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  1. Statewide GENDA Call-In Day : The Curvature

    […] cross-posted at Feministe […]

  2. Thomas
    Thomas May 20, 2009 at 10:05 am |

    It went like this:

    “Hi, have you been fielding calls all morning on GENDA?”
    “Yes, of course!”
    “Well, I’m a loyal Democrat from [town], and I know [my Senator] a little bit, and I usually like the way we’re represented in Albany, and I want to tell you that it’s really important to me that [my Senator] gets behind GENDA. This is basic legal protection for some of our citizens who have the hardest lives and the fewest safeguards.”
    “Would you like to leave your name?”
    “Absolutely. I am [real name], and [my Senator] may know that name because I’ve been a guest at [my Senator’s] home for events. I’m in [town], and please tell [Senator] this is really important to me because it’s about basic fairness, and it’s the right thing for New York.”

    I’m not too worried about my Senator, and I know for sure my Senator is on the right side of the whip count on marriage equality. But adding my voice can only make it easier to do the right thing. Also, I’m privileged. I have money to give and I rub some elbows in political circles, and if I can use that position to throw my name recognition, however marginal, behind this, then I should.

  3. Thomas
    Thomas May 20, 2009 at 10:13 am |

    CRITICAL UPDATE:

    The bill is in committee, before Investigations, chaired by Craig Johnson. His staff is at (518) 455-2622. He needs to release it. He is a Dem from District 7 in Nassau County on the Island. Please, please call him, especially if you’re from his district.

  4. Thomas
    Thomas May 20, 2009 at 10:18 am |

    It is now my understanding that the bill was on the Investigations agenda, then taken off at the sponsor’s request, which is probably a concern over the whip-count.

    Which means Duane needs to have the votes before he moves it. Which means get calling your Senators, NY voters, and tell them that GENDA is the right thing, the wise thing, and the popular thing and they need to get on board.

  5. Holly
    Holly May 20, 2009 at 10:29 am |

    Hi. Trans woman of color living in New York State here. Unable to support GENDA, sadly, out of principle. I don’t want to participate in throwing more people under the bus, not when that kind of maneuver has played such a large and horrible role in these issues in the past.

    Although I have the highest hopes for the non-discrimination aspects of the bill and find the hard work that has gone into it for years (and all the phone calls made recently and today) incredibly valuable… I regret that I can’t participate in these kinds of actions. Along with a significant chunk of the queer and trans community around here, I cannot support a bill that includes sentencing enhancements for hate crimes and needlessly endangers the most marginalized and voiceless members of our communities for no reason but political business-as-usual. So I am regrettably sitting this one out.

    I would have added “please ask your Senator to support removing the hate crimes provision of GENDA,” but it’s far too late for that at this stage, and they pretty much refused to listen to the community objections back when something could have been done.

    For more background information on why the Sylvia Rivera Law Project, FIERCE, Queers for Economic Justice, the Audre Lorde Project, and the Peter Cicchino are not supporting GENDA, please read this statement that I helped draft. I’d be happy to answer any questions.

    An additional clarification: I am not suggesting that anybody else refrain from calling their senators or join the non-support contingent. In fact, I am very glad Cara is calling attention to the issue. I’ve actually thought about posting my thoughts and comments (and the above link) in a post of its own, but I actually don’t think we necessarily need more people standing aside from GENDA. I can’t support it, but I understand if other people feel like it’s important to and want to. So I’m grateful to Cara for posting on this topic, because it makes more sense to me to provide information and raise awareness about the harmful side of GENDA in comments, rather than in a stand-alone post.

    Please don’t support sentencing enhancements for hate crimes! These laws have been shown to hurt the communities that left-wing proponents intend them to protect, especially people at the intersection of multiple oppressions! They provide no real benefits to marginalized communities, and are mostly a symbolic political bargaining chip — please don’t trade away people’s lives and freedom for that. Thank you!

  6. Thomas
    Thomas May 20, 2009 at 10:48 am |

    The whole US criminal justice system is massively and unequally punitive. Holly’s critique is trenchant. Lots of folks I respect think that hate crimes provisions just add jail sentences without adding real protection. But the job discrimination issues around gender expression are so huge that I wouldn’t feel right sitting this out — nor does Holly suggest we should.

    About the committee, it can’t hurt to call Johnson and let him know that there’s a lot of support to move this bill when the sponsor thinks it has the votes. But what I’ve heard this morning is that the votes of each Senator are the important ones.

