'Two steps forward, one step back' in transgender rights legislation

Three states this week advanced laws on transgender rights that advocates might consider two steps forward, one step back.

California, which already has strong civil rights protections for transgender people, went a step further yesterday with a law that bars state agencies from doing business with companies that don’t offer equal health benefits for transgender employees. Massachusetts, too, moved to extend its protections, with a proposed law banning discrimination in public accommodation. Wisconsin, however, moved to limit the right of transgender schoolchildren to use bathrooms that match their gender identities.

California protects transgender employees from discrimination and mandates that employers provide them health care and other benefits. Legislation titled SB 703, which was signed by Gov. Jerry Brown on Wednesday, extends those protections to state contractors.

The law — which applies only to companies contracting at least $100,000 of business with state agencies and will take effect on Jan. 1, 2016 — is meant to address a gap in health care coverage for transgender people. Private companies hired as contractors by the state had been able to deny equal benefits to transgender employees if the companies’ headquarters were out of state, according to Michael Silverman, executive director of the Transgender Legal Defense and Education Fund (TLDEF).

Rick Zbur, executive director of Equality California, said in a news release that the law sends an important message: “If you want to do business in California, you have to treat all your employees equally."

Massachusetts had already passed laws barring housing, education, credit and employment discrimination based on gender identity. The state also has a policy requiring insurance companies to provide transgender-inclusive health coverage, and offers equal health benefits for all trans state employees, according to the Human Rights Campaign, an LGBT rights group.

But Massachusetts Attorney General Maura Healey and state Rep. Joe Kennedy III, a Democrat, appealed to state lawmakers during a Tuesday hearing to support newly proposed legislation to protect transgender residents from discrimination in public places such as restaurants and public restrooms. 

“Today, transgender individuals are protected against discrimination in public accommodations in 17 states, and the District of Columbia," Kennedy said at the hearing. He urged lawmakers to add Massaschusetts to that list.

But many conservative-leaning states have moved in the opposite direction, introducing bills within the last year that would curtail trans rights in the public sphere.  

Wisconsin on Wednesday joined Florida, Kentucky, Minnesota and Nevada in proposing legislation that would bar transgender children from using school bathrooms that match their gender identities. The bill would only allow students of a single gender to use school bathrooms or locker rooms, and it defines gender as biological sex assigned at birth. The proposal calls for Wisconsin’s Department of Justice to defend school districts if their policies are challenged in court.

Trans rights groups have denounced the bill as discriminatory. “Transgender young people already face immense harassment and bias when they are just trying to participate in their school environments as their authentic selves,” TLDEF's Silverman said. Since a few Wisconsin school districts have restroom polices that are transgender-inclusive, "this bill would roll back those policies and force school districts that have been supporting their transgender students to begin to target their students with discrimination," he added.

Based on what has happened in other school districts that have adopted single-sex bathroom policies, Wisconsin schools are likely to face lawsuits for violating Title IX, a federal education law guaranteeing equal rights for all public school students on the basis of sex.

Thirteen states and the District of Columbia have passed laws barring discrimination in schools on the basis of both sexual orientation and gender identity. Those laws effectively allow transgender students to use the bathrooms and play on the sports teams that match their gender identities.

"What we’re seeing overall is a major increase in attention being paid to trans issues," Silverman said. "It’s great when that attention comes in form of legislation that protects them. [But] It’s terribly unfortunate that for every two steps forward, we see opposition that’s trying to force the community to take a step backwards, as we’re seeing in Wisconsin at the moment."