Sasha Buchert: The need for the Equality Act and transgender protections -- debunking the scare tactics

The Capitol is seen from the Russell Senate Office Building in Washington, Wednesday, Jan. 9, 2019. (AP Photo/J. Scott Applewhite)

The Equality Act is a long overdue update to our federal civil rights laws.  Receiving its first hearing before the House Judiciary Committee this week, it explicitly bans discrimination based on an individual’s sexual orientation or gender identity at work and in housing, access to credit, education, jury service, public accommodations, and programs that receive federal funding. These protections are needed urgently because, although treatment of lesbian, gay, bisexual and transgender (LGBT) people has improved in recent years, we still face shocking and largely unrecognized rates of discrimination. This is particularly true for transgender people, as studies like the U.S. Transgender Survey confirm.

In addition, while we have made significant progress legally, LGBT people still lack a clear and secure guarantee that the law protects us nationwide. Although a growing number of courts have recognized that both sexual orientation discrimination and gender identity discrimination are forms of unlawful sex discrimination, there are not yet clear and explicit federal laws that protect us—and there is no protection for anyone from sex discrimination in key areas such as public accommodations and federally funded programs.  Because LGBT people across the country remain vulnerable to discrimination on a daily basis as a practical matter, this means we too often have little or no recourse.

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Unfortunately, some opponents of protections for LGBT people have decided yet again that their best line of attack is to target transgender people and to try to instill fear in people who don’t know us by casting us as a threat to non-transgender women and girls in athletics and sex-specific facilities. Others admit we pose no danger but assert we should have no legal protections because predators will claim to be transgender in order to gain protected access to women’s spaces.

These are all-too familiar, utterly false scare tactics. Protecting transgender people from discrimination does nothing to compromise the safety and privacy of anyone in restrooms and other facilities.

First, the decades of actual experience in places where transgender people are already protected under the law proves this. There are laws in 18 states and over 200 cities that protect transgender people from discrimination in public accommodations, meaning that transgender people are free to use restrooms and other facilities consistent with their gender identity, and there has been no increase in public safety incidents in any of these cities or states. Police Departments from around the country have verified this.

In addition, more than 300 of the nation’s leading sexual assault and domestic violence prevention organizations issued a statement calling for an end to legislation that would exclude transgender people from restrooms and other facilities that match who they are. Lastly and most importantly, nothing about legal protections for transgender people changes the fact that sexual assault remains a crime which can and should be treated as such.

In reality, it is transgender people who are at risk of harassment and violence in restrooms and other facilities. In a study from UCLA School of Law’s Williams Institute, nearly 70 percent of transgender people reported having experienced verbal harassment in gender-segregated restrooms, and nearly 10 percent reported having experienced physical assault.

The Equality Act will help ensure that every person, every employer, and every business knows that discrimination is wrong and illegal, no matter where they live or work.

Opponents of discrimination protections also argue that the Equality Act would diminish women’s athletics by allowing transgender people to participate because non-transgender people will pretend to be transgender in order to gain a competitive advantage. But the notion that individuals who are not transgender would falsely claim that identity – let alone actually undergo a gender transition – just in order to gain an advantage in women’s athletics or to use a restroom is absurd and disconnected from the reality that transgender people experience.

The social stigma and overt hostility against transgender people is pervasive and intense. And transitioning is a painful and difficult process that no one enters into lightly. Almost everyone has seen or experienced bullying at some point in their life because of someone’s opinion about stereotypically masculine or feminine behavior, but transgender people willingly face that antagonism directly in order to transition so that they can live authentically—and they often pay a high price. For many, it leads to harassment and violence, loss of friendships, and parental support. There is simply no evidence or real life basis for believing that anyone would pretend to be transgender to gain an advantage in athletic competition.

The fallback argument to the “imposter” theory acknowledges that transgender women are women and not just pretending to be women to accumulate trophies, but that they should be denied the freedom to participate because they have an advantage that will allow them to dominate women’s athletics.

First of all, this argument is disproven by the lived experience of transgender men and women who have been competing in single-sex athletics consistently with their gender identity for decades in high schools, colleges, the NCAA, the Olympics and intramural sports across the country, and no aspect of women’s sports has been undermined.

Second, individuals who seek to deny transgender people the opportunity to participate in sports will inevitably point to a handful of athletic events in which transgender people have excelled. But, those rare examples ignore the thousands upon thousands of events in which transgender people have competed and lost, and that no openly transgender person has ever competed in the Olympics.

Third, it is no wonder that there is no evidence to support the proposition that allowing transgender athletes to participate will somehow reduce the participation of other women. Transgender people make up only 0.6 percent of the population and, of course, not all are engaged in competitive athletics. It is statistically impossible for this tiny population to have a meaningful impact on the available opportunities for non-transgender girls and women.

Lastly, let’s acknowledge that women, like men, come in a vast variety of shapes, sizes, and athletic abilities.  For many of them, both transgender and non-transgender alike, participation in sports can profoundly contribute to their physical, social and emotional well-being. Especially for young people, it’s important that everyone who wants to participate is able to and that everyone has an opportunity to absorb the important lessons that athletics teaches us about teamwork, self-discipline, hard work and persistence.

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Finally, it’s true that women are still not represented in athletics in the same numbers as men. The solution to this disparity, however, is not to deny transgender people the opportunity to participate. Instead, it is to ensure that women’s athletics receive equal funding and attention and that girls are encouraged from an early age to participate in athletics in the same way that boys are encouraged to participate.

Transgender people, and LGBT people generally, remain vulnerable to appalling discrimination on a daily basis and too often have little recourse.  The Equality Act will help ensure that every person, every employer, and every business knows that discrimination is wrong and illegal, no matter where they live or work. It will bring America closer to the “all people are created equal” ideal that has been an inspiration since our founding.