Of Public Accommodations for Transgenders

Texarkana Arkansas Anti-Discrimination Ordinance M130

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On January 19, 2016 the City Council of Texarkana, Arkansas passed what they called an Anti-Discrimination Ordinance commonly referred to as M130.

A committee was formed to call for and give the voters an opportunity to repeal the ordinance. In June 2016 the ordinance was repealed through a vote of the people by a resounding margin.

The minutes of the Texarkana Arkansas board meeting may be found here.

The ordinance text as submitted for board action may be found here.

In summary the ordinance claims to aim to forbid legitimate discrimination against transgenders. Such a goal is admirable. However, the problem is that the ordinance adds two classes to discrimination laws/policies/rules/regulations/ordinances: gender identity and sexual orientation. These terms are defined below in this document.

The problem is that whether gender identity and sexual orientation should be protected classes and to what extent they should be protected is a big question that needs to be discussed before they are added explicitly as protected classes. Although not a deciding factor, Arkansas State law does not have such protected classes and the Attorney General has filed a law suit against other cities that have passed similar ordinances. The Attorney General claims the cities do not have the authority to pass such ordinances.

There is a repeal vote scheduled for June 28, 2016. The repeal should be voted for and passed for the following major reasons:

1. The board passed this ordinance in one sitting.

2. The board did not but should have given the public sufficient notice the ordinance had been requested.

3. The board should have addressed the ordinance in three meetings instead of passing it in one. This would have given the public more time to educate itself and the board on the matter.

4. More importantly, the ordinance raises issue of moral decency, privacy, and safety of citizens to include use of bathrooms and similar facilities such as showers and locker rooms for both adults and children in a variety of environments to include school and businesses.
Supporters claim the ordinance is not about bathroom and similar facilities. However, one need only look at what is happening in other states as well as the directives issued by the Federal Government to see that the ordinance implicitly includes bathrooms and similar facilities.

5. Repealing the ordinance would give the board and public another opportunity to readdress the issue in a more thoughtful, considerate, and thorough manner if the decision is made to readdress the issue. This is especially true since the issue is a national issue currently been discussed with no consensus on the proper thing to do. Consensus may not ever exist. However, repealing the action will show the board that it needs to respect the citizens enough to give them a sufficient opportunity to weigh in on the matter before the board takes final action. Giving the citizens amble opportunity to weigh in on the matter may have and may still give the board information such that it would not have passed the ordinance or at least some members may have voted against the ordinance.

For more information on the ordinance and repeal action see  repeal130.com

Note: A committee was formed to call for and give the voters an opportunity to repeal the Texarkana Arkansas
ordinance. In June 2016 the ordinance was repealed through a vote of the people by a resounding margin.

Statement by the President on the International Day Against Homophobia and Transphobia

President Obama issued a press release supporting May 17, 2016 as the International Day Against Homophobia and Transphobia.
See whitehouse.gov.

Definitions.

The Federal Office of Personnel Management (OPM) website  Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employmentprovides a definition of sexual orientation as follows:

Sexual orientation means one’s emotional or physical attraction to the same and/or opposite sex.

The Federal Office of Personnel Management website  Gender Identity Guidanceprovides a definition of gender identity, transgender, and transition as follows:

Gender identity is the individual’s internal sense of being male or female. The way an individual expresses his or her gender identity is frequently called “gender expression,” and may or may not conform to social stereotypes associated with a particular gender.

Transgender: Transgender individuals are people with a gender identity that is different from the sex assigned to them at birth. Someone who was assigned the male sex at birth but who identifies as female is a transgender woman. Likewise, a person assigned the female sex at birth but who identifies as male is a transgender man. Some individuals who would fit this definition of transgender do not identify themselves as such, and identify simply as men and women, consistent with their gender identity. The guidance discussed in this memorandum applies whether or not a particular individual self-identifies as transgender.

Transition: Some individuals will find it necessary to transition from living and working as one gender to another. These individuals often seek some form of medical treatment such as counseling, hormone therapy, electrolysis, and reassignment surgery. These treatments may be deemed medically necessary for many individuals, based on determinations of their medical providers. Some individuals, however, will not pursue some (or any) forms of medical treatment because of their age, medical condition, lack of funds, or other personal circumstances, or because they may not feel the treatment is necessary for their well-being. Managers and supervisors should be aware that not all transgender individuals will follow the same pattern, but they all are entitled to the same consideration as they undertake the transition steps deemed appropriate for them, and should all be treated with dignity and respect.

The Human Rights Campaign, a major LBGT civil rights advocacy group, also provides definitions on its website.

Federal EEOC Coverage of Transgender Discrimination.

The following quotes are taken from the EEOC website at  Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, and Gender Identity regarding laws enforced by the EEOC. It essentially says that transgender protection is already provided under the category of protection based on sex. This includes federal, state, and local government employment as well as the private sector employment.

