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Transgender Inclusion in State Non-Discrimination Policies

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Transgender Inclusion in State Non-Discrimination Policies RAP0010.1177/2053168015612246Research & PoliticsFlores et al. 612246research-article2015 Research Article Research and Politics October-December 2015: 1 –8 Transgender inclusion in state © The Author(s) 2015 DOI: 10.1177/2053168015612246 non-discrimination policies: rap.sagepub.com The democratic deficit and political powerlessness Andrew R Flores, Jody L Herman and Christy Mallory Abstract Transgender people—people whose gender identity or expression is different from their assigned sex at birth—and their allies advocate for the inclusion of gender identity 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 Transgender rights, policy responsiveness, public opinion Introduction Transgender people across the United States 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] Creative Commons Non Commercial CC-BY-NC: This article is distributed under the terms of the Creative Commons Attribution-NonCommercial 3.0 License (http://www.creativecommons.org/licenses/by-nc/3.0/) which permits non-commercial use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage). 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 (Executive Order 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 lesbians and gay men 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 lesbian, or support gay rights hate crime laws and policies that address marketplace equality (Flores, 2015; Norton and Herek, 2013). Beyond opinion (e.g. employment, housing protections).
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