  7. Holly
    Holly May 20, 2009 at 11:21 am |

    Thanks guys — I know it’s a lot to chew on, especially because when you look at the statistics and what actually happens “on the ground,” it’s really disturbingly undercuts the whole idea of hate crime laws and the intended ethics of them. Of course, it’s important not to close our eyes to these facts. Many of our most principled-seeming political objectives can actually have the effect of arming and pumping up the machinery of a thoroughly and destructive prejudiced system. We’ve had the same kind of conversation around here before with regards to the relationship of feminism to the intersection of domestic violence activism and strengthening punitive criminal justice. So that’s part of why I bring this up: we can’t just pretend that liberal reforms are simply “improving” corrupt systems when they also strengthen the weapons that are used to destroy lives and communities.

    The hate crimes provision of GENDA is VERY much out of the spotlight when GENDA’s been promoted. As I understand it, that section of the bill just kind of got shoved in there as part and parcel of making trans people a “protected class.” When objections came up, nobody working on the bill in the lobbies or the legislature was willing to do any kind of work to deal with that business-as-usual system. Plenty of reasonable-sounding arguments were made about how non-discrimination just “comes with” hate crimes just like a Happy Meal comes with a soda, how it would endanger the bill to try and make changes or find fault with part of it, how hate crimes are not really a problem here in New York, etc. Sadly, nobody’s seriously questioning the fact that sentence enhancements are by and large a destructive force for trans communities. It’s kind of hard to deny the stats.

    But yeah, nobody even knew there was a sentencing enhancement component, nobody was talking about that part, probably in part because some people involved more intimately with the bill’s language were aware that it’s problematic. Some of the supporters of the GENDA coalition pretty much just stumbled across it in reading the bill, and we raised it as a question at a public town hall meeting, and there was some debate, and many people and organizations felt it necessary to step back from supporting GENDA directly.

    One other thing with regards to what Thomas said — you’re absolutely right that non-discrimination in employment, housing, and public accomodations is incredibly important. In fact, the legal work of my organization benefits from having more non-discrimination law to use as ammunition — for instance, when we go up against people who are discriminating against trans people in those areas and others. I’m mentioning this because the direct services work we do deals both with discrimination and with the risk of “hate crimes” being leveled at our clients and community on an everyday basis. We’re talking about people and communities who are also being hit hard by racism, poverty, homelessness, and a half-dozen other oppressive forces.

    Obviously, it is hard or impossible to just do a straightforward calculus of “does the good outweigh the harm?” when it comes to “discrimination vs. hate crimes” and I’m not even sure that scale-balancing is useful. Here is the thing though — as incredibly useful and symbolically powerful as an employment non-discrimination law is, it is not a panacea that can suddenly change realities on the ground. Institutions and employers don’t just stop discriminating, and it is usually really hard to prove that they are. A bill like GENDA is just one brick in the wall and a crucially important one that has got to be tackled sooner or later. Preferably sooner! But there’s so overwhelmingly much more to the picture. I have personal experience, and our community and organizations have personal experience, with what it’s like to live in a jurisdiction before and after such a law passes, and it does make a difference, especially symbolically. In the minds of people; in confidence and assurance walking into a job interview; in the public construction of what’s “right and wrong” from the legal point of view, which really does affect a lot of people who might discriminate.

    At the same time, I have heard first-hand stories about some of the largest and most influential employers in jurisidictions that HAVE non-discrimination laws literally laughing them off as a joke, because they’re confident they can’t be touched by them. I’ve witnessed lawyers that specialize in discrimination cases laughing at the idea that they could be affected by such laws. In some ways it’s especially hard for trans people, because there are so many “gotchas” and loopholes that discriminators can dive right through, as case law has shown. Only very sloppy or ignorant employers or institutions get caught with their pants down, you know? This is a problem with discrimination law in general.

    I’m not saying by ANY stretch that I think GENDA isn’t incredibly valuable and useful and a hugely important effort and use of people’s time and energy for more than a decade — it certainly is and has been. It is of inestimable symbolic value, I think that’s also the level at which it’s easy to believe that of course, non-discrimination acts are a Very Good Thing and also that hate crimes laws are a Good Thing and we should fight for both of them. I just want to encourage everyone to also do research and listen to folks who are directly affected and figure out what these kinds of laws actually mean in real application — especially for the people who are the most marginalized, most in danger, with the least political voice. Thanks.

