Rebuttal to Anti-discrimination Ordinance Nay-sayers

http://transmontanathebook.com/rebuttal-to-anti-discrimination-ordi...

I read with furrowed brow the article on the front page of the Helena, Montana newspaper, the Independent Record on September 6, 2012: City to Keep Working on Ordinance, together with the quotations therein.  Why yes, I am an attorney.  And here is my rebuttal.

Hearing from a minister, an employer, a landlord and the father of daughters seems just a bit orchestrated in the first instance, as do their comments.  Let’s examine them.

First, the minister says he’d like to think that the church is the strength of the community, not the enemy.  "We don’t want to be perceived as ... outcasts."  Me too, and I think my church with its inclusive pastor and vision is the strength of the downtown Helena community.  If you do not want to be perceived as outcasts, do not cast others out.    If you do not want to be perceived as uncooperative, than be cooperative.  If you do not want to be perceived as bigoted, then stop judging others.  If you want to be esteemed, do estimable acts.  As for me, I strive to treat all others with patience, tolerance, kindness and love.

Second, consider the comments from the employer and landlord, notably two of the three sectors the law seeks to provide protection with (Employment and Housing Discrimination).  They both claim that in 38 and 20 years respectively they have never been heard of, or been accused of, discrimination.  While the claim seems dubious on its face, it is understandable that a person who fears public identification as "gay" - for the sake of their friend’s and family’s acceptance and understanding, as well as their physical safety - would not want to complain of discrimination.  Add to that the fact that there is no legal recourse or remedy, it is not surprising that they would not complain.  The simple truth is that silence is the very face of victimization. 

But, even if these people are unaware of discrimination, let us consider the quotes themselves.  The first involves the effect on doing business, and assumes that it would be negative.  Not so, say the many other cities that have adopted such ordinances.  (See, The Business of Non-discrimination, September 28, 2010, memo from the [Michigan] Human Rights Commission with their research on the economic aspects of non-discrimination ordinances.  

(http://planfortc.com/2010/09/28/the-business-side-of-non-discrimina... ).

Two themes consistently emerge from this and other research: "No studies or other information indicat[es] that the enactment of the ordinance had any negative impact on businesses or the business environment, and "there is a lot of evidence that the enactment of such nondiscrimination ordinances has a positive impact on businesses, the business environment, and the community as a whole."

Author of the Michigan study, Professor Peter J. Hammer, J.D., Ph.D., Professor of Law and Director of the Damon J. Keith Center for Civil Rights at Wayne State University Law School says that on the contrary, "Discrimination is bad for business and bad for economic growth," and that . . . "Prohibitions against discrimination, protections of rights and laws that create an environment fostering tolerance, diversity and respect all create an environment that is more conducive to attracting the type of businesses that will be vital to future economic growth." 

States with such progressive policies benefit while states "with less progressive policies and less tolerant environments lose out in the struggle to lure new businesses and high tech employees."

Finally, Professor Hammer states: "Progress on the social and political front will be essential to making  sustained progress on the economic front. The economy is a complex ecosystem. Extending the prohibition against discrimination to include sexual orientation and gender identity is part of the economic solution."

And now, the last sector, public accommodation.  Why is it that conservatives always pull the potty card?  They are concerned about what might happen when a man who perceives that she is a woman has legal access to the women’s rest room.  Where is your head, pray tell?  And please, get it out of the potty.  Helena does have a proscription against using opposite sex restrooms.  

This presents what is known in the legal business as a conflict of laws.  Our courts have rules by which such conflicts are resolved that I agree should be brought to bear here through legal research and drafting that should have already been done.  One compromise to reconcile the legal distinction would be to allow transgender people to use the restroom appropriate to, not only their perception, but also to their presentation, vis-a-vis, if they present as a woman they should be allowed to use the woman’s restroom for their own safety.

People will undoubtedly scream. "What about the safety of our wives, our mothers and our daughters?"  I get that.  I have a mother, a daughter, and a, well, an ex-wife who remains a very dear friend.  I want them to be safe too.  But, what is the threat?  Why is there this assumption that male to female transgender people present a threat to women?  Think about the facts, the law and the science for a moment.  Here are some questions to ponder.

1.  Does rape or sexual assault ordinarily occur in public restrooms?

2.  Who are most often the perpetrators of sexual violence?  What is the evidence that transsexuals engage in sexual violence in any greater degree than any other groups?  Is it any greater than the evidence of threats constituted by the acts of straight men, or of those by clergy toward children? 

3.  Do we exclude all men and clergy from public accommodations where women and  children congregate due to the actions of a few?

4.  Does excluding a whole class of people from public accommodations rights provide women and children any greater measure of protection from sexual violence? 

Frankly, having spent over thirty years in child abuse treatment, criminal prosecution, and civil rights protection, I know the answers to these questions.  I hesitate to state them lest I be accused of bias (okay, I am).  Nonetheless, the facts, the law and the science simply do not support the bathroom fear, and thus, it is little more than hysteria.  I say again, get your head out of the potty.