Dr. Jillian T. Weiss

Trans Activism 2013-Style

Filed By Dr. Jillian T. Weiss | January 14, 2013 1:30 PM | comments

Filed in: Marriage Equality, The Movement, Transgender & Intersex
Tags: gender identity, Macy's, trans activism, trans military, trans service, transgender activism, transgender military

It's been months since my last blog, and I am anxious about getting back in the saddle. A lot has changed since I last blogged in September.
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At that time, the most important thing was getting pro-equality candidates elected, and we did that. The re-election of President Obama was the best thing for equality, as was the election of our largest cadre of LGBT Members of the House of Representatives, including my own Sean Patrick Maloney in NY-18 (please like his Facebook page!), and the election of Senator Tammy Baldwin.

But it's not about legislation right now. The government agencies and the courts are where it's at. I've moved my activism to those arenas, and it's time to start blogging again.

It's been busy, but lately, blogging has been on my mind. It's not enough to go into our various little cubby holes and do our work. It's important to tell each other what we're up to, providing encouragement to keep going in the face of life's obstacles, and also learning something about what the next challenges are, and where the action is likely to be.

For example, ENDA is so 2000s. Yes, it will get passed at some point, and yes, we should still continue to ask for it. But I'm not putting all my eggs in that basket right now, because the House is too dominated by conservatives to make it worthwhile. Same thing with GENDA in New York State.

Based on my analysis of where the most fruitful activism is moving, I made the decision to reactivate my law license and take on some employment discrimination cases, mostly involving gender identity. Also, I decided to accept a position on the Board of Lambda Legal, which is all about taking the fight to the courts.

I'm continuing to do academic research on the use of new theories of legal action to fight discrimination, and I'm co-chair of the Transgender Law Institute at the National LGBT Bar Association, along with Lambda Legal Transgender Rights Attorney Dru Levasseur.

It's telling that the United States Equal Employment Opportunity Commission has finalized its strategic plan, which calls for prioritizing cases involving LGBT workers. This is particularly important given the EEOC's Macy decision last year, which held that discrimination based on gender identity is sex discrimination under the federal Civil Rights Act.

There is an uptick in transgender workers asserting their right to be free of discrimination and harassment. It is starting to be understood that exclusion of transgender health in public and private health care policies is discriminatory. Government agencies and private organizations are re-examining their policies in light of these developments. I also believe there is significant interest among LGBT groups in altering the regulatory structure of the military as it pertains to prohibiting service by transgender service members. The main problem there is that a strategy has not yet been worked out for moving forward, but I think that will come soon. Lastly, the effect of DOMA on marriage for transgender people is starting to be grappled with, and the Supreme Court's upcoming decision in March will be very important for trans people.

On the institutional front, there is increasing support for addressing transgender issues, with more advocacy organizations specifically devoted to trans issues. They are receiving more monetary support, and LGBT organizations are increasingly recognizing that trans advocacy is an important part of their mission.

But what does this all mean on the ground?

For example, does the fact that the EEOC has now recognized that transgender discrimination is sex discrimination mean that trans workers can easily rectify the discrimination they face in their current jobs, or eliminate discrimination when looking for jobs? Far from it. The legal framework for addressing employment discrimination is complex and hard to enforce. Only about 15% of federal employment discrimination plaintiffs win their cases, and those cases do not typically net much in the way of an award.

The EEOC is very slow-moving, with cases taking six months at a minimum to process through EEOC, but more likely a year or two, and most of those result in no action by the EEOC. The plaintiff receives a "right-to-sue" letter, meaning that they can take their grievance to federal court, which usually takes another few years, and costs about $5000 at a minimum, even if you do it yourself (which is like doing brain surgery yourself) or find an attorney willing to work on a contingency basis, meaning they get no fee unless there is an award.

I will be blogging about my advocacy efforts in the EEOC and the courts, and my work with Lambda Legal and the Transgender Law Institute. I think you will find it eye-opening.

(Law book image via Bigstock)

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