The State Of The Ordinance


“With liberty and justice for all,” the people said, with their hands upon their hearts.  They shuffled as they took their seats or remained standing in the crowded council chambers at city hall in Helena.  I wondered how many in attendance actually believed in those concepts they had just pledged their allegiance to.  Many seemed to believe that liberty and justice should be applied only to those they alone deemed worthy.

Rosa Parks' mugshot

Rosa Parks’ mugshot (Photo credit: rbanks)

The opponents had arrived early and assured that their ranks would take all the seats, leaving standing room only for the gays and lesbians, the Bi-s and transgender, and all their allies (friends, family and supporters).  Though seemingly greater in number they were mostly relegated to the hallway outside the chambers, or an overflow room set up for viewing the proceedings on a large screen.  It was filled to overflowing as well.

I had arrived early enough to take one of the last places for standing inside the chambers – in the aisle next to the last row of high-backed seats.  I thought of the pews in the Catholic church of my youth as I stood firmly, almost defiantly, and prayed for grace and tolerance.  Though transgender, I remain just old fashioned enough to have wondered if any of the good seated gentlemen would offer me their seat.  None did.

At that very moment I wondered if I had not begun to understand just a glimpse of what Rosa Parks felt as she resolved to take her seat at the front of the bus.  While the opponents wore stickers which implied that LGBT rights are “special rights,” they graphically displayed exactly why they are necessary.  The inequality of the seating arrangement was readily apparent and not lost on many of those standing outside, craning their necks to hear and see the proceedings inside.  Were they not marginalized by the very people who proclaim it is not so?

As the council progressed through its agenda the tension mounted to a palpable level no matter which side of the LGBT rights issue you stood on.  It could be felt collectively.  The mayor came to the matter he correctly surmised we had all come to hear.  The council made and discussed amendments to the pending LGBT anti-discrimination ordinance that proposed to protect LGBT people from discrimination in housing, employment and public accommodation.

The first was the “locker room” amendment proposed with ambivalence and stated with reluctance by one commissioner due to an email he received about a pre-op transwoman in Evergreen, CO who had apparently, yet inadvertently, dropped the towel which covered her genital area while in the sauna, offending another woman.  The amendment would not extend protections to such transwomen in bathrooms, locker rooms or public facilities in which people customarily are nude.

The second amendment was of greater consequence, though not immediately apparent.  It provided that persons who felt they were discriminated against due to their LGBT status would have to first file their claim with the state Human Rights Bureau, and could only file with the city if the state rejected their claim.

Both amendments were adopted, and now came the time for public comment.  As a proponent, I got to speak first.  Here is some of what I said:

I am a civil rights attorney here in Helena.  I am also Transgender, as many of you know. I am anatomically consistent with my appearance in all respects for whatever that is worth to others – I know and am very grateful for what it is worth to me.

I support the ordinance without the “swimming pool”amendment because I have experienced discrimination here in Helena on more than one occasion, although never in the locker room, or bathroom, or anywhere else of that nature – even during the year prior to surgery when I presented full time as a woman, though anatomically still male.

The irony of the position that I find myself in is not lost on me.  Other than undergoing a procedure to correct something that was wrong my entire life,- a procedure that some think is a bit radical, I am a pretty conservative woman – in presentation, dress, style and activities.  I go to church, work here in Helena, shop here, and pay taxes.  I do not drink, smoke or gamble and don’t go with the boys who do.  In fact, I don’t go with boys, but that is another matter.

I am also rather modest & find it difficult in public to talk about, of all places, the bath room, and I wonder what kind of mind conceives of the threat a person such as myself presents in the rest room.  What kind of mind conceives of prurient activities in bath room stalls?  The thought repulses me.  Nonetheless, I can assure you that I (and others I know in this area) have only one interest in the rest room or locker room – relieving myself or changing my clothes

Now I wonder if there is anyone in this room whom I offended when I went to the woman’s rest room or locker room.  No one has ever said a single word about it, nor even cast a cross glance at me.  In fact, in the beginning, I was more afraid of everyone else than they could ever be of me.  For a trans person, the greatest single fear we live with our entire life is being found out – getting “read” in trans parlance.  That fear is so strong, that some people kill themselves or hide in a self constructed box for decades because they are afraid that if people knew they were transsexuals they would be reviled, rejected, scorned and perhaps worse.  Trans people are assaulted every day, and in some cases murdered for trying to overcome their fears and be true to themselves.  That fear is based on actual events – it is real, it is rational and it is pervasive.

