RAP0010.1177/2053168015612246Research & PoliticsFlores et al. 612246research-article2015

Research Article

Research and Politics October-December 2015: 1­–8 inclusion in state © The Author(s) 2015 DOI: 10.1177/2053168015612246 non- policies: rap.sagepub.com The democratic deficit and political powerlessness

Andrew R Flores, Jody L Herman and Christy Mallory

Abstract Transgender people—people whose identity or expression is different from their assigned sex at birth—and their allies advocate for the inclusion of or transgender in state non-discrimination policies. These policies generally proscribe discrimination in employment, housing, and public accommodations. Courts and administrative agencies have determined discrimination against transgender people is a violation of existing statutes, but there remain efforts by advocates to seek policies that explicitly prohibit discrimination on the basis of transgender status, which are often the result of legislation going through the political process. A pluralist understanding of the political process theorizes that a majority coalition of minorities can offer social groups policies they support. This rests on the presumption that a majority coalition of minorities should rule. Any indication to the contrary may suggest a democratic deficit, whereby more than a majority is necessary for policy introduction. We find that there is a substantial democratic deficit regarding the inclusion of gender identity or transgender in employment non-discrimination policies. On average, state support for the policy must be 81% in order for the state to have a policy reflecting such sentiment. This leaves substantial implications for the political powerlessness of transgender people in the political process.

Keywords , policy responsiveness, public opinion

Introduction Transgender people across the have reported negative outcomes compared to those who had not lost a experiencing employment discrimination, including having job due to bias. Those who lost a job were more likely to been fired, not hired, or not promoted due to anti-transgen- make less than US$10,000 annually (24% versus 11%), der bias (Grant et al., 2011; Hartzell et al., 2009; Lombardi more likely to have experienced homelessness (40% versus et al., 2002). Findings from the largest survey of transgender 10%), and have higher prevalence of HIV, smoking, alco- people in the US to date, the National Transgender hol and drug use, and suicide attempts. To the extent that Discrimination Survey (NTDS), suggest that employment public policies can prevent employment discrimination discrimination and mistreatment in the workplace are com- among transgender people, such negative outcomes and mon experiences among transgender people, with 90% of their resultant costs to society may be reduced. Ordinances respondents reporting one or more of these experiences (Grant et al., 2011). Over one quarter of NTDS respondents have reported losing a job because they are transgender. Job UCLA School of Law, USA loss can cause economic instability for individuals and their families, which can lead to a variety of negative outcomes. Corresponding author: Andrew R Flores, The Williams Institute, UCLA School of Law, In the NTDS, those who reported losing a job because they Box 951476, Los Angeles, CA 90095-1476, USA. were transgender had an elevated prevalence of several Email: [email protected]

