Maryland nondiscrimination bill marks potentially life-saving advance
By Mara Keisling, Executive Director, National Center for Transgender Equality, and Lisa Mottet, Transgender Civil Rights Project Director, National Gay and Lesbian Task Force
An important thing we have learned from Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, that our organizations released in February, is the high human cost of discrimination. It is no exaggeration to say that discrimination is literally killing transgender people. In addition to the shocking rates of discrimination reported, there were unconscionable amounts of violence perpetrated against transgender people. For the many who have lost a job or become homeless, rates of HIV infection, drug and alcohol abuse, and, ultimately, suicide attempts, skyrocketed. What is the historical perspective?
The first state passed a trans-inclusive nondiscrimination law in 1993, the second in 2001, and 11 more states (and D.C.) passed protections in the four years between 2003-2007. And, we now have more than 125 cities or counties with protections as well, with 41 percent of the country, by population, covered with a law. Even though we have not passed a statewide law in almost four years since 2007, this is tremendous progress.
Sometimes passage in these states and cities was easy, and sometimes, quite difficult. Many times, the law didn’t go as far as many would have liked. In fact, almost every local ordinance or state law that has passed has some imperfection, weakness or compromise— some small, some quite large. But they have represented important progress that we were collectively able to build upon.
Maryland’s nondiscrimination bill
In Maryland this year, we have strongly supported the transgender nondiscrimination bill (HB235) that would ban discrimination in employment, housing and credit. Yet, oddly, this bill has become a bit of a lightening rod as some transgender people, especially those outside of Maryland, have attacked it for its lack of coverage of public accommodations. Certainly, a few transgender Marylanders have also expressed concerns about the bill and have opposed it (two testified against it), but the vast majority of transgender people in Maryland are supporting the bill. Transgender person after transgender person — 14 in all plus three loved ones of trans people — testified in favor of the bill at a House of Delegates hearing last month, with several telling stories of discrimination so harsh that those listening were tearing up at the inhumanity of this discrimination.
Baffling legal inaccuracies floating around the Internet
In the process of opposing the bill, some people have made up or repeated incorrect information about what the bill would and would not do; in fact, the rhetoric reminds us of the charge that “death panels” were part of health care reform (that law passed Congress a year ago and, of course, death panels are nowhere to be found). Thus, many folks who believe they are against the Maryland bill are against it because they don’t know the legal facts. Here, we hope to provide accurate information so Maryland transgender people can understand the rights they may soon have.
- Employment protections: This bill would give transgender Marylanders robust employment protections, including the right to sue and the right to use workplace bathrooms. Transgender people would gain the right to sue if fired or not hired, harassed or otherwise discriminated against on the job. If a transgender person prevails in court after being discriminated against, they would win attorney’s fees and costs, plus back pay, compensatory damages up to $300,000, and also, in some cases, punitive damages. The court could order that the victim be given their job back. These are the same remedies that are available under federal law for race, sex and other types of discrimination.
- If a discrimination victim does not have money to hire an attorney, they may instead file a complaint with the Maryland Human Relations Commission. The commission processes claims of discrimination, investigates them and holds hearings. They also issue rulings on these claims, and can order a discriminatory employer or housing provider to pay the same types of monetary awards and award a person the same type of relief as courts can, such as restoring the employment.
- Bathrooms at work are not an excluded “public accommodation”; legally, they are part of employees “terms and conditions” of employment, and thus have to be available to all employees, including transgender employees, in a nondiscriminatory manner. This is even true in workplaces that are also public accommodations such as retail establishments and restaurants.
- Likewise, employers who also offer public accommodations to the public would not be able to lock employees out claiming a right to exclude them from the establishment.
- Housing protections: The bill would also give trans people the right to sue if denied rental housing, rejected from buying a home, evicted due to their gender identity, or denied shelter at an appropriate homeless shelter. The law says a provider of housing cannot “refuse to sell, rent or otherwise deny” access to housing. Using federal case law, the Maryland Human Relations Commission interprets “otherwise deny” housing to include discrimination by homeless shelters. For any violation of housing rights, the law spells out various remedies, such as attorney’s fees, compensatory damages and punitive damages.
- Credit protections: There are also protections against credit or loans being denied on the basis of gender identity.
- Public accommodations: Public accommodations are hotels, restaurants, health clubs, and service providers who are open to the public — places where anyone can walk in off the street and buy something or access a service. The bill would do nothing to existing public accommodations law in Maryland. Nothing would be gained; nothing would be taken away. If anything, employment and housing protections should actually help reduce instances of public accommodations discrimination as employers update the nondiscrimination employment policies. This important cultural shift regarding employment should have a helpful effect on public accommodations discrimination. (No employer would instruct their employees to treat trans employees respectfully but customers in a discriminatory manner.)
