Guest Blogger

Montgomery County ballot victory more important than it looks

Filed By Guest Blogger | September 11, 2008 11:00 AM | comments

Filed in: Politics, Transgender & Intersex
Tags: employment discrimination, Maryland, Montgomery County, Nan Hunter, scare tactics, transgender, transgender discrimination, transphobia

Editors' note: Nan D. Hunter is a professor of law at Georgetown University Law Center. Her scholarship focuses on health law and state regulation of gender and sexuality. She's the author of Sexuality, Gender and the Law, and blogs at Hunter of Justice.

NanHunter.jpgMaryland's highest court ruled yesterday that the initiative to repeal the portion of a county law prohibiting discrimination based on gender identity could not go forward on this year's ballot. Legally, the ruling (which has not yet been published) appears to have been based on technical aspects of election law - whether the proponents collected enough valid signatures (no) and whether opponents met the deadline for challenging the proposal (yes).

Politically, however, this is huge. It allows the law to go into effect, so that if conservatives seeking to challenge it try again in the next election cycle, they will be seeking to repeal a provision which has caused no problems, rather than being able to use the scare tactics that have characterized their arguments. The chances of voters rejecting the repeal initiative should get better with time.

Most important, this ruling averts the risk of a voter repeal of trans protection in a county which is a suburb of Washington, DC. Because of that location, even though it is only a county law, the outcome of any vote would have a disproportionate impact on every member of Congress. Given the debacle last fall over trans inclusion in ENDA, any loss at this time would reverberate at the national level.

A lot of work needs to be done to get a trans-inclusive ENDA through Congress. But yesterday's court ruling in Maryland eliminates the risk of what could have been a major kick in the gut.

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You think Barney Frank cares about what happened in Montgomery County? He works on his own set of rules and disregards any logical reason or even if every member in the House asked for a fully inclusive bill. We can't apply logic to politics. Just look at Sarah Palin, aka "Caribou Barbie," to see a prime example of that.

I disagree. The campaign to get this measure through was producing some pretty transphobic scare-mongering, and the fact that will have less of a push for it will be good, especially since the Montgomery County was where these tactics were being tested for other areas. It hold that off by at least two years, or forces the religious right to pick on another county.

I'm not talking about what happened in Montgomery County or any place else in the country. I'm talking about Barney Frank. Period. Having 11 (or 13?) states and well over 100 other jurisdictions supporting non-discrimination against trans people didn't make any difference on his decision to throw trans people under the bus last year. You think Montgomery County will tip the scales on the next time he decides? I don't think so.

The cool thing about Congress is that no one person rules the roost. (Even Nancy P. ultimately has to respond to her caucus.) So Barney Frank isn't our only audience here. This is about demonstrating again and again to members of Congress from across the country that there's nothing scary here. No big political risk. And with each state law and local ordinance that is passed -- and stays on the books -- we get closer to victory on the federal level. Thanks for highlighting this, Nan!

Barney Frank is the Chairman if the House Banking and Finance Committee. Every project our government (translate to: "Every House Member,") has to go through his committee for finances. He holds the purse strings, which makes him one of the most powerful men in Congress. And, since he is the only gay man in Congress, then everyone in the House, except Tammy Baldwin, relys on him for what they think is accurate information on LGBT people. If he says trans people shouldn't be protected today and LGB people deserve protection first, then they will drink up his toxic Kool-Aid and vote the way he wants. Only a handful voted against the non-inclusive ENDA and HRC pooped on them for doing so. Barney IS the Gatekeeper to our rights. I'm convinced he would still find excuses to not submit a fully inclusive federal ENDA, even if every state passed one first.

One thing I can't forget is that in the past, Barney Frank himself used the same tactic (restroom/shower scares) that CRG tried to use to get signatures to repeal the protections in Montgomery County.

There were also some irregularities about the whip count which he used to determine there weren't enough votes for the full ENDA.

"You think Barney Frank cares about what happened in Montgomery County?"

He doesn't care about what's happened in all of the states that passed laws that were inclusive in the first instance.