  8. GallingGalla
    GallingGalla May 20, 2009 at 11:59 am |

    holly@10: i have to pretty much agree with this.

    for myself, how many times do i have to get no-callbacks from employers, responses like “well she’s got the tech skills but the other person really *wowed* us with his presentation” and recruiters just disappearing and not returning phone calls after i come out as trans (which i have to cos of gender no-match) to come to the conclusion that they are not wanting to hire a trans women with asperger’s? and which is it – cissexism or ableism or both?

    point being that employers, landlords, etc find ways to continue to discriminate in such a way as to make it extremely difficult or impossible to prove discrimination. so while the laws are important, they aren’t really helping my life very much.

    i used to be an enthusiastic supporter of hate crime legislation. the more i find out how much they are used against marginalized people the more my support for said legislation erodes.

    i guess my question is, how do we, as a society, express that committing a hate crime against a marginalized person is unacceptable? it’s not that i think the legislation is the only way, but that i just don’t know how else to express it.

    on a somewhat more practical level, one thing i see is that hate-crime legislation is written without taking power relations into consideration, which makes it very handy as a tool against the oppressed. it results in this thing that’s all feel-good and makes white middle-class people – like myself – feel warm in fuzzy inside, while giving law enforcement another tool of oppression.

    if such legislation were (re)written so the sentencing enhancements would be applied only if a person with a privilege made a hate-based attack against a person without that privilege (e.g. a white person could get a sentence enhancement from attacking a poc, but not the other way around), do you think that would help? i could still see scenarios where law enforcement could worm their way past that one.

  9. Thomas
    Thomas May 20, 2009 at 1:19 pm |

    I have a thought about employment discrimination laws. My thought is that the actual ability to enforce the law is secondary to a more nebulous but more powerful effect. The cases themselves are often tough to bring because people are often smart enough not to write what they say. But people are not often smart enough to convey what they think without saying it. My thought is that making a certain kind of discrimination actionable civilly works more through the unofficial enforcement mechanism of people in hiring positions policing each others’ language.

    (I’m importing the notion from Tom Stoppard’s Rosenkrantz and Guildenstern are Dead — and other places, it’s an old idea — that what we can say circumscribes what we can convey and even what we can think.)

    What I’m suggesting is that if, for example, discrimination against women is civilly actionable, it hands the people around the conference table whose heads are in the right place a weapon. They can say, “that sounds like you have a problem with her because she’s a woman, and you can’t do that, and you can’t even say that, because that will get us sued.” That’s more powerful that a right to file a case after the fact — but it requires that someone have the guts to say it, which in many companies and environments, they won’t. So, for example, in some industries someone will say, “you can’t say that, because it’s discriminatory,” while in some Wall Street firms, the culture of male dominance is so entrenched that no decisionmakers are willing to stick their necks out by challenging it.

    Which is to say that the tools of legal protection only work well when there are already people willing to fight to use them. Which … is true of every kind of legal protection. The law is not self-executing.

  10. Emma
    Emma May 20, 2009 at 1:25 pm |

    Nobody wants to quote the actual language of the bill? These things are typically written overbroadly and very badly such that women and gays/lesbians are faced with having to call themselves transgender to get protection.

    Typically these bills, unlike other anti-discrimination laws, protect behavior, i.e. “gender expression”, rather than classes of people, i.e. women, gays/lesbians, transgendered. It creates a catch-22 for women and gays/lesbians who may NOT consider anything they do or are as part of some “gender expression” or “gender identity”. But, because of the overbroad writing of these statutes, there’s a very real possiblity that women and gays/lesbians will be forced to seek protection under laws that don’t apply to them, like these statutes, instead of laws that do apply to them, like Title VII. Don’t support these statutes as they will do more harm than good in the long run.

  11. Thomas
    Thomas May 20, 2009 at 1:40 pm |

    I should add that I’m agreeing with what GallingGalla wrote. Law, whether civil or criminal, is not self-enforcing; just a set of tools, more suited to some tasks than others but ultimately effective only when employed by actual people. Criminal law is in the hands of police, prosecutors, judges and juries. Civil law is in the hands of judges and juries; but also regulators, plaintiffs’ lawyers, attorneys general, corporate counsel and private citizens. It is what we think it is, it is how we use it, it is what we accept; it does not exist outside of politics, but rather law itself is a political tool, just another piece of the larger cultural scrum.