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Downloaded from by guest on January 26, 2016 2 Research and Politics and statutes that prohibit employment discrimination based Phillips, 2009a; Page and Shapiro, 1983). In this context, on gender identity are examples of the types of policies that an “easy” issue is one that people can generally understand may help reduce this type of discrimination and resultant and formulate an attitude about at a gut level. Furthermore, negative outcomes. subsequent policies may be primarily focused on ends As of March 2015, there is no federal statute that explic- rather than the process (e.g. Carmines and Stimson, 1980). itly prohibits discrimination based on gender identity. A Recent studies, however, have found that certain biases majority of states (31) also have not enacted laws that exist that influence the extent to which policies match the explicitly prohibit discrimination based on gender identity desires of the public. Lax and Phillips (2009a, 2012) show (National LGBT Task Force, 2014). While Congress and that there are opinion deficits in a democracy. A democratic state legislatures have resisted extending these protections, deficit may manifest in two ways: policy responsiveness federal agencies and courts have been increasingly likely to may be hyperactive by passing a policy before a majority of expand and interpret non-discrimination laws to protect the public favors it, or policies in states may be slow to transgender people. For example, in 2014, President Obama match public sentiment and may not be adopted until more issued executive orders adding gender identity to the list of than a majority of the public favors the policy. In the latter characteristics protected from discrimination in employ- case, systemic lack of congruence between public opinion ment by federal contractors and in federal civilian employ- and public policy may suggest that some areas of social ment ( Nos 13,672 and 13,087). Similarly, policy require greater consensus among the public before in 2012, the US Department of Health and Human Services lawmakers act. Lax and Phillips (2012) show that the great- and the US Department of Housing and Urban Development est influences on policies outside public opinion are institu- issued policies explicitly prohibiting discrimination based tional and partisan factors that either encourage policies to on gender identity in connection with agency-funded pro- match the desires of the public or detract them from doing grams (US Department of Health and Human Services, so. The current study makes three contributions: (1) we 2012; US Department of Housing and Urban Development, expand upon the democratic deficit by relating it to politi- 2012). Several federal agencies have also recently issued cal powerlessness as understood in the context of constitu- interpretations of existing laws prohibiting discrimination tional law; (2) we use established methods to estimate based on sex to include discrimination based on gender statewide public opinion on transgender inclusion in non- identity, including the US Equal Employment Opportunity discrimination laws; and (3) we contribute to a small but Commission (Macy, 2012), the US Department of Justice growing literature on empirical studies on transgender poli- (2014), the US Department of Labor (2014), and the US tics and policy. We also continue to show that partisan fac- Department of Education (2014). Several federal courts, tors play a strong role in policy responsiveness. too, have issued opinions interpreting sex non-discrimina- tion requirements to protect people who have been discrim- inated against because of their gender identity (e.g. Barnes The democratic deficit and political v City of Cincinnati, 2005; Glenn v Brumby, 2011; Schroer power v Billington, 2008; Smith v City of Salem, 2004). While policies may be responsive to the public, they may These agencies and courts may make decisions that are not necessarily match the majority will. A deficit in the counter-majoritarian, but when “those political processes to democratic process suggests that some social groups may be relied upon to protect minorities” systematically leave be politically disadvantaged while others are advantaged. minorities on the losing-side of enacted policy (US v Lax and Phillips (2009a: 383), for example, find that poli- Carolene Products Co., 1938: 152n.4), they act for them. A cies relating to and are often met with a key attribute of political power is whether a group’s prefer- conservative bias: ences are enacted to policy (Stephanopoulos, 2015). The preferences of the public inform the policy process, making [S]ome of our findings do raise concerns for democratic public opinion fundamental in shaping policy outcomes. theory. We observe that the strength of the relationship between Little is understood about how the American public opinion and policy varies significantly across issues. And, structures its opinions about transgender people and rights. despite responsiveness to opinion, majorities certainly do not Recent studies find that people tend to be more supportive always get their way. Some policies consistently reflect of transgender people and rights when they consider them- opinion majorities; for others, even clear supermajority support selves more knowledgeable about transgender people, seems insufficient for policy adoption. This is most true for know someone who is gay or , or support gay rights laws and policies that address marketplace equality (Flores, 2015; Norton and Herek, 2013). Beyond opinion (e.g. employment, housing protections). formation, it is also important to understand how and whether public policy reflects these opinions. Social policy Not all policies are conservatively biased. There may be issues are likely more responsive to public sentiment other factors that influence whether policies are respon- because these issues tend to be easy and salient (Lax and sive and congruent to opinion such as issue salience,

