In an interview with Bloomberg TV’s Al Hunt, Wisconsin governor Scott Walker lauds the effectiveness of their anti-discrimination law that is “very similar to [ENDA].” He then follows this up by pointing out that the state has a constitutional amendment banning same-sex marriage. In his mind, this constitutes a “healthy balance.”
I have to wonder, “a healthy balance” of what, exactly? It seems somewhat bizarre to think of civil liberties as something that can be balanced or split into some sort of “pros and cons” list. In the most basic sense, what Walker is doing is nothing more than the political maneuvering of a man with ambitions of bigger and better things in his future.
First, it’s important to note that the law Walker claims is “very similar” to the Employment Non-Discrimination Act isn’t quite as similar as he’d lead us to believe. While ENDA, as recently passed in the U.S. Senate, would bar employment discrimination against individuals on the basis of sexual orientation and gender identity, Wisconsin’s employment protection laws only ban discrimination on the basis of sexual orientation. More succinctly, in the state of Wisconsin, it’s still 100% legal to be fired simply for being transgender.
Wisconsin, like New York, New Hampshire, and Maryland, have employment protections in place for lesbian women, gay men, and bisexual people, but exclude transgender individuals. As is often the case when it comes to employment protection, barring discrimination on the basis of gender identity has a tendency to be the bargaining chip sacrificed for the sake of getting the protections on sexual orientation protections implemented. The most recent example of this was New York’s passage of protections on the basis of sexual orientation. Trans advocates were given the all-too-familiar “we’ll come back for you” line, but as soon as sexual orientation protections passed, the LGB supporters who promised to push for separate, gender-based protections diminished in numbers, and hopes for reform faded.
Don’t get me wrong. I absolutely adore Madison and Milwaukee. Being from Chicago, those two Wisconsin cities are absolutely perfect destinations for short, weekend getaways. Nothing beats stopping at Mars Cheese Castle on the way up to grab a case of New Glarus Brewing’s “Spotted Cow,” and enjoying a lazy weekend in beautiful Wisconsin. Still, as much as I love the state, I feel uncomfortable knowing that should I ever make the move up there, I could be fired just for being me. It’s for this reason that my neighbor to the north will remain a neighbor and nothing more.
Employment protections aside, Wisconsin’s history of LGBT-specific gains have largely come as incremental gains, often at the hands of the court system. As was the case in many states during the 19th century, at the time of Wisconsin’s statehood, sodomy was an illegal act, punishable by up to 5 years in prison. In 1897, the act of fellatio was added to that law’s definition. By 1959, the state placed a ban on driving by anyone convicted of “sexual perversion,” which included any homosexual acts.
During the ‘70s, the Wisconsin Supreme Court eventually ruled that sexual acts between a husband and wife should be exempt from these anti-sodomy, anti-fellatio laws. In 1977, sodomy was reclassified from a felony to a misdemeanor. In 1982, Wisconsin banned discrimination on the basis of sexual orientation in housing, education, credit and public accommodation. These protections were not, however, extended to transgender individuals. In 1983, the state finally decriminalized private, consensual acts of sodomy among all adults (albeit, attaching a rider on the bill stating that they did not officially condone any sex act that occurred outside of marriage).
In 2001, Wisconsin enacted a law that would protect discrimination against K-12 students on the basis of their sexual orientation. That said, there is no provision within any Wisconsin law that protects students from discrimination or bullying as a result of their gender identity.
Similarly, Wisconsin’s hate crimes law explicitly addresses violence on the basis of sexual orientation, but says nothing about gender identity. This law was passed in 2002.
In 2005, they passed a statute that would deny hormone replacement therapy to transgender prisoners, titled the Inmate Sex Change Prevention Act. This law was struck down in 2011 by the Seventh Circuit Appeals court on the grounds that denial of necessary medical treatment — as hormone replacement therapy is classified by most major medical organizations — is a violation of the eighth amendment’s ban on cruel and unusual punishment. The state, under Scott Walker’s control, defended the law, requesting that the U.S. Supreme Court consider the case. Their request was denied.
In summary, Scott Walker’s claim that there exists a balance between state laws that protect LGBT individuals and laws that actively discriminate against LGBT individuals, is utter nonsense, especially if you consider it from the point of view of a transgender person. What balance is there? I’m not protected under state hate crime laws, school bullying statutes, and employment, housing, and public accommodations protections. As recently as last year, the state spent significant funds in an effort to deny people like me necessary medical treatment in prison.
This definition of “balance” makes perfect sense from Walker, seeing what he considers a “balanced budget.”