  12. Thomas
    Thomas May 20, 2009 at 1:42 pm |

    Is that a new record for use of semicolons in a non-list?

  13. GallingGalla
    GallingGalla May 20, 2009 at 2:27 pm |

    shorter emma: ZOMG CIS PEOPLE WILL BE SO SO SO SO BUTTHURT BY PROTECTING TRANS PEOPLE!!!!111!!!zomg!!!totzcispanic!!!

    yeah, emma, let’s throw trans people under the bus so that some one-in-a-hundred-billion scenario you’ve cooked up in your head won’t happen. better to let thousands of trans people freeze in the dark that let one cis person feel a threat to their speshulness, right?

  14. Holly
    Holly May 20, 2009 at 2:53 pm |

    Emma: not sure where this law would either nullify Title VII (which also has been held to protect trans people) or the state SONDA, as Cara pointed out. There is some troubling haziness around the legal definition of “gender identity” and “gender expression,” but legal challenges to discrimination have been brought on behalf of (just for instance) women who don’t conform to society’s notions of feminine appearance, using the language of “gender expression.” Part of the reason the phrase “gender expression” is actually good is that it does not refer to any specific group of people and isn’t exclusive to trans people; nobody’s ever used it that way to my knowledge. It refers to everyone — anyone who is discriminated against due to how they are expressing their gender. Darlene Jespersen might have won her lawsuit against Harrah’s Casino on grounds of gender expression although the court found against her under Title VII, for instance. (She was a dealer fired for not wearing makeup and otherwise being feminine enough — it’s worth noting that other Title VII decisions have changed how it applies to gender stereotyping since, I believe.)

    Another way to put it: the words “gender expression,” particularly, have nothing to do with identity, as I understand it. Nobody identifies as “having a gender expression.” That term is an attempt to describe something that everyone does have: a set of decisions and qualities that, when interpreted in a social setting, constitute their position within the system of gender. (Which we may very well call out as an artificial and oppressive system, but it’s one that exists and is nigh impossible to simply escape from without being a hermit.) Those two words have been associated with trans people, since a lot of trans people are discriminated against for their gender expression (although many are not) — but many people who aren’t trans are ALSO discriminated against due to gender expression. So if we’re using the term correctly, it shouldn’t matter whether you identify closely with the term “gender expression” or not; it’s not a term of identity, it’s a descriptor of the way a social phenomenon works. You can propose calling it something else if you want and if you think it would be more accurate, but it’s not exactly something you can “opt out of,” unfortunately. (As much as I’d like to be able to opt out of gender in general.)

  15. Holly
    Holly May 20, 2009 at 3:19 pm |

    i guess my question is, how do we, as a society, express that committing a hate crime against a marginalized person is unacceptable? it’s not that i think the legislation is the only way, but that i just don’t know how else to express it.

    Well, one answer is to support hate crimes legislation that does not include sentence enhancements. I know that one of the main groups fighting for the federal ENDA and hate crimes laws to include trans people, NCTE, has been talking for a while about how they wanted versions that did not involve sentence enhancement, for the reasons we’ve been talking about. They actually had someone on a fellowship, if I’m remembering correctly, who did a lot of very eye-opening research about hate crime laws and their effectiveness (or lack thereof). However, I don’t know what ended up happening with federal hate crimes laws, because I don’t totally understand how they’re tied into sentence enhancement and whether that happens automatically for all “protected classes.” It’s kind of a tangle of laws. It’s possible to recognize a crime as being particularly bad without increasing prison sentences — which honestly, does very little to help anyone, may actually increase repeated crimes, doesn’t deter at all, etc. What NCTE was proposing, if I recall correctly, was some sort of package that provided funding for increased tracking, investigation, and follow-up on crimes classified as hate crimes — trying to bolster the responsibility of law enforcement for dealing with hate crimes, but not making the “hammer of the law” even bigger.

    if such legislation were (re)written so the sentencing enhancements would be applied only if a person with a privilege made a hate-based attack against a person without that privilege (e.g. a white person could get a sentence enhancement from attacking a poc, but not the other way around), do you think that would help? i could still see scenarios where law enforcement could worm their way past that one.