“The EEOC enforces the prohibitions against employment discrimination in Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, Sections 501 and 505 of the Rehabilitation Act of 1973, Titles I and V of the Americans with Disabilities Act of 1990 (ADA), Title II of the Genetic Information Non-discrimination Act (GINA), and the Civil Rights Act of 1991. These laws prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information, as well as reprisal for protected activity. The Commission’s interpretations of these statutes apply to its adjudication and enforcement in federal sector as well as private sector and state and local government employment.”

“The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964.
See  Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

The Commission has also held that discrimination against an individual because of that person’s sexual orientation is
discrimination because of sex and therefore prohibited under Title VII. See  David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 120133080 (July 15, 2015)”.

Comments on OPM and EEOC Definitions and Guidance

Note that regarding sexual orientation, a person can be attracted to both sexes, male and female. Such a person is sometimes called bisexual. So then it is reasonable to observe that a transgender can be bisexual. This observation is a significant consideration when devising policies concerning transgenders. Also, the definition of gender identity means the person may have an internal sense different from their biological sex.

The EEOC rules should provide sufficient protection and recourse for discriminatory actions regarding employment. However, it is not explicitly clear from the above that this coverage extends to customers, volunteers, and visitors.

Even given the EEOC provisions, local or other government entities may still believe it needs to establish policies/rules/regulations/ordinances to ensure coverage for all categories of persons.

The Federal Government and some others error by considering the subject “homosexual rights” as legitimate civil rights. They error in equating “homosexual rights” with women rights and African American rights. They error because homosexuality is a sin and is abnormal/unnatural (Rom 1:26-27). Indeed it is a sin beam in contrast to a
sin mote (Gen 19:5-7; 2 Peter 2:6; Jude 1:7; Matthew 7: 1-5). However being black is not a sin and being a woman is not a sin and both are a human normal/natural. African American rights and women rights are legitimate civil rights. However, the “homosexual civil rights” under consideration are illegitimate. Let me emphasize that being black is not a sin and being a woman is not a sin but being a homosexual is a sin (Matthew 5:27-28).

Federal, State, and Local Government Policy/Rules ConsiderationsThe above definitions regarding sexual orientation, gender identity and gender expression introduce spiritual/moral factors within the context of bathroom and similar facilities provisions. As a society we should discourage one from becoming a transgender since homosexuality is morally indecent and unnatural. However, the existence of transgenders require some regulations be established. However, the goal of the provisions considered herein is not to prevent a person from becoming transgender; that is for another forum. The goal of the provisions considered here is to maintain a proper and reasonable standard of moral decency, privacy, and safety within society.

General Provisions:

A. It shall be sufficient for a bidder and/or contractor to state that it will comply with national, state, city, and other local anti-discrimination laws consistent with its constitutional rights under the United States Constitution and the Constitution of the State of the particular State, e.g., Arkansas.

B. Before denying a bid from a potential contractor or terminating a contract based on discrimination claims it shall be the responsibility of the government to prove that a contractor has failed to meet the provisions of A above. That is the government shall bear the burden of proving non-compliance rather than the contractor bearing the burden of proving compliance. This does not mean the government cannot require contractor to submit answers to questions or other documentation if an legitimate claim is raised by an employee or client/customer, or subcontractor of the contractor or other eligible person.

Bathroom and Similar Facilities and Dress Provisions

For simplicity unless otherwise noted, hereafter the use of the word bathroom should be considered to also include similar facilities such as locker rooms, showers, changing areas, etc. Furthermore, single occupancy bathrooms with lock and key is not a problem. Hence, these provisions concerning bathroom usage only apply to multiple occupancy bathrooms.

The above definitions regarding sexual orientation, gender identity and gender expression introduce psychological, sociological, and emotional factors within the context of bathroom provisions.

But the fundamental purpose of a bathroom is to provide physical relief and physical privacy. Its principal purpose is not psychological, sociological, or emotional in nature although a violation of reasonable privacy can introduce psychological factors. Therefore, gender identity and gender expression shall have no standing in consideration for bathroom provisions. Moreover, the concept of sexual orientation within the context of bathroom provisions is functionally equivalent to gender identity. Therefore, sexual orientation shall also not have any standing in consideration of bathroom provisions.

Dress involves psychological, sociological, and emotional factors. But the fundamental purpose of dress is to distinguish male from female and to provide a measure of physical privacy and physical protection from the environment. So then the sex of the person is reasonably an overriding factor in determining allowable dress.

Transgenders are an abnormality. Yet, like anyone out of the norm the basic necessities of life must be accommodated. Certainly relieving oneself is a basic life necessity.

Any established provisions should provide proper and reasonable moral decency, privacy, safety, and psychological, and similar measures for all parties. Certainly common decency permits males to go into female bathrooms and vice versa under emergency conditions. But surely special care is taken to ensure no member of the opposite sex is present; one would even make sure the door is locked and/or ask someone else if possible to guard the door to warn a member of the opposite sex about what sex is presently in the bathroom. Common courtesy prevents a man from going into a female bathroom and vice versa under ordinary circumstances.