Besides, St. Barney's not going to be around forever. We have to pitch a victory like this at everyone other than St. Barney - like all those people who have supposedly already been 'educated' on trans issues.

I couldn't agree more with Nan. Every time we can get a law like this in place -- and can hold on to it -- the other side has a harder time making the argument that the sky will fall if we prohibit discrimination on the basis of gender identity and expression. And it makes it much harder for lawmakers to say that it's "too soon" or that "we're not ready" to include gender identity protections in pending nondiscrimination legislation. Bravo to everyone involved in achieving this important result in Montgomery County!

In Massachusetts, having marriage become legal for same-sex couples, a similar situation was set up - once it's legal and time passes, people will come to realize their fears were not realized. And opposition diminishes.

BK is dead-on about this. Once time passes, the passion on these things decreases. I also think Nan is correct in pointing out that anything that makes it easier for Congress to act will.

I agree that the victory is huge. And it means that any dollars you were planning to send to Basic Rights Montgomery to fight this initiative can now go to No on 8 to fight the anti-gay initiative on the California ballot.

Nancy, Montgomery County was just one of 3 battles in a co-ordinated anti-T campaign.

There's also Hamtramck, Michigan. There it's a co-ordinated attack by fundamentalist christian and islamic religious groups on human rights legislation.

Just look at the rogues gallery at HamtramckFamilyValue :

If put into law, the ordinance would protect Hamtramck residents from discrimination in areas including housing, employment and access to city services. The ordinance includes wording that would make illegal discrimination based on sexual orientation, gender identity and gender expression.

Opposition to the ordinance, which includes Hamtramck City Councilmembers Kathy Gordon and Abdul Algazali, has also been mounting. Recently, local Catholic Priest Rev. Andy Wesley, pastor of Transfiguration Catholic Parish and Academy in Detroit and also of St. Ladislaus Church in Hamtramck has joined the local Islamic Imam in fighting the ordinance. Wesley expressed his position to the Hamtramck Knights of Columbus group, who have since voiced their support of overturning the ordinance.

They're using the same Bathroom Scare Tactics too. The ordnance is about housing, city contracts and employment, but facts don't enter into it.

The third prong of this campaign is in Gainesville, Florida. Have a look at Citizens For Good Public Policy.

There, they don't just want to repeal the recent Gender Identity Ordnance, they're sneaking in a provision that would repeal long-standing protections for GLBs as well. This is what incrementalism leads to. The Thomas More Law Centre is working there too, as it is in Hamtramck.

So before diverting funds to fight proposition 8, please have a look at these other situations.

I just want to give a heartfelt shoutout to my Montgomery County peeps! MoCo (as the locals call it) has it's ups and downs, but I'm really proud of the county government stepping up and fighting against the Republican anti-gay wing. In recent years, MoCo's board of education had to contend with law suits brought up by PFOX (a radical ex-gay out of state Florida fundamentalist funded organization) that sought to hinder one of the most progressive sex education curricula in the nation which included lessons discussing homosexuality and teaching tolerance to students.

I got involved with, a grass-roots community based group of students, alumnae, parents, and community members to counter PFOX and support the BOE's actions in fact-based sex education. Last I heard the MoCo Board of Ed was able to overpower and implement a great sex education curriculum which includes our community in its discussion.

Way back when during the summer of 2005, I had just finished my freshman year and university, and I had read a news article about the situation and TeachtheFacts and got involved, help organize a group demonstration and appearance before the Board of Ed. That night I testified before the the Board of Education along with my fellow TeachtheFacts supporters, friends, and fellow student and alumns... That was probably my first real experience in community organizing and activism. I left the County government building in tears of joy and a heart filled with accomplishment.

Thank you, Nan for pointing out that local laws are just as important as federal ones. We need activists on all levels of government. It just goes to show what a band of school parents and high school students can do, in spite of thousands of dollars of funding coming from out-of-state right wingers.

Way to go MoCo! Way to make a home grown Maryland Boy proud!

Here's a blog entry on TeachtheFacts' website detailing that formative experience in my birth as an activist.

