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Community College District Won’t Discriminate – Except in the Bathroom

June 18, 2010 By: jaysays Category: Discrimination, Featured

Bathroom discrimination - a okay!The San Antonio LGBT Community has been petitioning the Alamo Community College District, which oversees 5 community college campuses in the San Antonio area, to amend its existing policies to include sexual orientation and gender identity/expression.  The initiative has largely been led by the student organization, Gay and Lesbian Association of San Antonio College.  After two meetings and many conversations with the Board, the ACCD has agreed to vote on a policy which would include sexual orientation, but not gender identity/expression.

However, in what could be called an effort to be inclusive, the Chancellor for ACCD, Bruce H. Leslie, issued a “Chancellor’s Clarification” citing the existing policies against discrimination based upon gender to be inclusive of “gender identity.”  In the clarification, the Chancellor writes:

The Alamo Colleges values and affirms the diversity of its students and employees. The Alamo Colleges also supports inclusiveness that recognizes, values, and reflects the diversity of our community. This inclusiveness extends to transgendered individuals.

Sounds pretty good, right? But the Chancellor didn’t stop there.  While in one breath he declares discrimination against transgender individuals to be a violation of policy, in the next he condones discrimination:

…nothing in this clarification or the policies or procedures shall be construed to establish discrimination or harassment based on gender identity due to the denial of access to shared facilities in which being seen unclothed (even partially, such as in restrooms) is unavoidable.

Thus, denial of the use of a public restroom to transgender persons will not be construed as discrimination under the policy.  I believe the popular term for this is, “FAIL!”

In a meeting with the San Antonio Gender Association last night, representatives of the LGBT community discussed an approach to deal with this harmful “Clarification” and the pending vote on inclusion of sexual orientation in the non-discrimination policy.  I sat in on the meeting and have never been so proud of our community.  LGB person after LGB person agreed that we will not leave the “T” behind.

On Tuesday, June 22, we will again appear before the board and ask the board to postpone decision on these policies for a period of 90 days for the purpose of: (1) additional education; (2) allow reconsideration for inclusion of both sexual orientation AND gender identity/expression in the policy; and (3) a retraction of the Chancellor’s Clarification.

This decision is not without critics.  Some LGB people feel that moving forward with the exclusionary policy would best serve the community and we can fight for transgender inclusion at a later date. But they forget our history.

Some readers may note the similarity between this current issue and the ENDA episode where HRC staffers drafted a version of ENDA which was not “gender identity” inclusive.  Although it was clear that the purpose was to ensure that protections for sexual orientation would make it through the House and Senate, the authors of the proposal defended their position claiming that Title VII of the Civil Rights Act of 1964 provided protection for “gender identity” under the heading “gender.”  However, it’s widely accepted that the real reason was that we could not get an inclusive ENDA passed (at that time) without throwing the “T” under the bus.

While Title VII should provide discrimination protection based upon gender identity/expression, that position is, at best, only partially correct.  The Supreme Court decision in Ulane (1982) clearly excluded transgender people from the definition of “gender” as it applied to Title VII.  Although a subsequent decision by the Supreme Court in 1989 (Price Waterhouse v. Hopkins) seemed to redefine “gender” in Title VII to include gender expression (or more specifically, discrimination based upon gender stereotypes), lower court’s continue to cite the Ulane decision as precedent (even as recently as this year!).  The rare exception seems to be within the 9th Circuit, which has cited the Price Waterhouse decision to be inclusive of gender identity/expression in some instances.

The ramifications of the former exclusive ENDA proposal were far reaching, rattled our community to its core and underscored our own prejudices, fears, intolerance and selfishness.  We must learn from our history and our present and unite in order to establish full equality for all of our brothers and sisters.