Earlier this year, the New Hampshire state legislature debated a measure that would have given voters the opportunity to enshrine protections on the basis of sexual orientation into the state constitution. The state, which already has a law on the books providing these protections, saw a constitutional amendment as a more permanent solution, unable to be easily repealed by future legislators. In all, this would appear to have been a positive step forward for the rights of gay, lesbian, and bisexual individuals.
As someone who believes that no one should be discriminated against on the basis of who they are as a human being, it might come as somewhat of a surprise that I was cheering against the bill, and ultimately, was happy to learn that debate had stalled. I feared that while this move would have been a step forward for the LGB portion of the LGBT acronym, it would make the fight for transgender rights that much harder.
In 2002, New York state passed the Sexual Orientation Non-Discrimination Act, a bill that provided statewide employment protections on the basis of one’s sexual orientation. While the inclusion of gender identity was briefly considered, the amendment including language that would extend protections to transgender individuals was ultimately defeated by a vote of 19-41. Governor George Pataki signed the transgender-exclusionary SONDA bill into law on December 17, 2002.
At the time, New York was the 13th state to enact workplace protections for gay, lesbian, and bisexual individuals. The thought process aimed at trans people at the time was, “We’ll come back for you.” Now, 12 years later, the New York legislature’s efforts to pass a standalone gender identity protection bill have stalled time and again. Without the full, powerful backing of large, nationwide LGBT groups like the Human Rights Campaign, trans individuals simply do not have the clout to successfully lobby standalone bills into law.
Currently, 21 states, along with the District of Columbia, have sexual orientation-specific protections in place. 17 of these 21 states include both sexual orientation and gender identity in their employment protection statutes. So why is it that blue state New York can’t seem to implement laws that much less liberal states like Minnesota, Nevada, New Jersey, and Iowa have in place? Simply put, including gender identity as part of a larger bill is effective. Splitting sexual orientation and gender identity into separate bills is a surefire way to all but guarantee trans exclusion.
This is why New Hampshire, which already has a statute protecting employment on the basis of sexual orientation, was right to not take the half-step of enshrining these protections in the state constitution without adding language to protect trans individuals. While including gender identity in the language may have hindered the amendment’s chance if the public would have been given the opportunity to vote on the matter, passing the amendment as is would have sent trans-identifying individuals out to the wilderness.
Why does this need to be a focus? For one, there currently isn’t any federal law in place to protect trans individuals from being fired for who they are. The federal Employment Non-Discrimination Act is stalled in Congress (and filled with holes brought on by a wave of religious exemptions) with little hope of passage, and at the moment, these state-level statutes are their only means of protection. As a result, the unemployment rate for trans people is double the national average, and more than one in four trans people have reported being fired after coming out as transgender, and more than one in five trans individuals have been denied a promotion as the result of their gender identity. This, in itself, leads to a series of other adverse outcomes for trans people, including elevated rates of poverty, homelessness, HIV infection, and assault.
If New Hampshire was going to take this monumental, positive step towards true equality, they needed to protect all citizens, not just a few. I hope that the state legislature will rework the amendment in a future session so that it includes gender identity protections.
How we treat our most vulnerable speaks volumes of our character, and so states should do that: treat the most vulnerable with respect, and make it clear that the state stands for the rights of all citizens. In doing so, they state can become a model for equality, an example used in the fight to extend these protections nationwide. If not, there’s simply protecting the rights of some at the expense of a few.