On the other hand, when was the last time you saw a man expose himself in a woman’s rest room?  When was the last time you saw an anatomically incorrect person in the locker room in all their glory?  I have not had that experience in the five+ years I have lived and worked in Helena.  I wonder if the sheriff and police chief could enlighten us with the number of calls they have fielded of this nature in the last ten years?

So, I ask you.  Is the fear of males in the woman’s locker room real?  Is it rational?  The reality is that trans people are so afraid of being read, that they are not “passing” in the gender of identity, that they would not dream of exposing themselves until they are anatomically consistent, and would sooner forfeit their life than take that chance.  There may be some men who would do that, but, I assure that their issues are not gender identification dysphoria and the laws are already in place to prosecute them.

I say it again – trans people have by far more to fear from society than any part of society has to fear from them.  It is a public safety issue – and it is the trans people would need protecting.People in Helena are already using the bathrooms and locker rooms where they feel safest and most comfortable.  If a transman or transwoman were to expose him or herself for some prurient interest, the circumstances are amenable to prosecution under the criminal code.  This ordinance does not change any criminal codes (like sexual assault or indecent exposure, i.e. exposure for sexual gratification).  If a crime were to take place, it should be investigated the same way that crimes are investigated currently, and similarly prosecuted.  We can work together as a community to prevent and address crimes, make our city safer, and more just.  We can do the education necessary to make sure that all members of our community feel safe and are able to fully participate. This ordinance is one step in making our community safer and stronger, and reflecting our values of liberty and justice for all.

St Helena Cathedral in Helena, Montana, USA; p...

St Helena Cathedral in Helena, Montana, USA; picture taken from Mount Helena. (Photo credit: Wikipedia)

I believe that still.  However, the amendments now threaten to swallow the rule and dissolve any gains we might have made in the effort to end discrimination.  The “locker room” question is a tough issue, and as a former elected official, I have great empathy for the council.  No one should be forced into a position not of their own choosing where they are threatened and afraid; and this cuts both ways.  Imagine the shock a genetic woman might feel as she turns a corner, naked, only to see a pre-op transwoman in all her beautiful glory.  On the other hand, imagine the ridicule and risk to safety for a naked transman in the woman’s locker room, or the risk to safety for the transwoman, both pre and post op in the men’s locker room.  Thus, we have a dilemma.

It seems to me that when faced with such a dilemma that compromise is the only solution.  The compromise I propose is that the “locker room” amendment should be revised to preclude only those with socially inconsistent genitalia from revealing as much, from exposing such inconsistent genitalia.  To be clear, a pre-op transwoman cold be excluded from the female locker room if she exposes her penis, and similarly a transman if he reveals the lack thereof in the male locker room.  I make this suggestion knowing that many trans people will feel deprived from full participation in activities like showering at the gym, or sitting naked in the sauna in their true gender.  While true, I cannot see that it can be helped.  It is a comprise after all, and like any settlement, no one is completely happy.

The second amendment, which I refer to as the HRB amendment, is in fact of greater consequence and should be stricken.  First, the HRB operates under the auspices of the Montana Human Rights Act and the Civil Rights Act.  The MHRA affords no LGBT protection and could not be relied upon in pursuing an HRB claim.  The Civil Rights Act provides only speculative relief for the LGBT folks, and a merely persuasive argument for trans folk in employment only in accord with Macy v. Holder, an administrative law opinion rendered by the EEOC which recognized, as a number of federal courts have, a “gender stereotyping” claim under Title VII of the act as a means of sex discrimination for trans people.  Moreover, if the HRB, the defacto discrimination expert accepts an LGBT claim under Title VII, than the city claim will not be necessary.  On the other hand, if the HRB rejects a claim it will not likely be possible because good lawyers would use it as evidence in a motion to dismiss the city claim.  When the HRB says that it could not find reasonable cause to believe that discrimination occurred, it is both compelling and persuasive.  I believe it would be dispositive in this circumstance, rendering the city ordinance a nullity.  Thus, this amendment must be defeated.

If Helena, as a community can iron out these difficulties and pass this ordinance than we will take one step closer to liberty and justice for all.  And I hope that we do because Everybody Matters.

4 comments on “The State Of The Ordinance

  1. sapphospeaks says:

    Thanks Bobbie, for sharing the experience and painting such a vivid picture with your words. I feel like I was there. I think what some people have a hard time understanding is that we don’t want special rights, but until we have equal rights, it is necessary for us to have special protections. I find your input very insightful because you come at it from so many different places. My partner and I met you at Montana Pride the year before last in a spirituality session. We are a long-distance couple (She lives there; I’m in Texas). Can’t wait to get a copy of your book. Thanks for all you do for the community.

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