center for American Progress, which updated its discrimination report post-Obergefell and, again, made no effort to educate the LGBT community about the rights it currently does have.
Then there was the Human Rights Campaign's David Stacy:
With limited or no federal protections, an LGBT person can get legally married in most states, but then be evicted from an apartment and denied a home loan.
And HRC President Chad Griffin:
While this was a monumental leap forward in this country, we still have a long ways to go," Griffin said. "You know, in a majority of states in the country still today, after this ruling, you can be married at 10:00 a.m., fired from your job by noon and evicted from your home by 2:00, simply for posting that wedding photo on Facebook. And so, as you look at the battles ahead, we've got to bring full and comprehensive non-discrimination protections to everyone living in every state in this country and that's the next battle in Congress.
There are no longer any sound reasons for all this jiggery-pokery (or pure applesauce, if you prefer another of Justice Scalia's colorful sarcasms). It's disingenuous, it misrepresents the current situation, it deprives activists of a tool which will help get a full civil rights law passed and it insults those in the administration who've worked hard to get us the existing protections.
The administration champions include:
Equal Employment Opportunity (EEO) Commissioner Feldblum on the current situation:
I so appreciate that the media coverage of a need for a new explicit law protecting LGBT people includes reference to the fact that EEOC has been applying sex discrimination law for some time to protect LGBT people. Both the LA Times and the NYT correctly note that. Neither quite conveys the point, however, that the relief we have gotten for the 200-plus people we have helped has been outside the court system -- through mediations and informal settlements. The chart here gives you the breakdown of that: http://ow.ly/OTzN4. That's so important -- it means people have gotten help without having to go through the courts. But the EEOC could not have even done that without the federal law prohibiting sex discrimination. So it's a two-track process: use existing law to the utmost AND push for a new explicit law.
She is, as usual, being polite. She's an EEO Commissioner, after all. But the frustration is evident.
Here's another -- the Attorney General, Loretta Lynch, at the Lambda Legal reception two weeks ago in DC:
Lynch also noted -- to the applause of the audience -- the Justice Department now interprets the gender protections in Title VII of the Civil Rights Act to cover anti-trans discrimination.
Tico Almeida, President of Freedom to Work, exhorts:
Let's go back to the Supreme Court for another win! This WashPost chart shows how our LGBT movement has won more victories by litigating vs. lobbying. The lesson is to return to the federal courts now with LGBT litigation challenging workplace and housing discrimination as sex discrimination banned by the Civil Rights Act, Fair Housing Act, etc. Maybe a Supreme Court decision for June 26 -- our new holiday -- two or three years from now (which will be sooner than the House of Representatives holds an up-or-down vote on a comprehensive LGBT bill).
I continue to wonder what it will take to convince the movement as a whole to broadcast this news out loud. For those who still demand that the trans community is not protected until the Supreme Court rules (and they never claimed the marriages in the 37 states with the freedom to marry before last Friday were invalid, or just not good enough), here is Justice Kennedy's opening in Obergefell:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity [italics mine]
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He then related the history of gay rights in overthrowing the psychiatric community's designation of gay persons as mentally disordered, a history which recently repeated itself with the trans community. And he added:
Under the Due Process Clause of the Fourteenth Amendment, no State shall "deprive any person of life, liberty, or property, without due process of law." The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.
In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs [italics mine].
Justice Kennedy has now extended those protections to gay men and women beyond marriage, and the trans community can feel hopeful that a similar reading of fundamental liberty will cover us as well should a case ever make it to the Supreme Court, which is not necessarily likely.
With trans persons successfully covered under Title VII, and now gay persons increasingly as well, do we still need explicit federal and state protections? Of course. as Commissioner Feldblum intoned. Explicit is always best, and no one has ever suggested otherwise. But I have learned that it is far easier to convince a legislator to support a civil right with the legal backing already in hand, rather than asking for a groundbreaking act of courage. Such profiles in courage are few and far between.
With efforts in Congress underway, led by Senator Merkley and Congressman Cicilline, and a state-by-state campaign called Freedom for All Americans gearing up to persuade Republicans in red states, and being led by Tim Gill and Paul Singer, let's not forget to use all the tools at our disposal.
And let's encourage the trans community, and those gay persons who get married on Saturday and fired on Monday, to file suit on Tuesday to bring about the expansion of liberty and justice for all envisioned by the Court majority last week.