    I’m sure that would probably help people from being charged with “anti-heterosexual” hate crimes (yes, it happens every year, across the country) and keep hate crimes laws from being used so disproportionately against people of color, for instance. But given our society’s current understanding of privilege and prejudice and racism — I can’t possibly see a legislature being able to pass that. It would be like all the arguments about affirmative action, on steroids, to try and assert that hate crimes are prejudice + institutional & social power, and not just prejudice. In fact, I’m sure that the “equal” nature of hate crimes (which translates into racist enforcement in reality) is part of how most of these laws got passed in the first place. Some republicans probably voted for them, as well as moderate & conservative democrats. Also, what Cara said. This kind of law is kind of problematic to begin with, especially when it has to do with dishing out punitive measures unequally — which is what happens anyway, even when you try to make it “equal.”

    What I’m suggesting is that if, for example, discrimination against women is civilly actionable, it hands the people around the conference table whose heads are in the right place a weapon. They can say, “that sounds like you have a problem with her because she’s a woman, and you can’t do that, and you can’t even say that, because that will get us sued.”

    And of course this is really smart and really is a good thing for people to be able to say in a work environment where decisions (say, hiring decisions) are being made. It’s part of what I meant by, changing the ethical framework of what’s considered “right and wrong.” Unfortunately, I think what happens is that company cultures (ones that aren’t purely run by a silencing old-boy network) just become more tight-lipped. In other words, people will tell a privileged asshole shooting his mouth off that “uh hey… you can’t say that, we could get sued” but that just drives the same behaviors underground, between people who won’t “rat” or who can exercise power over each other, etc. It may be one of those things that can’t be solved purely through legal punishment; of course mechanisms evolve to protect companies and corporations from legal punishment!

  16. eastsidekate
    eastsidekate May 20, 2009 at 6:07 pm |

    What Thomas and Holly said….

    I can’t expand much upon what Holly said about sentence enhancements (although thank you for the link– I’m a New Yorker, and I hadn’t heard that there was a hate crimes element to GENDA). Sentence enhancements aside, hate crimes legislation has the potential to be useful when allows the federal government to investigate and prosecute crimes ignored (or committed) by local authorities. This still requires the existence of federal authorities that are actually willing to enforce the law, though.

    As for employment non-discrimination, I’ve been fired for a job because I was trans, and it was in a jurisdiction with trans-inclusive non-discrimination ordinance. I’ve also had some pretty iffy experiences on the job market. However, as Thomas suggests, it’s next to impossible to enforce non-discrimination ordinances, particularly given privileged classes’ willingness to not understand discrimination. All the trans folks I’ve talked to agreed with my assessment of my situation, but I don’t have the smoking gun that a cissexist legal system requires. I’m not aware of a single case where a trans person has successfully used trans-inclusive non-discrimination statutes to address employment discrimination (there’s a very spotty record with Title VII).

    Employment non-discrimination legislation is worth fighting for because it’s good for the law to be ethical. It’s good to see the government attempt to discourage discrimination. However, it’s nuts to think that GENDA will change much. Just as there are massive inequalities despite the existence of gender and race as protected classes, GENDA will not end discrimination against trans people. What we really need is a sea change in society. Maybe having the governments recognizing the unjust employment situation that trans people face will be a teeny-tiny step in this direction. While all the dudez in Albany are arguing about this, it’d be good to see folks do things that actually do have a difference in the lives of trans people (say, continuing to fight for access to health care, social services, housing, and an end to state-sponsored violence against us).

  17. Alex
    Alex July 7, 2009 at 4:49 pm |

    Please review NYS’s existing non discrimination legislation – in which individuals are afforded protection for the usual (religion, race, sex, etc. and even sexual orientation) but also for “Gender Expression.” That phrase was was originally put in to protect women against getting fired for wearing pants. Since that legislation was passed, it has been held by many courts in the state of NY to apply equally to transgendered people – that they may not be discriminated against for however they choose to present their gender.

    NYS and especially NYC have already recognized trans-discrimination. High courts have held repeatedly that we deserve respect and equal protection under the law (however much of a farce the reality of that phrase might be).

    I am a transsexual man (female to male) who is not in favour of this new law. Given that GENDA would not grant any additional protections to us, there is no point. Some say it would help in creating dialogue, or making a statement, by showing that the state feels a certain way — but the state has already shown that more times than I can count. Further, I feel that legislation for such a law would only serve to open a dialogue that would allow transphobes to say hurtful things in public settings and force people to listen to them.

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