Downloaded from by guest on January 26, 2016 Flores et al. 3 institutional factors, and elite partisanship (Lax and Phillips, irrelevant to [the theory] if certain groups fail to join the win- 2009a, 2012). ning coalition with sufficient regularity” (Stephanopoulos, The rights of transgender people have been less visible 2015: 33). Undergirding pluralist or majoritarian theories, than other lesbian, gay, bisexual, and transgender (LGBT) however, is that majorities (or coalitions of minorities) rule. issues such as marriage equality. The LGBT advocacy coa- A democratic deficit suggests otherwise.2 The political pro- lition has debated whether and when transgender rights will cess may insufficiently translate a coalition of minorities to be included in and placed higher on the policy agenda rule on policies. If this is systematic to policies related to a (Minter, 2006). National gay rights organizations, for particular minority, then this may be another way the politi- example, have been slow to include transgender rights in cal process disempowers some social groups. their platforms, though most are now inclusive (Tadlock, 2014). A simple search of New York Times articles on Lexis Nexis shows that “transgender” and “discrimination” Estimating public opinion in the states appear in 392 articles while “gay” and “discrimination” To be able to examine whether state policy is responsive to appear in 935 articles.1 Our focus on a single policy holds the preferences of the public, there needs to be a way to salience constant. Given the less salient nature of transgen- estimate opinions on transgender-inclusive non-discrimi- der rights, it may be easier to find policy incongruence. If nation policies across the states. The dearth of studies on we find there is a clear and large democratic deficit on the this topic is also reflective of the available amount of inclusion of transgender people in state non-discrimination national or statewide survey data on this topic. There is, policies then this may imply the political power of transgen- fortunately, a single national survey conducted by the der people is at a disadvantage in the political process. A Public Religion Research Institute that asks respondents lack of political power can be one indication to the courts whether “Congress should pass laws to protect transgender and administrative agencies that a minority group cannot people from job discrimination.” We use this measure with solely rely on the political process to seek relief. established methods of estimating statewide public opin- Political powerlessness among a minority group can signal ion with multilevel regression and post-stratification to courts that laws and policies disadvantaging the group (MRP) (Gelman and Little, 1997; Lax and Phillips, 2009b; should be subject to a more scrutinizing form of judicial Park et al., 2006). While the question wording is clearly review under the US Constitution’s about federal policy, there is little evidence to suggest that (US v Carolene Products Co., 1938). In the past, the US responses would significantly change if the question refer- Supreme Court has used indications of political powerless- enced state-specific policies. There is also little reason to ness, along with three other factors, to determine that laws believe that MRP estimates would be inaccurate, as recent and policies that classify people based on race, national ori- criticisms of the method have shown that on morality pol- gin, alienage, sex, or non-marital parentage should be icy and gay rights, MRP tends to perform exceptionally reviewed closely for unconstitutionality under this principle well (Buttice and Highton, 2013). Estimation is conducted (see Yoshino, 2011). Though there is a body of scholarship on a complete case sample size of 968 respondents, exclud- evaluating the political powerlessness of ing residents of the District of Columbia. Lax and Phillips minorities (including gay, lesbian, and bisexual people) and (2009b) show that national polls of “sufficient size (1000 LGBT people (e.g. Halley, 1989; Hutchinson, 2014; Miller, or more)” are on average off by 6 percentage points when 1984; Powers, 2010; Schraub, 2010), little research has compared with statewide polls (p. 118). The current sam- focused on whether transgender people are politically power- ple size may be less than sufficient, so we report the 95% less as a distinct group. A systematic democratic deficit is one credible intervals for each state estimate. likely marker of political power because it suggests that the The estimation procedure relies on the traditional political process may be insufficient for minorities to seek approach of modeling opinions in favor as a function of rights. At times, the court defers to other branches when the basic demographic characteristics in a hierarchical model group under question does not meet the factors that warrant greater scrutiny. Why might the political process be insuffi-  ββ++**female β black +  cient on transgender-inclusive non-discrimination policies?  01 ii2  −1 age.cat Underpinning political power is a pluralist understanding Pr()yli = 1 = ogit  β12 **femaleiiblack +++α j    that some social groups may get some of their policy desires  educ state  through the political process (Stephanopoulos, 2015). ααk + s  Minorities are generally secure because they may have fair chances of passing policies they prefer (Stephanopoulos, 2 2015). Powerlessness may then be understood as a system- ασj ~,Nf()01age.cat or j =…,,4 atic lack of policies reflecting a group’s interests relative to other groups. A purely majoritarian perspective would not 2 be concerned much about political power because “[i]t is ασke~,Nf()01duc or k =…,,4