- Due to political calculations of legislative allies (see below) public accommodations protections were not included in the bill this year. Had they been included though, it is incredibly important to understand that, in Maryland, there is NO RIGHT TO SUE for discrimination in public accommodations, and including public accommodations in HB235 would not have fixed that. So, if a Latino man, for instance, is denied service at a restaurant, or denied entry to the men’s restroom (not his workplace), he cannot sue the restaurant under Maryland law even though it includes public accommodations protection based on national origin and race. His only remedy is to file a complaint and the restaurant, if found violating the law, would be subject to a $500 fine and a ruling that the restaurant should not discriminate against him again. When gender identity is eventually added to this portion of the law, transgender people will win an important but largely legally toothless right to access public accommodations. When HB235 in its current form passes, there will be no increase in public accommodations discrimination. Wild charges we have read of new “trans Jim Crow laws,” “segregation” and even “trans slavery” are entirely baseless exaggerations that serve no legitimate place in the dialog.
- HB235 passing as written would not mean that doctors and hospitals can refuse to treat a transgender person in an emergency medical situation. There are laws that require emergency personnel to treat everyone who has an emergency medical situation if they are able to do so. Most trans people know of Tyra Hunter’s case in Washington, D.C., (where EMTs delayed treatment when they discovered that she was born male) and it has been cited as a reason for public accommodations protection. Importantly though, her mother primarily won her case on “wrongful death” and medical malpractice. Family members have a right not to have their loved ones “wrongfully” killed, and Tyra’s mom won on that legal claim; the discrimination claim was a small part of her lawsuit, which ultimately resulted in her $1.75 million dollar settlement.
The two of us have worked on more than 100 state and local nondiscrimination efforts and we can tell you that there are political calculations and judgments that are made every single time. The lead sponsor of the Maryland bill made a decision this time to streamline the bill, deleting public accommodations protection because it had been slowing the bill down for several years, making it impossible to pass from her perspective. Her analysis was that it would be years, or more likely a decade, before the Maryland legislature was willing to budge on public accommodations.
The problem is that the extreme right wing has made false accusations around the applicability of these laws to bathrooms and shower facilities for so long that Maryland legislators have largely bought into them. In fact, Montgomery County, Md., is the one place in the country where the right wing used this strategy (in 2008) loudest and most successfully. While we were able to shut down their repeal effort, based on the technical merits of their signature collection effort, we were not able to succeed before their lies scared a lot of legislators. Of course, the anti-trans people are wrong that transgender people are any danger, but the legislators, at this point, aren’t convinced that the public isn’t worried — and, in fact, the legislators are a long way from being convinced.
Given that calculus, pro-equality advocates, including trans folks, in Maryland decided to support the bill, given the life-saving job and housing protections that are very much needed. Absolutely no one liked that public accommodations protections were removed from the bill, but because the job and housing protections were so needed and because workplace bathrooms are still protected, many have continued to work toward passage of HB235.
Insisting that Maryland have a perfect bill, when state and local anti-discrimination laws never are, would have been at the cost of years of continuing legal discrimination in employment and housing for transgender Marylanders. The vast majority of Marylanders, who are the ones who would have to bear this cost, have chosen to support the bill and therefore we do too. In the National Transgender Discrimination Survey, 41 percent of transgender people reported attempting suicide. Among Maryland respondents of the survey, 43 percent had. Suicide attempts are often about not having hope for the future, a feeling that things won’t improve. Passage of this bill can give people hope that they have a future in Maryland, one that does not involve living on the street and doing sex work to survive or to have a place to sleep.
Where we are now
It appears that the political calculations made by the lead sponsor were at least correct politically, given that this bill has finally passed the House of Delegates (86-52) after several years of not even receiving a committee vote. The recent holdup in the Senate has been resolved for now due to tremendous grassroots and grasstops pressure, and the bill is moving forward. If this bill passes the state Senate, we will begin the next legislative session assertively and proudly fighting for the passage of a public accommodations bill in Maryland. We hope that fair-minded trans people and allies will join us for one last push on this important but misunderstood bill this year, to get these basic, life-saving protections in place. We will have a solid and proven base on which to build even stronger protections. We will be giving trans Marylanders protections and hope. And we will continue building a better place than the discrimination and disrespect we documented in the Injustice at Every Turn report.