What you should know about that really nasty anti-trans bill in Congress.

In early June, Republicans in Congress introduced a really scary, no good, very bad bill targeting transgender people.

It’s called “The Civil Rights Uniformity Act of 2017,” and while the name sounds innocuous enough, it’s actually a pretty blatant end-run around a question currently bouncing around the court system about what rights trans people have under existing federal non-discrimination laws.

Now, a super quick note: Don’t panic yet. It’s only in committee, only has a handful of co-sponsors, etc. But it’s worth knowing what sits on the possible horizon.

Here’s the official summary:

“This bill prohibits the word ‘sex’ or ‘gender’ from being interpreted to mean ‘gender identity,’ and requires ‘man’ or ‘woman’ to be interpreted to refer exclusively to a person’s genetic sex, for purposes determining the meaning of federal civil rights laws or related federal administrative agency regulations or guidance.
“No federal civil rights law shall be interpreted to treat gender identity or transgender status as a protected class, unless it expressly designates ‘gender identity’ or ‘transgender status’ as a protected class.”
It’s that last bit about “No federal civil rights law shall be interpreted to treat gender identity or transgender status as a protected class” that has me worried. GIF from Alex Rivest/YouTube.

It’s important to understand a bit of history here. Bear with me for a minute and I’ll get you caught (mostly) up to speed.

Nearly 90% of Americans believe LGBTQ people are protected from workplace discrimination — and depending on how you interpret existing law (which I’ll get to in a minute), they might be. But the sad truth is that there’s no federal law that explicitly protects people on the basis of sexual orientation or gender identity.

Shocking, right? (or maybe it’s not) Anyway, for years, Democratic members of Congress have tried to pass federal protections in the form of the Employment Non-Discrimination Act and the Equality Act, but haven’t ever come especially close to making it happen. In recent years, legal groups have taken a different approach: arguing that though there’s no explicit protection, existing laws (such as the Civil Rights Act) should be interpreted to protect LGBTQ people.

And during his time in office, President Obama largely agreed with this approach, instructing various agencies to work under the belief that bans on sex-based discrimination apply to LGBTQ people, as well. Is that what legislators had in mind when passing these laws? Maybe not. Still, arguing that people shouldn’t be discriminated against for who they are or who they love is in line with a number of the other protected classes covered by non-discrimination laws (such as sex, race, religion, disability, and so on).

The authors of the so-called Civil Rights Uniformity Act take issue with that approach, and list examples where they believe the administration’s “actions are an affront to the rule of law, the separation of powers, the will of the people, language, history, safety, privacy, and biological realities.”

“On December 15, 2014, Attorney General Eric Holder announced that the Department of Justice would reinterpret the ban on ‘sex’ discrimination under title VII of the Civil Rights Act of 1964 to encompass ‘gender identity’. …
“On May 13, 2016, the Departments of Justice and Education issued a ‘significant guidance’ letter stating that under title IX of the Education Amendments of 1972 ‘when a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.’ The guidance further states that schools ‘must treat a student’s gender identity as the student’s sex’ including in the context of ‘sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes.’ …
“Also on May 13, 2016, the Department of Health and Human Services finalized regulations that redefined the Affordable Care Act’s prohibition on ‘sex’ discrimination in federally funded health programs and activities to cover ‘gender identity’, thereby opening health care professionals and insurers to extensive liability if they decline to participate in or pay for ‘gender transition’ treatments or ‘sex change’ operations.”

If this bill were to become law, trans people would have no legal protections from discrimination in employment, housing, public accommodations, or health care. That’s really scary. Because while, in theory, Congress could just go, “Okay, sure, let’s amend each of our various civil rights bills to explicitly protect LGBTQ people,” they won’t (see: my bit above about the struggles Democrats have had trying to pass ENDA/the Equality Act — it’s just not a current political reality).

“Sure, but there’s a difference between ‘sex’ and ‘gender’ so this makes sense to me and…”

Okay, okay, okay, okay. I have thoughts on differentiating between “sex” and “gender” and all that when it comes to how we use it in conversation, and you might also. That’s fine.

But let’s set that aside for a minute. Let’s set aside the “How many freakin’ genders!?” YouTube videos, the Twitter debates, etc. Set that aside. Please.

One response to me saying this bill is terrifying and would have devastating effects.

Colloquially, the terms “sex” and “gender” have become pretty close synonyms. Typically, personally, I use “male” or “female” as adjectives and “man” or “woman” as nouns. It just sounds… clunky, otherwise (in my opinion). For instance, “Serena Williams is a female tennis player” sounds better to me than “Serena Williams is a woman tennis player.” Just as “Serena Williams is a woman who plays tennis” sounds better than “Serena Williams is a female who plays tennis.”

The point is that (generally speaking), people understand “female” to mean “woman” and “male” to mean “man.” If someone asks “Are you male or female?” it’s a safe assumption that they’re asking whether you’re a woman or man. We can argue about whether this is a good or a bad thing in terms of our cultural understanding (a different day), but when it comes to the law, there are definitely arguments to be made that “sex” and “gender” are pretty much the same thing (again, in the eyes of the court).

Sex and gender and time and…

Anyway, the “‘sex’ is different than ‘gender’” debate is best saved for another day. This is about determining whether or not you think it should be legal to fire someone for being transgender, to deny a woman (trans, not trans, whatever) housing because she doesn’t “look like a woman” or is “too masculine,” to turn a man away at your restaurant for appearing “too feminine,” or for an insurance company to be able to deny access to certain medically-necessary services just because of who you are.

Let’s hope this discriminatory bill dies in committee, but if it makes it to the House floor, give your representative a call.