It's a great victory, although it would have been nice to have the court use some highly principled reasoning about the inappropriateness of voting on civil rights instead of technical details.

Maryland is not a leader on LGBT civil rights issues, but counties helped to lead the way to a sexual orientation non-disc law, so maybe this will push the state to act on gender identity, too.

The folks in Gainesville, FL could use your help and dollars as well. They have a transgender rights law under referendum attack.

With the Reichers losing in Maryland, they will pour whatever money they were going to throw into the MoCo referendum battle here.

Very good point, Monica.

Other Projectors can find more info about Gainsville's fight for equality at Bilerico-Florida.

And Hamtramck, Michigan too. Same situation, and often, the same people.

I think we need better talking points on the Montgomery County court decision. Although it is true that the statute of limitiation issue was huge in our favor, the valid signature issue was not. I don't know any more then anyone else what the Court of Appeals is going to say about our individual signature challanges and they may very well say nothing because they are mute. Even if there is no judgment on the signature issues, the simple fact is after running a very agressive petition campaign including radio advertisements and gathering signatures until their clock ran out, the CRG could not get 5% of the registered voters to sign their petition as the law in Maryland requires to get a referendum on the ballot. The way the information on this has been presented makes it sound like we won on legal technicalities which according to this admittedly non-lawyer who lived and breathed the petition challange from February on, is not the case. We won on merit. If we had lost, which we did in District Court, we would have lost on legal technicalities.

Thank you for highlighting our victory. I'd like to clarify some legal points:

1) Montgomery County has no provision for recalling a law outside of the 90 day window after enactment. They had their shot, and lost.

2) Maryland is not an initiative state, so voters can't place their own laws on the ballot.

3) There is no state process for recalling laws or legislators.

4) We fought the referendum on narrow technical issues on purpose. There was no need to address the content of the law, and that proved to be the correct decision. They didn't have sufficient signatures, the signatures were invalid by the strict compliance doctrine of the state legislature, etc.

Now we won't know the exact procedural details upon which the High Court focused for many months, but we do know it won't be on content (in spite of the fact that the CRG's amicus brief dealt only with me -- go figure).

The critical points about this victory, in my mind:

1) It showed that we can all work together on a trans issue -- gay, straight and trans; Equality Maryland, NGLTF, Lambda Legal, HRC, teachthefacts, NCTE.

2) It stopped the second attack on the sexual minority community by this hate group funded by the Family Research Council in the backyard of DC. They attacked here for a reason -- if they could win in this area, they could hope to influence Congress. So, Monica, I disagree -- while our victory may not embolden Barney towards greater trans-inclusivity, a defeat would have had a very chilling effect on Congress. More importantly, we will have one and maybe two new very trans-friendly Congresspersons next year.

3) And this was the first attempt to roll back a trans-specific civil rights law in this country. It failed. The specifics as to why it failed are irrelevant right now. It failed.

I would like to thank everyone who supported and assisted our cause. You are all worthy of this success.


So true your point about the implications given the inside-the-beltway location of Montgomery Co.

And I will take a technical victory over a bigoted loss any day!

Ruth Eisenberg | September 11, 2008 5:25 PM

Count me among those who see this court decision as a big win - regardless of the grounds. The longer this law stays in place, the more people will see that it is no big deal. In fact, they will start to see it is the right thing to do. Just like once same-sex marriage became the law in Massachusetts, the world did not end. Washington, DC - which adjoins Montgomery County, MD - added gender identity and expression to our human rights law a couple of years ago, and there has been very little publicity or drama.

It allows the law to go into effect, so that if conservatives seeking to challenge it try again in the next election cycle, they will be seeking to repeal a provision which has caused no problems, rather than being able to use the scare tactics that have characterized their arguments. The chances of voters rejecting the repeal initiative should get better with time.

I'd like to underscore that. Because although there is no danger of a second challenge per Dana's clarification, it does mean that this precedent joins many other things that when they became law did not spur the many expected "horrors" they were supposed to. We will be able to point to this ruling and the lack of washroom dramas that followed it in future challenges elsewhere.