Indeed, the one true God is wise when he forbids men from dressing like women and women from dressing like men to the point of appearing what they are not (Deuteronomy 22:5). Furthermore, the one true God is right when he says a little leaven leavens the whole lump (Gal 5:9); that is to say, its corrupting influence eventually leads to total perversion if it is not corrected. Possibility of inappropriate behavior in the bathroom is a consideration; but common decency and privacy is at the heart of the matter. The fact that we are debating this at the highest levels of spiritual and legal authorities shows how depraved our society is becoming regarding even the simplest of human matters.

In speaking on the Charolotte NC ordinance, “City Attorney Bob Hagemann has said the state’s indecent exposure laws remain in effect, and would prevent a transgender woman who still has male genitalia from showering with women or undressing in front of them. That person would need to use some sort of private changing area and showering area.” This may be found at
Charlotte Observer On HB2, attention shifts from bathrooms to showers…

Therefore the following rules should be adhered to by government and non-government entities:

(1) Persons should use the bathroom and similar facilities corresponding to the sex they were assigned at birth consistent with
the visible sexual organ (i.e., male where the sexual organ is a penis and female otherwise) present at birth.

(2) In the case of open bay showers or changing areas, a male who has had his sexual organ (i.e., penis) removed
would need to shower at home or other private facility.

To change clothing he would need to change in a men bathroom stall where there is privacy.

(3) In the case of open bay showers or changing areas, a female who has had a male sexual organ/device like (i.e. penis like organ/device) attached would need to shower at home or other private location. To change clothing she would need to change in a female bathroom stall where there is privacy.

(4) The government should not mandate private facilities be made available by government entities or non-government entities.

*One should note that a female positioning herself as a male would pose no more danger in the female bathroom than a weightlifter female so this should not be a concern. likewise, a male positioning himself as a female would be in no more danger in a male bathroom than a small male.

Department of Education Guidelines

The Department of Education has resources concerning its guidelines on the transgender issue:

Resources for Transgender and Gender-Nonconforming Students.

Department of Labor Occupational Safety and Health Administration (OSHA) Guidelines

The Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) has published a press release concerning
1A Guide to Restroom Access for Transgender Workers. The guide is also available here in PDF. It says “Core principle: All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” It goes on to say “The core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.

The employee should determine the most appropriate and safest option for him- or herself.” The article provides recommendations for unisex restrooms, etc. One should note that these are people at OSHA guidelines. They may not have been validated in a court of law. In fact the news release says “The guide was developed at the request of the National Center for Transgender Equality, an OSHA Alliance partner that works collaboratively with the agency to develop products and materials to protect the safety and health of transgender workers.”

News Article on Transgender Bathroom Access

The following is a quote from a news article entitled Bathroom Access for Transgender People Debated Across South

“In everyday life, how do we determine whether someone we’re with is male or female? We look at them. We don’t inspect their genitalia,” said University of South Carolina law professor Gregory Adams. “Are we going to start looking at their birth certificate?”

To Mr. Adams I would say he is right that we generally look at a person to ascertain whether a person is male or female. As a male if I am looking for someone to date and I see someone who looks like a man especially if they dress like a man, I certainly would not consider that person for a date. Similarly, if I see someone going into a bathroom dressed like a woman and I thought it was a man’s bathroom, I would have to look on the door carefully to make sure which door I need to go into. Moreover, Mr. Adams, a man dressed as a woman is deceptive and vice versa; we as a society should not validate or support their deceptive practice.

Certainly common decency permits males to go into female bathrooms and vice versa under emergency conditions. But surely special care is taken to ensure no member of the opposite sex is present; one would even make sure the door is locked and/or ask
someone else if possible to guard the door to warn a member of the opposite sex about what sex is presently in the bathroom.
Common courtesy prevents a man from going into a female bathroom and vice versa under ordinary circumstances.

Indeed, the one true God is wise when he forbids men from dressing like women and women from dressing like men to the point of appearing what they are not (Deuteronomy 22:5). Furthermore, the one true God is right when he says a little leaven leavens the whole lump (Gal 5:9); that is to say, its corrupting influence eventually leads to total perversion if it is not corrected. Possibility of inappropriate behavior in the bathroom is a consideration; but common decency and privacy is at the heart of the matter. The fact that we are debating this at the highest levels of spiritual and legal authorities shows how depraved our society is becoming regarding even the simplest of human matters.

For an article on how one elementary school is handling the creation of gender-neutral bathrooms see For more information see  Gender Neutral Bathrooms.

For more information see  Same Sex Romantic Partnership,
 Religious Liberty and

the 2015  City of Fayetteville, Arkansas UNIFORM CIVIL RIGHTS PROTECTION Ordinance.

Bibliography

1DOL OSHA (June 1, 2015), Retrieved from https://www.osha.gov/newsrelease/trade-20150601.html

2 abcnews (April 14, 2016), http://abcnews.go.com/US/wireStory/south-carolina-senators-hold-hearing-transgender-bill-38355775

To God Be the Glory!



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