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Transgender Bill May Be Close to Passing
Legislation to Protect Against Gender Identity Bias Drops Bathroom Stipulations

By Ann E. Marimow
Washington Post Staff Writer
Sunday, November 11, 2007

Montgomery County appears poised to join the ranks of 13 states and the District this week by passing broad protections for transgender individuals in housing and employment. But when the County Council takes up the issue for a vote Tuesday it will not include a controversial reference to their use of public restrooms, something opponents equated to indecent exposure.

Faced with a flood of e-mails, phone calls and radio advertisements, the bill's sponsor, council member Duchy Trachtenberg (D-At Large), said yesterday that she was pulling language referring to the restrooms and was confident that the measure had enough support to pass the nine-member council and win approval from County Executive Isiah Leggett (D).

"We're just being pragmatic here. The bill still does what it's supposed to do," Trachtenberg said, dismayed by what she called a "campaign of misinformation and hypothetical, hyperbolic rhetoric."

Trachtenberg, a past president of the Maryland National Organization for Women elected to the council last year, was inspired to seek protections for the transgender community in part by her chief of staff, Dana Beyer, a retired eye surgeon and transgender woman. Similar anti-discrimination legislation introduced in the Maryland General Assembly failed by one vote in a Senate committee this year, and proponents plan to try again in January.

As initially written, Trachtenberg's bill did not explicitly address the use of public restrooms or dressing rooms by the transgender community. The council's health committee members -- Trachtenberg, George L. Leventhal (D-At Large) and Roger Berliner (D-Potomac-Bethesda) -- amended the bill during a work session last month after considering several options to clarify who should have access to public facilities. They unanimously settled on a standard used in Boston's human rights law that allows access based on a person's gender identity "publicly and exclusively expressed or asserted."

That reference became a focal point for opponents, who said the bill was written so broadly as to expose young girls in locker rooms to naked male cross-dressers. The issues of privacy mobilized a network of parent activists who had battled the sex-education curriculum in Montgomery County schools.

Susan Jamison, a parent from Poolesville and member of the group Citizens for a Responsible Curriculum, organized a demonstration at the and passed out fliers to inform residents of what she said were the consequences of the bill. She was particularly concerned that her 10-year-old daughter would be forced to change in a locker room next to a transgender female.

"There will be no decency here," she said.

Leventhal's response to Jamison in an e-mail did little to assuage opponents. Leventhal said he could not "absolutely put to rest your concern that girls might find themselves in a locker room or dressing room in the presence of a person who expresses or asserts herself as a woman but who still has male genitals," he wrote, "but based on my own sense of the prevalence of that condition in the population, I think the likelihood of that occurring is remote."

Early last week, Trachtenberg risked losing support for the bill even from her original cosponsors, Valerie Ervin (D-Silver Spring) and Marc Elrich (D-At Large).

"The sponsor made it way more complicated and controversial than it needed to be," Ervin said. "I cosponsored a civil rights bill -- not this."

Trachtenberg said she was willing to refine, not remove the language. She attributed the opposition to a vocal minority of religious and conservative groups who were engaged in "fear mongering." By Friday, the three health committee members had agreed to recommend the measure to the full council Tuesday without defining access to public accommodations. As written, the bill leaves that question to be answered by the county's Office of Human Rights if there is an instance of alleged discrimination.

"By seeking to provide clarification, we created confusion and uncertainty," said Leventhal, chairman of the health committee. "People do not need to be told by the government where and how they may use the bathroom."

Ruth M. Jacobs, a Rockville physician who works with Citizens for a Responsible Curriculum, said the group would continue to oppose the bill because it protects what the American Psychiatric Association considers a mental illness. She would like to see exemptions for hiring by religious institutions, including religious schools.

"We really haven't had a discussion of the effect on schools" or hiring transgender teachers, she said. "Nobody has shown that it is safe for young children's gender identity for Mark to become Mary."

Jamison, a lawyer, said yesterday that by taking out the language, the council has made the legislation even more open to interpretation.

In his 31 years with the county's Office of Human Rights, Michael Dennis, the organization's compliance director, can recall only two or three cases in which residents complained of suffering discrimination because of their gender identity. But Dennis said adding gender identity as a protected class in the county's human rights statute would clear up any ambiguity.

Maryanne Arnow, a transgender woman from Germantown, said she has had trouble finding work in restaurants in the county since she began her transition four years ago and has mostly worked as a high-end personal chef and event planner. She said she hopes the county's legislation will make prospective employers think twice.

"There are many people who still have a lot of fear about dealing with this situation and limited understanding," she said. "One can only hope that, in the back of somebody's mind, they may consider being more careful and consider giving somebody a chance."

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