Not the E.N.D.A., But a Good Start
It’s not often we all get something to celebrate, as a community. The Equal Employment Opportunity Commission’s most recent ruling, in favor of a trans woman claiming discrimination, is absolutely cause for dancing in the streets. Every one of their offices are directed to take transgender claims seriously in investigations, enforcement, and litigation. If that doesn’t call for a party, I really don’t know what could.
Not only is it just cause, I believe it should remind us of the responsibility to celebrate.
First though, we must understand what exactly it means, both now and going forward. The link above gives the more thorough historical context that enabled this decision by the EEOC. The upshot is that, like most similar decisions, the EEOC ruled that trans folk are entitled to protections under Title VII on the basis of legal precedent set by previous court cases. These cases gradually enabled courts to take a broader interpretation of gender based discrimination which includes expression and identity.
And like the title of this article suggests, this isn’t perfect. Federal courts are major ideological battlegrounds, where a new partisan appointment can mean a narrow majority twisting precedent to suit its preferences. And if you have a tendency to trust courts when it comes to protecting employees against employers generally… were you aware of how it’s become near impossible for class action lawsuits to even be filed now, on the basis of something like gender?
We have to remember also how equal opportunity is not binding on every business out there. Many “small” businesses are excluded, and you can bet there are plenty of businesses out there which are classified as small in the same way that a fast food joint may make you a “manager” so they don’t have to pay you overtime.
Further, there are only 53 offices, nationwide, to hear all claims of discrimination. The United States doesn’t even have enough people working enforcement for the IRS to collect its own money, so how effective do we think our EEOC offices are? Someone already has to be aware of these offices, brave enough to pursue their protection, organized enough to give them a case they’ll put their limited resources behind, and even then a court may say no, for reasons that are sometimes only rationalized as legal.
Daunting stuff, but I’m still hearing champagne corks popping, and think we should all raise a glass.
Celebration is called for, not despite the remaining challenges or the frustratingly difficult process behind seeking protection, but precisely because of those things. The fact that a bi-partisan committee voted unanimously for this is amazing, the promise it holds for the future, near and distant, is inspiring, but again it is our long suffering that makes me cheer.
That is because, until this decision, that suffering and that injustice, the predatory or ridiculous stereotypes of us, our constant enforced and self reinforced identity as victims has been basically the only way we were understood or presented to the world. Whether benign or malignant in its language, whether you were in fact a privileged celebrity like Chaz Bono, or living with the same challenges as CeCe McDonald, you were cast as a victim, and only a victim, in the national discourse.
There is a rich variety of ways someone can be termed a victim, of course. We have been called victims of mental illness, in need of “cures”, often violent and traumatizing forms of tough love. Or victims of abuse, which led to our “confusion”, and makes us likely to perpetrate abuse through misrepresenting ourselves everywhere from relationships to bathrooms. Completely disempowered victims of bigotry is a favorite of those liberals who think we should have human rights, but wouldn’t want us in their families, aren’t comfortable with working alongside us, or think we need cis folk to represent us, or explain to us how our cause should be managed.
And obviously, the victim frame is still ascendant. It hasn’t yet been beaten, nor are we likely to very soon see the year when a Day of Joy is taken as seriously as the Day of Remembrance.
But here is what we are going to see. More lawsuits where trans folk are arguing for their own right to contribute meaningfully to society and experience the dignity of work. Many, maybe most, of those cases will be brought by transfolk who are privileged in other ways, like class or race or education. However, as economists studying cuts to government employment have pointed out before, those cuts disproportionately impact communities of color, because so many depend on these jobs. So we can expect more diversity in the cases.
This also means more trans folk in the news for doing something other than entertainment, or accused of crimes. The case that precipitated the ruling involved a trans woman applying to work for the Bureau of Alcohol, Tobacco, and Firearms. This woman fought for her right to prevent crime. This is another vital piece of the diversity we have always had, and now will have an easier time showing.
In short, we are now going to find it easier to argue from positions of strength and without having to make appeals based on our status as pitiable. We will have more opportunities and platforms to argue from pride, and exhibiting our potential to be more than their stereotypes can contain.
And after all, what are we trans folk if not those who know how to resist arbitrary assignments with all that we know we are, no matter what others say?
Maybe that sounds grandiloquent. As I said at the start, though, I believe we have a responsibility to celebrate now, not just a good reason. That is because we will get to that better place with triumphant cheers and the unshakable certainty that we were always going to get there, not by mourning and hoping that if we stack enough victims on top of each other, eventually we might see sunlight.
Grieving matters, and we will have more ahead. This isn’t a false dichotomy where we choose one or the other. Rather, this is a call to remember also the fullness of who we are, that there are things to celebrate right now, joy is not always something far off, and that if we want the arm of this country’s moral compass to finally point towards a home we can all share, then let us live these lives we want saved and honored and respected.
And also sue the pants off some bigots, because that’s pretty fun too. If you’re a client, the Transgender Law Center certainly lives up to their snuggly acronym (who doesn’t need some TLC now and again?), but woe betide their opponents now. Strongly consider making a donation to them, readers.
Ultimately, no, it isn’t ENDA, but it is definitely the beginning of the end. Meanwhile, let us do our best to love the journey as much as we can.