... in much the same way that the family unit hasn't died in Canada since legalizing same-sex marriage (and nor has it led to polygamy, etc.), nor will it in Massachusetts and California.

We also need to take better advantage of these comparative statistics.

Every step towards equality counts and as others have stated helps to ease the fears.

I agree that each step helps, the cumulative effect being cultural change that will finally stick.

I agree with Laura, that we need to say that Montgomery County is simply the latest of 110+ jurisdictions with anti-discrimination protections covering 40% of the US population for the categories of gender identity and expression. An attempt was made by Dobson to roll that back, and failed. The specifics are of interest to the lawyers only at this point, except that Dobson may be prepared to bring ballot challenges elsewhere. The fact that there have been no public safety incidents in the regions already covered (and those yet to be covered, as well) did not deter Dobson and Co this time, nor will it probably deter them in the future.

We are no longer under the radar, and while that may make me uncomfortable at times (we accomplished a very great deal of good under the radar), we have graduated to the big time. We can only make progress at this point by being out and proud, and I am deeply touched by those who have stood up and those who have supported us. The world has changed since last fall.

I would also like to point out that Laura was at the Task Force every day for, I believe, six weeks, evaluating over 30,000 signatures. Thank you!

What does need to happen ASAP is a counterattack against the BS 'showers' argument.

I think that's likely to happen, simply because Focus on the Family is in on this, an MoCo wasn't the only fight.

This has to be nipped in the bud asap.

Maybe someone should interview Palin about trans-inclusiveness. Then we can all move to Canada.

At the rate things are going, you'll have trans-inclusive legislation all across the U.S. before we're even on the radar here. Aside from some of the nearly-deserted community centres, "drop the T" is old news here. Nobody's listening.

I welcome all your input into how to effectively counter the shower arguments. Zoe had a great idea about posting photos of trans women as is available on Lynn Conway's website.

The larger question is, and we grappled with it here -- do you respond to this argument, and in so doing give it credence? How can you respond and minimize the impact?

It has been said that everyone has to use a bathroom, so everyone finds the question relevant, even if only on first blush. When you then pair that off with trans rights, you have the entire population that relates to bathrooms vs. a tiny minority whose rights may be important but are nothing compared to the public safety of everyone else.

The fact that we are the most humble and shy of women means nothing, because their fear-mongering paints us as men. They still can quote the DSM. They have been very successful in simply ignoring trans men's existence, which is not surprising since there are only a handful of them out in public. They have admitted there has never been a problem, but counter with "But there could be, and it's not worth even one life." All you have to do is shout "predator" and "pedophile" and people react reflexively. Facts still don't matter enough in America, as is evident with the Palin boomlet.

The best defense against the bathroom arguement is constantly pointing out what hasn't happen in the 40% of the country that has trans protections. No arrests, no incidents, not even any pediphiles found in the women's room. None. Nadda. Zippo. Zero. Goose egg. Some locations are working on 20 years with those protections in place. Success has always been the best deterrent to their stupity.


We repeatedly pointed this out, and they completely ignored it and the media did not pick up on it.

So, the question would be how to get the media to focus on those facts?

Is it worthwhile to pay for commercials?

Which you shouldn't have to do when your opponents are lying through their teeth like a pack of shrieking hyenas, but just wondering.

It's a cost thing. They get their money from Heaven and we get our chicks for free. Oh wait. That's a song.

Oh, yeah, hence the "worth it" bit. I don't know how much Equality Maryland or Lambda Legal or Basic Rights Montgomery might have had to pay for commercials, let alone whether they had enough for even one. Was just wondering.

Making a good quality video to put on YouTube and other Internet places might be affordable, even if airtime on TV isn't.

It would be a good idea for NGLTF or another large group to set up a small video production unit to provide such resources as needed to local groups fighting local fights.

It would also mean that local TV stations couldn't air the enemy video propaganda without including our debunking video too. If the quality is high enough, it will save them money - they get content for free.

Radio spots people are cheaper than television and can reach the same wide audience.

Point. I was mostly thinking of television when I posted what I did, but yeah, radio.