Friday, June 17, 2016

Finally! Movement on Non-Discrimination Legislation in Pennsylvania

The National Center for Transgender Equality continues to strongly support and fight for efforts to advance employment, housing, and public accommodations non-discrimination protections in Pennsylvania. We pledge to continue working until state law is passed in the Commonwealth to protect LGBT people from discrimination in all three settings.

And while passing full, comprehensive laws all at once is always the preference, we understand that sometimes in state legislatures, opportunities arise to quickly advance only some protections. The Pennsylvania trans and LGBT communities are now at that place, where friendly legislators have introduced three new separate bills that would protect LGBT people in 1) housing, 2) employment, and 3) public accommodations. And for the first time in fifteen years since NCTE staff first worked on Pennsylvania legislation, there may be momentum and a real chance to advance non-discrimination protections.

Advocates and legislators currently believe they can pass one or two of the three bills almost immediately. That is a very good thing. The question may seem to be whether we should support winning employment and housing protections even if public accommodation protections take additional time. We think the better question is whether we should have hard-won state employment and housing protections in place while we are working for additional years to pass desperately needed public accommodation protections. Though we would of course prefer winning everything at once, the answer is pretty clear to us: we should advance protections for trans and LGBT people whenever we can, as fast as we can, as much as we can. Therefore, NCTE strongly supports the passage of SB 1306 (employment), SB 1307 (housing), and SB 1316 (public accommodations) and we pledge to continue our more than decade of work to pass any of these bills that do not pass in this session.

We support this strategy with a few conditions. First, there can be no harmful amendments added to any of the bills as they pass. Second, we would want to see significant support for this strategy from the Pennsylvania trans community.

Here is the information that we found useful in making this decision.

The transgender movement has very quickly won legal discrimination protections over the last fifteen years. Just since 2001, we have gone from just 4 percent of the US trans population living in state and local jurisdictions with gender identity/expression non-discrimination laws to over 50 percent today. Additionally, we now have the federal government and numerous courts agreeing that discrimination against trans people is illegal. That is true for employment, housing, education, and healthcare. And it is true in all 50 US states and territories including Pennsylvania.

Even though we are increasingly confident that existing federal employment and housing laws cover transgender people and this will be clarified in our favor even more in the coming years, we know that state non-discrimination laws are still so important for many reasons. 1) They often cover smaller employers, so for instance, the federal sex employment discrimination law called Title VII only applies to employers with fifteen or more employees, whereas if Pennsylvania passed a state employment discrimination law it would apply to employers with four or more employers. 2) Many states, including Pennsylvania, have state Human Relations Commissions which can work on cases when categories such as gender identity and sexual orientation laws are passed, which means trans people more and sometimes faster avenues for recourse. Finally, when state non-discrimination laws pass, it becomes a significant and positive public and business educational moment, making it clearer to the broader community a clear message that anti-trans discrimination is wrong and against the law.

Every bit of progress the trans and the LGBT movement has won has been incremental. For instance, during the Obama administration, trans people have won over 100 federal policy victories—each one incremental, but each one fought for and welcomed.

Of the 20 states plus DC and Puerto Rico that have passed state non-discrimination laws, five (Hawaii, Nevada, Massachusetts, Utah, and even California) did it initially without public accommodations. Hawaii, Nevada, and California added public accommodations later, and Massachusetts seems likely to do so in the next few weeks.

The 1964 Civil Rights Act includes the category of sex only in the employment section (called Title VII). Sex is not in Title II, where public accommodations are covered. We are all so thankful that we at least have had employment protections under federal law, even without public accommodations protections.

Despite a lot of work and the expenditure of great resources by Pennsylvania advocates, everyone who has been working on the Fairness Act—the comprehensive bill covering public accommodations as well as housing and employment—agrees that it simply cannot be passed this year and probably not for another 5-10 years as a unified comprehensive bill.

We now are being given a rare opportunity to win statewide housing and possibly employment protections. 

Though over 30 municipalities in Pennsylvania have passed local non-discrimination laws that protect transgender people, only transgender people in a few places like Philadelphia and Pittsburgh have robust local non-discrimination protections and a City Human Rights Commission to help enforce them.

People in rural communities as well as smaller cities and towns need the state employment and housing protections, as well as the public education moment that will happen when bills are passed.

We believe that trans people must fight as hard as we can for as many rights as we can as fast as we can. Therefore we are supportive of the current strategy to pass desperately needed housing and employment protections this year, even if it means we fall short—for now—in getting public accommodations protections. As we have seen in Hawaii, California, and Nevada, and are now seeing in Massachusetts, it is possible to come back and win public accommodations. In the meantime, having the other protections can be lifesaving for so many people. NCTE will continue to fight and continue to win.

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