The abuse of civil rights laws needs to stop

Many states and cities in the U.S. have added “gender identity” to their civil rights laws, echoing similar laws in other countries. Already we have several examples of how these laws are being interpreted and applied in a way that harms women and girls, chills feminist political speech, and enables gender identity activists to bully women. The latest example arose when lesbian feminist activist Julia Beck sought redress from the Maryland Commission on Civil Rights after staff at Baltimore’s Ottobar ejected her and told her to take her “lesbian politics” elsewhere. This is a grave warning of how women will be treated under laws like the proposed “Equality Act” and the proposed “Fairness for All Act,” both of which would allow people to file discrimination claims based on “gender identity” under U.S. federal civil rights law.

The current landscape  

According to HRC’s 2018 State Equality Index, 21 states include “gender identity” in their anti-discrimination policies for employment and housing, 20 states do so for public accommodations, 34 states do so for college and university admissions policies, and 28 states have “gender identity” in their non-discrimination policies for State employees. According to another HRC report from 2019, 408 cities also include “gender identity” in their local anti-discrimination policies.

Whose interests are served by “gender identity” laws, and are they necessary to protect the interests of women, in particular lesbians and bisexual women? WoLF supports legal remedies to protect people from discrimination on the basis of sex, which also extends to discrimination on the basis of sex stereotypes, as the Supreme Court recognized in its 1989 Price Waterhouse ruling. We argue that this principle extends naturally to discrimination based on same-sex attraction as well, as we stated in our amicus brief in the Harris Funeral Homes case:

Importantly, re-affirming the prohibition on sex-stereotyping would also protect gay employees against workplace discrimination because heterosexuality functions as a sex-stereotype, in the sense that society tends to presume that people are heterosexual. Taking an action against a homosexual employee because of that person’s sexuality would, therefore, constitute unlawful sex-stereotype sex discrimination.

WoLF further argued in Harris that these existing legal remedies already cover most legitimate claims of discrimination that a person who self-identifies as “transgender” might make, insofar as that discrimination is based on sex-stereotyping—for example, firing a man or terminating his rental agreement just because he wears dresses, grows his hair long, and uses a female-typical name. Under many circumstances a person’s outward presentation and even their claim to possess a subjective “gender identity” has no bearing on their ability to meet their employment obligations, comply with a rental agreement, responsibly use bank credit, or serve on a jury. But discrimination based on sex-stereotypes has already been prohibited for over 3 decades under the Price Waterhouse case.

So what do gender identity laws add to the civil rights toolbox? A hammer, which can be wielded by men to violate women’s spaces and silence women’s speech. This is because gender identity activists aren’t merely asking for the liberty to lead their lives free of violence or undue discrimination. If that were all they sought, virtually no one would object. Rather, they seek validation of their belief that “gender identity” overwrites sex and men can self-identify as women or women as men.    

While some of these examples are still actively in dispute, meaning we haven’t seen the final word, we can clearly see an anti-woman pattern in the way gender identity activists are pushing the law:

— A man named Aimee Stephens and the ACLU are arguing before the Supreme Court that “on the basis of sex” means on the basis of “gender identity,” and therefore the employment protections in Title VII of the Civil Rights Act require that Stephens’ employer apply its female-specific dress code to him, allow him to use the women’s restroom, and call him a woman.  

— Charlotte Clymer, a man who pushes “gender identity” policies as a staffer at HRC, successfully used the District of Columbia’s civil rights law to get workers fired from a restaurant called Cuba Libre after they tried to prevent him from using the communal women’s restrooms. The restaurant was also fined heavily, and has to let local gender identity activists “retrain” the restaurant’s other workers.

— In the UK, a man named Stephanie Hayden has used various anti-harassment and anti-discrimination laws to file vexatious lawsuits against people who don’t believe men can be women.  

— In Canada, a man who calls himself Jessica Yaniv has used the civil rights process to harass home businesses owned by women of color who refused to wax his penis and testicles, and is now targeting gynecologists who won’t pretend his penis has a cervix.  

These examples bode very poorly for how women will continue to fare under “gender identity” laws across the globe.

