There was an article the other day
in the NYT about a male-looking lesbian in NYC who was kicked out of the women's room of a bathroom in a restaurant. Apparently, the female patrons on the restaurant freaked out, thinking a male pervert was prowling around the woman's room, and ran to the management. The male bouncer went to the restroom, banged on the bathroom stall and demanded the "man" (who was really a woman) leave. She told him, I'm a woman, let me show you my ID. He said no, no ID, get out.
This case is now being used as proof of why we need to include "gender identity" in ENDA (the gay rights bill that would outlaw job discrimination against gays). This fits into a larger argument/concern that the trans-inclusive ENDA side keeps raising - that if we don't include gender identity in ENDA, employers will fire effeminate gays and masculine lesbians for being effeminate or butch rather than being gay, and a GLB-only ENDA, the argument goes, would allow this.
First, let's consider the case in NYC. At first, the case horrified me. Then I put on my lawyer hat and thought about it. The concern of the trans-inclusive ENDA side of the argument is that your boss will either:
a) Know you're gay and try to use your masculine or feminine attributes as an excuse to fire you when he really wants to fire you because you're gay.
In the story above, the discriminator didn't know that the woman was gay - he wasn't participating in any ruse at all. He didn't even know that she was a woman. He did not have any animus towards the class that we want to protect - he didn't dislike her because she was a butch woman, he didn't dislike her because she's gay. He went after her because he honestly thought she was a man who was stalking women.
b) The other concern from the trans-inclusive ENDA folks is that your boss may legitimately like gay people, but he still doesn't like butch women or fey men and he'll fire you anyway, and without gender identity, this would be legal under ENDA, or so they claim.
But again, in the story above, this isn't a situation in which the bouncer didn't like butch women. He thought the woman was a man, and thought that the man was about to sexually molest women in the bathroom. Had he said "I know you're a woman, but get out anyway, you're too masculine," then you've got him. But that's not what happened.
Now, the bouncer obviously should have looked at the woman's ID when she offered it. Having said that, IDs can be faked, and he was convinced some perv was stalking women in the bathroom. The guy hardly had a bad motive - or animus, as we call it in the law.
So, the question remains, is this the kind of thing that we want to cover in the law, and is it the kind of thing that we want to cover in ENDA? I'm just not sure. In every civil rights case I can think of, the bad guy is going after you expressly BECAUSE you're a member of a protected class and he knows it. You're kicking transsexuals out of the bathroom because you KNOW they're transsexuals, and you don't like it. You're firing the gay guy because you don't like gays or you don't like effeminate men. You don't serve blacks in your restaurant because you hate blacks. In each case, you have a problem with the class in question. Is this case really the same, and is this really what ENDA was meant to protect?
I'll make one final point. Part of what we do in the law is create incentives for good behavior. I.e., we might cover the above scenario in ENDA because we want bouncers to think twice about whether the man in front of them might really be just a butch woman. But including this under ENDA will have one other effect - it will make men think twice when rushing to the aid of women who they believe are being sexually molested. And before anyone scoffs, that is exactly what the bouncer thought. The next time he gets a report that women are being attacked by a man, he's going to think twice. Is that the lesson we want this guy, and others, to take away?
It's a tough case. But I'm just not convinced that it's a civil rights case.
PS I do find it interesting that in this case, the problem is that the woman did too good a job of not conforming with her gender, which is what gender identity is all about, or so we are told - the right to non-conform to your gender. But if gender non-conformists do such a good job of not conforming, of looking like the other gender, or something in between, then how can we blame society when someone believes their non-conformity?
Let me give you another example. Would the following, should the following, be covered under a civil rights law:
A transgender anatomically female person (i.e., born with female genitalia), dressed as a man - and looking like a man, no one would know they were transgender - enters the ladies room at some public venue. Again, the powers that be freak out because a man is prowling the woman's bathroom. Do we really expect a security guard's first reaction not to be to tackle the man who is in the woman's room? And if the security guard does this, is he guilty of discrimination, and should this be covered by civli rights laws? Is it really the same thing as the security guard saying "I know she's really a woman, but I don't like that she looks like a man?"
Just curious what folks think since this article is being quoted, a lot, to "prove" that gay-only civil rights laws don't protect butch lesbians and fey gay men.
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