A Post-2007 Transgender Legal History Told Through the Eyes of the Late, (Rarely) Great Employment Non-Discrimination Act

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A Post-2007 Transgender Legal History Told Through the Eyes of the Late, (Rarely) Great Employment Non-Discrimination Act William & Mary Journal of Race, Gender, and Social Justice Volume 23 (2016-2017) Issue 3 William & Mary Journal of Women and Article 5 the Law April 2017 Has the Future Already Been Forgotten? A Post-2007 Transgender Legal History Told Through the Eyes of the Late, (Rarely) Great Employment Non-Discrimination Act Katrina C. Rose Follow this and additional works at: https://scholarship.law.wm.edu/wmjowl Part of the Civil Rights and Discrimination Commons, and the Sexuality and the Law Commons Repository Citation Katrina C. Rose, Has the Future Already Been Forgotten? A Post-2007 Transgender Legal History Told Through the Eyes of the Late, (Rarely) Great Employment Non-Discrimination Act, 23 Wm. & Mary J. Women & L. 527 (2017), https://scholarship.law.wm.edu/wmjowl/vol23/iss3/5 Copyright c 2017 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmjowl HAS THE FUTURE ALREADY BEEN FORGOTTEN? A POST- 2007 TRANSGENDER LEGAL HISTORY TOLD THROUGH THE EYES OF THE LATE, (RARELY) GREAT EMPLOYMENT NON-DISCRIMINATION ACT KATRINA C. ROSE* INTRODUCTION A. Historical Preface B. Mapping Out a Decade C. Mapping Out the Article I. 2007: AN ILLUSION OF INCLUSIVITY, THE IMPLOSION OF THE ILLUSION, AND THE INTRANSIGENCE OF INSTITUTIONS A. The Public Preface B. Before the Hearing 1. Promise 2. Assurance C. After the Summer 1. A Question 2. An Explicit Message 3. An Implicit Message 4. A History Lesson D. Battles E. A Hole in the Poll F. Recovery and Redux G. Thought and Afterthought II. 2009: DIFFERENT ILLUSIONS, NEW BETRAYALS, OLD EXCUSES A. The Military Percentage B. Ode to January 20, 2017 C. ENDA 2009 1. Fifteen Years After 1994 2. The Mystery of Change D. Legislation for the Dead, Crumbs for the Living 1. Promises 2. Reflections on Ratios 3. Protection of Stratification * JD, South Texas College of Law; BED, Texas A&M University; MA (History), University of Iowa; currently a doctoral candidate (History), University of Iowa. Though there are some differences, this Article essentially tracks the final two chapters and conclusion of my dissertation: Forgotten Paths: American Transgender Legal History, 1955–2009. Special thanks to The Morning Crew: Anthony Peoples, Emily Scarlett, Mike Panicucci, Jordan Ruggles and Chris Langlois. 527 528 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [ V o l. 23:527 4. Remembrance 5. Prosecuting Expendability E. Disappearance III. PIECES OF FORGETFULNESS A. A Phantom ENDA and a Phantom Denial B. A Phantom Promise C. A Phantom Report D. How History Becomes a Phantom CONCLUSION A. Reflection B. Observation C. A Forward-Looking Lamentation INTRODUCTION A. Historical Preface Giving the statute its plain meaning, this court concludes that Congress had only the traditional notions of “sex” in mind. Later legislative activity makes this narrow definition even more evident. Several bills have been introduced to amend the Civil Rights Act to prohibit discrimination against “sexual preference.” None have been enacted into law.1 The course of federal transgender anti-discrimination law over the last quarter of the twentieth century is well-known to practitioners and scholars who focus in the area. Likewise, it would tend to be- come well-known in the moment to trans people seeking redress in the federal courts that they would find out that there was no avenue of redress.2 Success, when it finally arrives, can breed amnesia and an accompanying over eagerness to look forward without caring that the past can be prologue. Perceived success, be it truly nonexistent or simply less than it actually is, can be even more problematic.3 Even dangerous. 1. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977), overruled in part by Schwenk v. Hartford, 87 F. Supp. 3d 1118–19 (N.D. Cal. 2015). 2. Courtney J. Jefferson, Comment, Gender Confusion: The Need for Effective Legisla- tion to Protect Against Gender Identity Discrimination, 39 U. BALT. L. REV. 137, 147 (2009). 3. See Dana Beyer, Trans Americans Enjoy Robust Bias Protections, WASH. BLADE (June 28, 2012, 9:02 AM) http://www.washingtonblade.com/2012/06/28/trans-americans -enjoy-robust-bias-protections [http://perma.cc/RU6QLSQ9] [hereinafter Trans Americans Enjoy Robust Bias Protections]. 2017] HAS THE FUTURE ALREADY BEEN FORGOTTEN? 