The proposed Fairness for All Marylanders Act 2013 (SB0449)[i] symbolizes important legal protections for gender non-conforming individuals. The bill proposes to do this by amending the current Humans Relations laws to include prohibitions against discrimination on the basis of “gender identity.”
Unfortunately, the bill is not well-written. The proposed definition of “gender identity” allows individuals to override classification on the basis of sex [red highlight added by me, not in original]:
23 (E) “GENDER IDENTITY” MEANS A GENDER–RELATED IDENTITY,
24 APPEARANCE, EXPRESSION, OR BEHAVIOR OF AN INDIVIDUAL REGARDLESS OF
25 THE INDIVIDUAL’S ASSIGNED SEX AT BIRTH.
The use of the term “regardless” gives permission to disregard sex. In fact, “gender identity” requires us to disregard sex. In most contexts, treating people differently by sex is inappropriate. These contexts include employment, housing, education, most public accommodations. But there are other, very particular settings– such as bathrooms, locker rooms, and showers[ii] — that demand sex-segregation.
Women should know that Section 20-303(2) of Maryland’s existing Human Relations Bill[iii] already recognizes the need for privacy in certain facilities. Here is the text of the law [with my suggested addition in brackets]:
20–303. SCOPE OF SUBTITLE.
THIS SUBTITLE DOES NOT APPLY: ……
(2) WITH RESPECT TO SEX [suggested: OR GENDER IDENTITY] DISCRIMINATION, TO A FACILITY THAT IS:
(I) UNIQUELY PRIVATE AND PERSONAL IN NATURE; AND
(II) DESIGNED TO ACCOMMODATE ONLY A PARTICULAR SEX;
The Fairness for All Marylanders Act would effectively negate the protection of sex-segregated spaces by allowing any individual with a “gender identity” to enter any facility of a uniquely private and personal nature regardless of the person’s sex. That is not fair to girls and women. Women’s private spaces are affected by this legislation and we have a right to protect our own interests, especially where they are being surreptitiously eroded without notice or concern by most observers.
The unintended consequence of overriding women’s rights with hasty legislation can be easily avoided by adding 3 words “or gender identity” to Section 20-303(2) as suggested above. It’s that simple.
And in the meantime, sex discrimination is currently illegal and has been used very effectively to protect “trans” people.[iv]
~Elizabeth Hungerford, March 6, 2013
[ii] As another example of placing reasonable restraints on the use of “gender identity” to override Sex, the proposed federal Employment Non-Discrimination Act (ENDA) of 2011 contains an exception that, in certain contexts, would allow an employer to offer similar but different accommodations without being in violation of the non-discrimination law. From Section 8 of the proposed legislation:
(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
Accessed here: http://www.govtrack.us/congress/bills/112/s811/text
[iv] Sex discrimination as legal strategy is effective: https://sexnotgender.com/sex-discrimination-as-legal-strategy/