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LOU CHIBBARO JR
Friday, July 25, 2008
Two agencies charged with enforcing the city’s anti-discrimination laws issued a proposed rule change earlier this month that would exempt the Department of Corrections from complying with the D.C. Human Rights Act as it applies to transgender prisoners.
In a July 11 notice of proposed rulemaking, the D.C. Office of Human Rights and the city’s Commission on Human Rights called, among other things, for waiving a requirement that city government agencies “classify, house or provide access to gender-specific facilities to transgender individuals according to their gender identity or expression if the transgender individual is incarcerated, institutionalized or otherwise within the District’s custody.”
Department of Corrections officials have said the rule change was needed to address “safety and security” issues that have surfaced in the D.C.
jail in connection with transgender inmates.
But the proposed change drew strong opposition from gay and transgender activists, who describe the proposal as a scheme to weaken the Human Rights Act through regulatory channels less than three years after D.C. City Council voted unanimously to strengthen the act’s non-discrimination protections for transgender persons.
“We have thus far seen no justification for these proposed changes, much less a compelling one,” said Barrett Brick, president of the Gay & Lesbian Activists Alliance (GLAA), in a statement submitted to the Office of Human Rights.
In an e-mail alert to its members and supporters, GLAA said it was joining a campaign led by the D.C. Trans Coalition to persuade city officials to drop the proposal.
Among the groups joining the D.C. Trans Coalition in opposing the proposed changes are Transgender Health Empowerment, Helping Individual Prostitutes Survive (HIPS), D.C. Prisoners’ Project, National Center for Transgender Equality, National Gay & Lesbian Task Force, Parents, Families and Friends of Lesbians & Gays (PFLAG) and Human Rights Campaign.
“The entire GLBT community is coming together to oppose this,” said D.C. Trans Coalition member Jeri Hughes, who pointed to city prison system policies that treat transgender women as men.
Hughes said the existing policies, among other things, force trans women to strip in the presence of male prisoners and assigns them to isolation cells to ensure their safety rather than provide alternate sleeping facilities.
“This would give them a free pass to discriminate,” she said of the Department of Corrections.
D.C. Council member Carol Schwartz (R-At-Large), who chairs the Council committee that oversees the Human Rights Office and Commission, also spoke out against the proposed rule changes.
In a July 23 letter to Mayor Adrian Fenty, Schwartz called the proposal an attempt to “circumvent” provisions in the Human Rights Act that protect transgender citizens from discrimination.
“Regulations are supposed to mirror the law, not change the intent of the law,” she said. “This change would, in effect, turn the intent of the law upside-down.”
Under city rulemaking procedures, all interested persons can submit comments on proposed rules within 30 days from the time the proposed rules are published in the D.C. Register. In the case of the proposed transgender rules, the 30-day comment period ends on Aug. 10. (All comments must be sent to Alexis Taylor, General Counsel, Office of Human Rights, 441 4th St., N.W., Suite 570 North, Washington, D.C. 20001.)
City agencies are required to take public comments into consideration in preparing a final version of proposed rule changes, with the mayor and city attorney general often making the final decision on how a rule should be worded. It could not be determined by press time whether the Commission on Human Rights, a body independent of the mayor, would make the final decision on whether the proposed rules should be accepted or rejected at the conclusion of the public comment period.
The Office of Human Rights and the Commission on Human Rights issued the existing city rules covering transgender persons in 2006, about one year after Council passed the Human Rights Clarification Amendment Act of 2005. The 2005 legislation added the term “gender identity and expression” to all of the Human Rights Act’s non-discrimination provisions. The term is widely used in non-discrimination legislation across the country to cover transgender persons.
Considered one of the nation’s strongest local anti-discrimination laws, the D.C. Human Rights Act — enacted in 1977 — bans discrimination in employment, housing, public acidulations and other areas based on, among other categories, race, religion, ethnicity, gender, sexual orientation and, as of 2005, gender identity and expression.
The addition of transgender protections in 2005 drew widespread support and passed Council unanimously. Gay D.C. Council member Jim Graham (D-Ward 1) introduced the legislation.
Gay and transgender activists this week said they were surprised and disappointed that the Human Rights Office and Commission on Human Rights apparently heeded requests by the Department of Correction to propose rolling back non-discrimination protections for transgender prisoners.
Among the Commission’s members are Christopher Dyer, director of the Mayor’s Office of Lesbian, Gay, Bisexual & Transgender Affairs; and gay D.C. residents Michael Ward and Thomas Fulton.
Mario Acosta-Velez, president of the Gertrude Stein Democratic Club, the city’s largest gay political group, served as acting chair of the commission until his term expired in early July. Although Acosta-Velez no longer serves on the commission, he was a member at the time that Alexis Taylor, general counsel of the Office of Human Rights, introduced the proposed changes to the commission.
Acosta-Velez said he appointed a subcommittee of the commission to consider the proposed changes but chose not to become a member because his term on the commission was ending.
“This is not saying in any way that the commission is agreeing to these proposals or that it favors cutting back on the Human Rights Act,” Acosta-Velez said. “We decided to let them go through the process and to seek out comments from the public. It was our understanding that the proposals would come back to the commission for a vote, and that’s when the matter would be decided.”
Ward echoed that sentiment, saying he has concerns over parts of the proposed rule changes.
“We all expected there would be some controversy,” he said. “That’s part of the reason for putting them out there for public comment.”
Dyer declined comment. As a member of the mayor’s staff, Dyer is likely to face competing pressures on the proposed rules, with gay and trans activists urging him to vote against them and the mayor potentially asking him to support them.
Mayoral spokesperson Dena Iverson said Wednesday that the mayor would take into consideration all public comments on the proposal before making a decision.
“We look forward to hearing back from the community,” she said.
Ward said Taylor of the Office of Human Rights informed the commission that the proposed rules came from the Fenty Administration, with the request that the commission consider them and possibly fine-tune the proposed changes after they go through the public comment period.
Although the rules changes are being officially proposed by the Office of Human Rights and the Commission, local gay and trans activists believe the D.C. Office of the Attorney General likely played a key role in initiating the proposed changes. The Attorney General’s office is responsible for overseeing the process of promulgating rules and regulations to carry out D.C. laws.
The proposed rule changes come more than five years after transgender organizations began lodging complaints against the Department of Corrections for alleged discriminatory practices against trans inmates.
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