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region 2 Table 1. Opinion estimates and summary statistics. αβss~*Np()3 resv.,otef+ασl state or s =…15,,0 State Transgender inclusive Congruent non-discrimination (in 2010) ασ~,Nf012 or l =…,,4 lr()egion % favor [95% credible interval] The previous vote share to the Republican candidate in the 2008 Presidential Election is used as additional information 69 [60, 77] Alaska 72 [62, 84] at the state level to increase precision in the estimates. The Arizona 77 [69, 84] model is run using empirical Bayes with three Markov Arkansas 70 [63, 77] chains and 100,000 Monte Carlo simulations. The first half California 86 [81, 90]  of the iterations is dropped as a burn-in process and, of the Colorado 81 [74, 87]  remaining iterations, every 50th is retained for a total of Connecticut 85 [77, 90]  1002 simulations. The results indicate proper mixing Delaware 87 [80, 91]  R ≈ 1 . These results are then post-stratified using popula- 78 [71, 83] () 76 [70, 82] tion estimates from the 2010 US Census. Bayesian estima- 90 [81, 94]  tion easily permits the estimation of credible intervals from Idaho 71 [61, 82] the posterior distribution (see Gelman and Hill, 2007: 308– 82 [72, 88]  309), which is informative about how reliable these esti- 75 [67, 82] mates are given our sample size. In our supporting Iowa 77 [68, 83]  information, we further detail the sensitivity of our results 68 [58, 76] due to small sample sizes, error-in-variables models, and Kentucky 70 [62, 77] alternative MRP estimation strategies. Even with the poten- Louisiana 72 [65, 80] tial limitations of our current data and estimation strategy, 84 [77, 90]  Maryland 87 [80, 91]  our findings are not altered by these multiple tests. 87 [80, 91] The results of the estimation are provided in Table 1, Michigan 79 [70, 85] which also indicates whether states have policies consistent 78 [68, 84]  with the public sentiment. The estimates, while all above a Mississippi 73 [66, 81] majority of support, range from 66% to 90%, and the lower Missouri 75 [67, 82] bounds of the 95% credible intervals are all above 50%.3 78 [71, 85] The average level of support for transgender inclusion in 69 [59, 79] non-discrimination policies is 78%, and 18 states have poli- Nevada 83 [76, 88]  cies in place that are congruent with majority opinion. Less New Hampshire 81 [73, 88] New Jersey 85 [79, 91]  than half of the states are congruent with majority opinion. New Mexico 83 [77, 89]  New York 87 [82, 91] Responsiveness North Carolina 77 [70, 82] North Dakota 71 [61, 79] First, we examine policy responsiveness to public opinion, 76 [67, 82] and we report the results in Table 2. The estimates of public Oklahoma 66 [56, 78] opinion on transgender inclusion in non-discrimination Oregon 84 [78, 90]  laws significantly predict the probability that a policy is in Pennsylvania 82 [75, 88] place.4 On its own, support for the policy explains over half Rhode Island 87 [79, 92]  of the variation in the adoption of the policies, and 90% of South Carolina 74 [66, 80] South Dakota 71 [62, 79] the cases are correctly predicted. We also compare whether 72 [65, 79] policy-specific opinion versus general measures of state Texas 73 [67, 78] ideology accounts for policy adoption because previous lit- Utaha 71 [60, 83] erature suggests that general ideology may out-perform Vermont 88 [81, 93]  policy-specific measures, as lawmakers may lack policy- Virginia 79 [72, 85] specific constituent opinion (Erikson et al., 1993). The Washington 84 [77, 89]  West Virginia 72 [66, 80] models include measures of Voter Ideology and Government Wisconsin 79 [71, 85] Ideology from Berry et al. (1998). Two measures of govern- Wyoming 67 [56, 82] ment ideology are used, so we provide results alternating Mean 78 [76, 80]b which variable is included. The inclusion of these variables National Average 75 [72, 78]b does not alter the main finding, and these models perform Total Congruent 18 worse overall. A parsimonious model with only policy-spe- aUtah passed a transgender-inclusive non-discrimination law in March 2015. cific opinion is the best to explain responsiveness. bA 95% confidence interval is reported applying frequentist methods.

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Table 2. Policy responsiveness.