The great Patriarchal Reversal: Julia Beck’s complaint of discrimination

This brings us to the civil rights complaint Julia Beck filed against Ottobar in Baltimore. She filed the complaint with the Maryland Commission on Civil Rights (MCCR) after staff there ejected Julia and her partner, comparing Julia to David Duke and telling her to take her “lesbian politics” elsewhere. Julia explained to the MCCR that she thinks the “lesbian politics” comment refers to her public statements saying that lesbians are attracted only to females, regardless of an individual’s self-declared “gender identity”— indicating that the Ottobar ejected Julia on the basis of her sexual orientation itself. The MCCR recently issued “Written Findings” that raise serious concerns for feminist activists.

The Ottobar owner and staff simply denied ever having made the David Duke and “lesbian politics” comments, and argued that they welcome lesbian patrons into their “safe space.” They argued further that they only ejected Julia because they disagree with her politics not her sexual orientation. That is a legal issue, and since Maryland’s civil rights law does not protect political beliefs, the MCCR dismissed Julia’s complaint.  

It could have stopped there, but instead the MCCR went the extra mile to display blatant hostility toward Julia. First, they interviewed the Ottobar owner and two staff members in person – after they failed to show up at the official fact-finding conference – but made no attempt to contact Julia’s partner, who could offer first-hand corroborating evidence of the staff members’ remarks.

Worse, MCCR made an official finding that the bar’s action was justified by claims that Julia’s mere presence made other customers “feel unsafe.” While one of the bar staff claimed that “many” patrons were frightened Julia might commit a “hate crime,” including “transgender women [i.e. men], sis men [sic], sis women [sic], homosexuals, and heterosexuals,” there is no corroboration for this claim from even one of these supposedly terrified customers. And MCCR neither sought nor found any evidence that Julia has ever threatened or called for violence against any person or group. Instead, they cited Julia’s invited testimony to the U.S. Congress where she objected to proposed laws that would place women and girls at greater risk of male violence by opening women’s shelters and prisons to any man who self-identifies as a woman.

There is no evidence whatsoever that Julia has ever threatened anyone, or actually made any person feel unsafe.

Even more preposterous, the MCCR took an online interview that Julia had given to Feminist Current, cherry-picked a few phrases and used them out of context to claim that Julia wants to “form ‘girl gangs’ to oppose transgender women.” Here is are those comments in context:

MM: What advice do you give to women who are angry about how trans activism is impacting women, and lesbians in particular? What can/should they do to take action?

JB: Go off-line and get local. Meet other women and raise energy together. Make zines, paint walls, and break bread. Perform cervical exams and practice martial arts. Feminist activism outside patriarchal systems of “law” and “justice” is just as important, albeit slightly more rejuvenating, as is working within them. So form a girl gang, and whatever it is that y’all do, go do it!  

As Julia noted in her recently-filed Request for Reconsideration of the MCCR’s findings, the “MCCR took [Julia’s] description of common strategies for feminist community-building and political activism, and egregiously mischaracterized it as evidence that [her] presence posed a threat to Respondent’s patrons.” MCCR’s written findings “inappropriately paint basic political disagreement and speech as creating a risk of physical violence and compromising safety. The Findings deliberately misconstrue a lesbian woman’s rational fact-based concern about male violence as posing a threat of violence against males. MCCR thus demonstrated extraordinary bias against [Julia] on the basis of her lesbian feminist political organizing.”

The effects of this bias are insidious, as the request further explains: by “falsely asserting that [Julia’s] mere presence in a business establishment could incite violence without any supporting evidence, MCCR’s Written Findings expose [Julia] to further discriminatory acts by Ottobar and by other places providing public accommodation in Maryland.”

Using the civil rights process against Julia – and against all feminist political organizing, really – is a serious abuse of official power. Instead of protecting her, or even just taking a neutral position based on the law, the MCCR has given Maryland business establishments license to discriminate against lesbian feminists, unless they welcome men who call themselves “trans dykes” into their dating pool.

We worry for Julia’s safety, and that of other lesbians and feminists in Maryland. Even if the MCCR retains the same legal conclusion (that Ottobar’s discrimination against Julia is not prohibited because it was based on politics and not same-sex attraction), we hope they will do the right thing and retract their egregiously biased and prejudicial written findings.

We invite you to send a brief email to the MCCR at [email protected], explaining why its biased findings about feminist politics expose women and especially lesbians to discrimination and harassment.