LGBT legal experts on what went right in Massachusetts, wrong in Houston


On the Equality Forum legal panel: Janson Wu, Shannon Minter, James Esseks and R. Bradley Sears. Photo: Paige Cooperstein, Philadelphia Gay News

Laws protecting the transgender community from discrimination will take center stage in the next four years as a new president settles into the top job in the United States.

Equality Forum, which moved its annual event to coincide with the Democratic National Convention, started Monday at the National Museum of American Jewish History in Old City.         

Experts on the legal panel talked about the need to get existing laws that prohibit discrimination based on sex to cover the LGBT community. They noted five courts of appeal, covering 26 states and 55 percent of the country’s population, have affirmed LGBT-inclusive interpretations of the laws.

R. Bradley Sears, executive director of the Williams Institute at the UCLA School of Law, moderated the panel. Speakers included James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender and HIV Project; Shannon Minter, litigation director with the National Center for Lesbian Rights; and Janson Wu, executive director of GLBTQ Legal Advocates and Defenders.

Roberta Kaplan, who argued the U.S. Supreme Court case that dismantled the Defense of Marriage Act, was scheduled to appear. But she had to cancel for a work conflict.

The panel deconstructed two legal touchstones for transgender people: a Massachusetts law that prohibits discrimination in public accommodations, and a Houston law that, when repealed, scrapped discrimination protections for all LGBT people.

Wu on Massachusetts: 

“Massachusetts just passed transgender public accommodations protections a week ago, signed by Republican Gov. Charlie Baker…It was pivotal for progress across the country that Massachusetts do this. People point to Massachusetts as a standard bearer, or the boogeyman, from whatever perspective you look at it. If Massachusetts doesn’t have these protections, how do we convince other states to pass them as well?

“What we had done is we had fought for comprehensive protections…over five years ago…We were just about at the finish line to pass protections for transgender people. At the eleventh hour, the legislature threw a wrench at us and said, ‘We’ll pass it, but not with public accommodation protections.’ This was a real moment for the local community in Massachusetts as to whether to accept this or not.

“We decided that we couldn’t blink at that moment because they really were testing our resolve. We said, ‘Absolutely. We’re going to get these really important protections for trans people in their workplace because that is so critical to their livelihoods. And, we’re going to come back in the next session and we are going to push for public accommodation protections.’

“We spent the next five years trying to get that across the finish line. It was not easy. It took a lot of energy, a lot of time, a lot of money. But it shows that in order to be victorious, we have to kind of be in it for the long haul. I think that’s what the story of Massachusetts has always been: It takes a lot of persistent and consistent resources to win these legislative battles.”

Esseks on Houston: 

“Last November, folks may remember a ballot initiative in the city of Houston, a city that had elected a lesbian mayor twice, but then at the ballot repeals a civil rights law that covered LGBT people.

“The campaign [against the law] was all about no men in women’s restrooms. We got clobbered in that election. We weren’t prepared to talk about trans people in restrooms. We weren’t ready to get people to sort of calm down and realize what the reality of the situation was.

“What’s wonderful to see now is that the national conversation around these issues is entirely different. I’m not saying that everybody agrees with us. But we defeated lots and lots of these bills in the states.

“When HB2 passed in North Carolina, the business reaction was extraordinary…The NBA says, ‘We’re pulling the All Star Game.’ Bruce Springsteen says, ‘I’m not doing a concert,’ and several others like that. That’s a degree of support from various parts of American society that we didn’t see in Houston.

“I think the difference is we finally got over being shy and awkward about talking about restrooms. We said, ‘You know what, this is just something we have to talk about.’ We did that when there was a bill in South Dakota. We did that when there was a bill in Tennessee.

“We did that in North Carolina, as the bill was being proposed. But it was proposed in one day and passed in one day, so we didn’t have a whole lot of time to have a dialogue. But the national conversation around this is night-and-day different from just last fall. That’s what makes me an optimist in this situation.”

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