DV = Transgender non- discrimination policy (in 2010)

(1) (2) (3) Variables b b b (s.e.) (s.e.) (s.e.) Public opinion 0.491c 0.403a 0.407a (0.14) (0.21) (0.21) Government ideology – 0.016 – (ADA/COPE) (0.02) Government ideology – – 0.017 (NOMINATE) (0.03) Voter ideology – 0.022 0.024 (0.09) (0.09) Intercept –39.66c –34.85b –35.26b (10.93) (12.39) (13.63) N 50 50 50 Pseudo-R2 0.58 0.59 0.59 % CCV 90.0% 90.0% 90.0% Figure 1. Policy responsiveness. The black line represents AIC 31.30 34.64 34.75 the probability that a policy exists in a state by opinion from a Log-likelihood –13.65 –13.32 –13.37 logistic regression, and the gray lines represent 20 simulations to show uncertainty in the prediction. Statewide opinions are ap < 0.05. plotted on the top axis for states that have a policy and on the b p < 0.01. bottom for those that do not. cp < 0.001 (one-tailed tests).

As it remains the most parsimonious model, we predict The probability of having a liberal policy is quite differ- the probability that a state has a transgender-inclusive non- ent given the partisan make-up of the legislature. discrimination policy as it relates to policy-specific opinion Legislatures with a high percentage of Democrats are more using the bivariate logistic regression (Model 1). The rela- likely to be responsive to majority opinion, while legisla- tionship is positive and quite sharp. Once opinion reaches a tures with a low percentage of Democrats appear unrespon- tipping-point, there is a high probability of policy adoption. sive. While the presence of Democrats does not completely This tipping-point is far from a simple majority. Figure 1 account for the mismatch between majority opinion and suggests that, on average, a super-majority of 81% is neces- policy, the results clearly suggest that parties moderate the sary before the policy is likely to be adopted. influence of public opinion. We now address institutional and partisan factors affect- ing responsiveness. Lax and Phillips (2009a, 2012) show that these factors may explain why policies are inconsistent Discussion with opinion. In addition to the ideology measures pre- A pluralist understanding of political power is that social sented before, we include the Squire Index of Legislative groups may achieve some of their policy goals Professionalism (Squire, 2007), the percentage of the legis- (Stephanopoulos, 2015). Social groups, in this conception, lature that is aligned with the Democratic Party (averaged never have majorities but must form coalitions that create between the upper and lower chambers in each state), and compromises in the policy process. Minorities may then whether the state had a Democratic Governor in 2010. The have fair chances of passing policies they prefer results in Table 3 indicate that the party composition of the (Stephanopoulos, 2015). Powerlessness may then be under- legislature is another strong component affecting policy. As stood as a systematic lack of policies reflecting a group’s legislatures become more strongly Democratic, it is more interests relative to other groups. The basis of pluralist theory likely transgender-inclusive non-discrimination laws are is that coalitions of minorities rule. A democratic deficit sug- consistent with majority opinion. gests otherwise. To convey how this effect operates on transgender-inclu- Policy adoption may be responsive to the desires of the sive non-discrimination policies, we show the probability of public but, even so, it does not necessarily match the desires policy adoption by varying the strength of majority opinion of the formed majority. For minority groups, especially conditioned by how Democratic the legislature is. Figure 2 groups that will unlikely garner a majority of any legislature, provides three policy probability curves, each reflecting a municipality, or district, it is important to understand the different percentage of Democrats in the legislature.5 translation of majority opinion on . The best

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Table 3. Modeling factors affecting responsiveness.

DV = Transgender non- discrimination policy (in 2010)