529 Trans people rightly are afraid of what the Trump Administration will bring; promises of systemic change will be led by anti-LGBT cul- tural warriors of years past,4 and magnified by a younger generation of radical conservatives, some gay and harboring hatred of trans people.5 But the first years of the twenty-first century did see a marked shift, judicially and administratively, away from a viciously negative trend which began in the 1970s.6 Legislative advancement has, thus far, proven to be more elusive.7 This Article is about that lack of advancement during sessions of Congress when such ad- vancement seemed eminently possible—to some, even probable. Any analysis of what has proven to be an era of stagnancy requires an understanding of what trans people saw as the bag they would be left holding should they be left out of federal legislation. And that under- standing necessarily begins with a synopsis of how a quarter cen- tury of hopelessness gave way to some hope, but nothing concrete.8 Holloway v. Arthur Andersen & Co., decided by the Ninth Circuit Court of Appeals a few days before Christmas, 1977, and from which 4. See David Badash, Trump Head of Domestic Issues Is Senior Fellow at Anti-Gay Group FRC, THE NEW CIVIL RIGHTS MOVEMENT (Nov. 10, 2016, 5:17 PM), http://www .thenewcivilrightsmovement.com/davidbadash/trump_head_of_domestic_issues_is _family_research_council_senior_fellow [http://perma.cc/Y5NNSK83]. 5. See Erin Fitzgerald, Breitbart News Published Slur-Filled Talk Given By Senior Editor Milo Yiannopoulos At The University of Delaware, MEDIA MATTERS (Oct. 25, 2016, 2:48 PM ) http://mediamatters.org/blog/2016/10/25/breitbart-news-published-slur-filled -talk-given-senior-editor-milo-yiannopoulos-university-delaware/214102 [http://perma .cc/F4YMVQA7] (describing Yiannopoulos’ speech); see also Lucas Nolan, Milo Explains Why He’d Probably be Straight if He Could (Sept. 20, 2016), http://www.breitbart.com /milo/2016/09/20/milo-i-would-take-a-straight-pill/ [http://perma.cc/85Z7SMA8] (identifying Milo Yiannopoulos as homosexual). Though Yiannopoulos has not (yet) landed a position in the Trump Administration, Breitbart’s head, Steve Bannon, has. Michael D. Shear et al., Critics See Stephen Bannon, Trump’s Pick for Strategist, as Voice of Racism, N.Y. TIMES (Nov. 14, 2016), http://www.nytimes.com/2016/11/15/us/politics/donald-trump-presidency .html [http://perma.cc/FL7UJQE4]. 6. See Schwenk v. Hartford, 204 F.3d 1187, 1200 (9th Cir. 2000). 7. I refer to federal law. Year 2001 saw other states begin to follow Minnesota’s lead of almost a decade earlier. R.I. GEN. LAWS § 34-37-2.3 (West 2001). In 2016, trans- inclusion at the state level is the rule rather than the exception, with only Wisconsin, the oldest state gay rights law, New York, and New Hampshire remaining gay-only. WIS. STAT. ANN. § 111.31 (West 2015); N.H. REV. STAT. ANN. § 354-A:6 (2016); N.Y. EXEC. LAW § 296(1)(a) (McKinney 2016). 8. I do not discuss herein the quasi-successes under the Rehabilitation Act given that whatever precedent they may have established were wiped out by amendments to the Fed- eral Housing Act, the creation of the Americans with Disabilities Act and later amendments to the Rehabilitation Act. See Blackwell v. U. S. Dep’t of Treasury 639 F. Supp. 289, 290 (D.D.C. 1986), supplemental op., 656 F. Supp. 713 (D.D.C. 1986), aff’d in part and vacated in part, 830 F.2d 1183 (D.C. Cir. 1987) (analysing a transvestite individual’s claim under the Rehabilitation Act); Doe v. U.S. Postal Serv., No. 84-3296, 1985 U.S. Dist. LEXIS 18959 (D.D.C. June 12, 1985) (finding that the plaintiff had a valid claim under the Rehabilitation Act); H.R. 1158, 100th Cong. § 6(b)(3) (1988) (excluding transvestites from the definition of disability); Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12208 (West 1990) (in- dicating that neither homosexuality nor transvestite characteristics qualify as a disability). 530 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [ V o l. 23:527 the paragraph at the beginning of this Article is taken, was not the first Title VII transsexual case.9 In early 1975, hemodialysis techni- cian, Carol Voyles, had informed her employer, the Ralph K. Davies Medical Center in San Francisco, of her intention to transition from male to female.10 She was immediately terminated for that reason.11 When she sued later that year, claiming discrimination based on sex, District Judge Spencer Williams, a Nixon appointee, agreed with the medical center’s contention that Voyles’ claim failed to state a claim upon which the court could grant any relief.12 Also in 1975, another Nixon appointee, George Barlow, rejected Paula Grossman’s Title VII claim in her suit against the New Jersey school district that had employed her.13 The majority opinion in Holloway, how- ever, authored by still another Nixon appointee, District Judge Leland Nielsen, was the first appellate opinion construing federal sex discrimination law against transsexuals.14 It would not be the last. Together with subsequent decisions against Iowa clerical worker, Audra Sommers,15 and Illinois pilot, Karen Ulane,16 Holloway was 9. Compare Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661–62 (9th Cir. 1977), with Voyles v. Ralph K. Davies Med. Ctr., 403 F.
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