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MSBA session talks complexities of gender identity discrimination

OCEAN CITY – While the issue of transgender rights is often discussed in the context of bathroom bills, a panel of attorneys and transgender rights activists said Thursday the discrimination issues are much more complicated.

Some 19 states and the District of Columbia have laws offering comprehensive anti-discrimination coverage for transgender people. The Maryland General Assembly in 2014 passed the Fairness for All Marylanders Act, which is enforced by the Maryland Commission on Civil Rights.

“The reason we had to have this law is that people were being harmed,” Glendora Hughes, general counsel at the Maryland Commission on Civil Rights, told attendees during an education session at the Maryland State Bar Association’s Annual Meeting hosted by Administrative Law Section.

The passage of the Maryland law was what Hughes and other panelists described as 17-year education for legislators on issues surrounding transgender rights.

“The same is happening with society,” Hughes said, adding that as people are becoming better informed, conflicts surrounding gender segregated spaces will decrease.

Transgender people have become part of the national discourse by way of popular culture, including Caitlyn Jenner’s public transition, the popularity of Laverne Cox for her work on the Netflix series “Orange is the New Black” and the critical acclaim of Amazon TV series “Transparent,” panelists said.

Businesses and athletic organizations, meanwhile, distanced themselves from North Carolina amid House Bill 2, which would require individuals to use bathrooms according to the sex written on their birth certificates. The controversial law cost the state around $4 billion in lost revenue.

The Maryland law defines “gender identity” as gender related to the person’s appearance, expression or behavior, regardless of the person’s sex assigned at birth, which can be demonstrated by the person’s “consistent assertion” of their gender identity or any other evidence that the person’s gender identity is a “sincerely held part of who they are.”

That distinction was added to distinguish between trans people and those who may dress up from time to time for a job or other purpose, Hughes said.

The law focuses on discrimination in employment, housing, public accommodation. When passing the Maryland law, the public accommodation aspect was the most contentious, Hughes said.

“It came down to, what bathroom is the person going to use?” she said.

The General Assembly added an amendment that the law would not apply to private facilities such as gyms, spas and swim clubs provided the facility offers a functionally equivalent private space.

Future changes?

There’s one aspect of the Maryland law that may change in the future, said Dana Beyer, panelist and executive director of Gender Rights Maryland.

The current language conflates gender and sex, even though sex is based on biological factors including genitalia, chromosomes, genes and the brain while gender refers to socially constructed roles and behaviors.

“Until 2014, conflation gender and sex made sense,” Beyer said. “I bet the sex versus gender conflation of the law will be teased apart.”

Earlier this year, the U.S. Department of Education rolled back protections for transgender students, a move Beyer called “symbolically…nasty and evil.” That rollback caused the U.S. Supreme Court to stay a case brought by Gavin Grimm, a transgender high school student who sued his school board in Virginia for its discriminatory bathroom policy.

The Department of Education’s actions signaled to transgender rights activists that they are  unlikely to get support from the federal government, panelists said.

“We’ve lost temporarily the federal support of the president,” said Jennifer L. Kent, managing attorney at FreeState Justice. “We have to make sure Maryland is a state that continues to protect all of its people.”

Hughes agreed.

“It’s usually the local and state government that advance in this area first before it moves nationally,” Hughes said. “We’re not waiting for the national government or the federal government.”

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