(4) (5) (6) Variables b b b (s.e.) (s.e.) (s.e.) Public opinion 0.491c 0.408a 0.405a (0.14) (0.20) (0.20) Government ideology – 0.020 – (ADA/COPE) (0.03) Government ideology – – 0.017 (NOMINATE) (.04) Voter ideology – –0.023 –0.010 (0.11) (0.10) Professionalism – 0.04 0.036 (0.04) (0.04) % Democratic legislature – 0.105a 0.102a (0.05) (0.05) Democratic Governor – –0.273 –0.203 Figure 2. The probability that a transgender-inclusive policy (1.26) (1.28) is in place is plotted varying the share of the legislature that is c b b Intercept –39.66 –38.99 –38.97 Democratic. A “Low” Democratic legislature is one standard (10.93) (14.53) (14.36) deviation below the average level, and a “High” Democratic N 50 49 49 legislature is one standard deviation above the average level. Pseudo-R2 0.57 0.65 0.65 The white space indicates the range of opinion estimates to % CCV 88.2% 93.8% 93.8% indicate where the predictions are most applicable. AIC 31.30 35.48 35.88 Log-likelihood –14.47 –10.78 –10.94 with the majority will than legislatures. The legislature may actually be the counter-majoritarian body in this instance ap < 0.05. bp < 0.01. (see also Bishin, 2009). The findings also suggest that the cp < 0.001 (one-tailed tests). least responsive legislatures are reflective of partisan poli- Note: Nebraska excluded due to non-partisan legislature when N=49. tics. As parties strategically control the legislative agenda (Cox and McCubbins, 2005), they may intentionally or existing estimates of the transgender population suggest that unintentionally fail to act on prohibiting discrimination to a it is smaller than that of the LGB population, with transgen- vulnerable group of people who have disproportionate rates der people making up 0.3% of the population (Gates, 2011). of workplace discrimination. The presence of a democratic deficit raises substantial doubt about the health of state democracies on transgender non- Conflict of interest discrimination policies. Our findings are indicative of the None declared. political power of transgender people in the political process, though we are limited by necessarily focusing on a single Funding policy. A fuller study can evaluate whether a democratic defi- This research received no specific grant from any funding agency cit persists across numerous transgender rights policies when in the public, commercial, or not-for-profit sectors. policy-specific opinion polls are available. Future research may then address why and whether certain policy types have Supplementary material larger or smaller deficits. The online appendix is available at: http://rap.sagepub.com/ The present research adds to studies on public attitudes content/by/supplemental-data on transgender rights, and ours is the first to examine the relationship between opinion and policy adoption. Recently, Notes there have been judicial and administrative decisions that 1. The first transgender article appeared in 1982 while the first have determined that discrimination against transgender gay article appeared in 1972. If we compare the same time people constitutes a Title VII violation on the basis of sex. frame, the “gay” and “discrimination” articles comprise 916 These decisions may, from one perspective, be counter- articles. majoritarian. But our findings suggest that the courts and 2. We should note, however, that Stephanopoulos (2015) would administrative agencies may actually be more consistent require that we analyze more than a single policy area to fully

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assess political power. Our limitation is much more driven by Survey. Washington, DC: National Center for Transgender the available data. Equality and National Gay and Lesbian Task Force. 3. The 95% credible intervals are calculated from the posterior Halley JE (1989) The politics of the closet: towards equal pro- independent draws of θ ns. ims after post-stratification into l tection for gay, lesbian, and bisexual identity. UCLA Law strata averaging over by state yNns..ims = θ nsims / N , Review 36: 915–976. s ∑∑ll l ls∈∈ls Hartzell E, Frazer MS, Wertz K, et al. (2009) The State of which identify the 2.5 and 97.5 percentiles. Asymmetry in Transgender California: Results from the 2008 California the credible intervals is likely due to ceiling effects due to the Transgender Economic Health Survey. San Francisco, CA: logit link function constraining estimates between 0 and 1. Transgender Law Center. 4. Since opinion estimates are from 2011, the dependent vari- Hutchinson DL (2014) “Not without political power”: gays and able is whether the state had a transgender-inclusive non- lesbians, equal protection and the suspect class doctrine. discrimination policy by the end of 2010. Alabama Law Review 65: 975–1034. 5. Since Figure 2 is conditional, we do include interactions Lax JR and Phillips JH (2009a) Gay rights in the states: pub- between opinion and percentage of Democrats in the legis- lic opinion and policy responsiveness. American Political lature (results not shown). A “Low” measure is one standard Science Review 103(3): 367–386. below mean (28.8%), and a “High” measure is one standard Lax JR and Phillips JH (2009b) How should we estimate public deviation above the mean (64.2%). The white space in the opinion in the states? American Journal of Political Science figure represents the actual range of the estimates of majority 53(1): 107–121. support. 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