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Why the Transgendered Need Civil Rights Protections

On the Suicide of Mike Penner

by NORM KENT

The suicide this past weekend of Los Angeles Times sportswriter Mike Penner, who for the last few years wrote under the byline of Christine Daniels, leaves me today with a desire to rant and rave over an insane anomaly in American human rights protections.

Title VII of the Civil Rights Act of 1964 protects all individuals against employment discrimination on the basis of sex as well as age, race, color, national origin, and religion. Many states go further and offer protection against discrimination because of physical or emotional disabilities, marital status, and even pregnancy discrimination.

More and more communities we know have added sexual orientation to the fold, but it seems the new Scarlett letter tearing apart American communities is a debate over whether to protect “gender identity” under civil rights statutes.

Why would anyone fight this? Discrimination is morally wrong and ought to be demonstratively illegal in any form. The very purpose of passing laws against discrimination is to prevent wrongful acts which deny equal opportunities to individuals similarly situated. If we are all presumptively equal under the law, it is correspondingly presumptively illegal if we are treated differently for no rhyme or reason.

Last year, for example, in the city of Largo, a small West Coast community in Florida, its City Manager, Steve Stanton, announced he was going for a sex change operation.  The City Commission promptly held a standing room only meeting and fired him. Why? For 15 years, when he did his job as Steven he was fine. But when he chose to come into work as Susan his job was gone; her career in shambles.

What sense does this make? The role Mr. Stanton filled was managing numbers for a city budget. That task requires accounting skills, not a jockstrap or bra. His brain was not operated upon, but the community’s conscience was shocked, and it sent a ripple of disbelief through our national psyche.  

Last month, President Obama selected Jenny Durkan, a Lesbian, to be the U.S. Attorney for Seattle, Washington. She was appointed because of the talents she brought to the table as a prosecutor, not her skill set in bed with her partner. What business is it of ours whether the City Manager of Largo performs the duties of the job as Steven or Susan as long as the tasks are filled with impeccable integrity?

If you were a sports fan in Los Angeles, you would have known Mike Penner as a first-rate journalist who had covered a variety of assignments including the Olympics, the Angels, tennis, and the sports media. But he made stunning news in 2007 when he announced he was a transsexual and would be writing his new columns under the name of Christine Daniels. And this affects us how?

If  it is wrong to discriminate against an individual, that discrimination is inappropriate whether the person you are interacting with is male or female, straight or gay, black or white. Or Transsexual, metrosexual, bisexual,  homosexual, or asexual. As long as they are not telling you to drop your pants, get over it.

Even the gay and lesbian community has moved too slowly in accepting the rights of transgendered persons. Within the gay rights movement, there was for too long silent resistance that we were pushing the envelope too far. Timid activists suggested we were ‘rocking the boat.’ Hell, why not? It needed new pilots.

Thus, as activists so too did we ultimately push the envelope on gay marriage, domestic partnerships, civil unions, equal rights in employment, and spousal benefits. If you are an activist anywhere, you have to learn to push the envelope somewhere. If you do not, someone will lick the seal and glue you in it. A civil right, like a sealed envelope, sometimes only comes about when you rip and tear that envelope. And it is not always a pretty and smooth cut.

Ultimately, then, transgender protections should not even be seen as a gay rights issue. We are simply supporting fundamental human rights protections. And while it is encouraging that such ordinances are being adopted in various communities, from Salt Lake City to Kalamazoo, we should no more have votes on inalienable human rights than we should have had majority opinions to determine whether southern states in the 1960’s should have had separate water fountains which read ‘Whites Only.’ It was simply a wrong which Time and decades needed to right. So too is it with those transsexuals who must endure wrongful ostracism today.

Legislators, not voters, need to codify equal rights protections, and they do not need popular approval to do so. What is popular is not always right, and what is right is not always popular. The same way a legislator would vote to strike down a law stating only Caucasians can sit on the front of a bus so too must they strike down a policy that allows a government agency to fire an employee because they do not approve of a transsexual. That person’s status is beyond the scope of their approval.  

I do not know what killed Mike Penner this past weekend. If we learn it was a tortured conscience because of confusion over his identity, then our society lost a life uselessly. I do know when he ‘came out’ three years ago, as a married man with a wife and child, he called writing the story about his sexuality the “most frightening of all the towering mountains of fear” he ever had to conquer. He wrote: “I am a transsexual sportswriter…and it has taken more than 40 years, a million tears and hundreds of hours of soul-wrenching therapy for me to work up the courage to type those words."

If we can begin normalizing our laws today so as to promote social acceptance tomorrow, we can make a difference for those so impacted. We may even be saving a life.

NORM KENT is a Fort Lauderdale based criminal defense lawyer who is a member of the board of directors of NORML. He publishes the www.browardlawblog.com and can be reached at norm@normkent.com