I’ve been the victim of sexual harassment.
Near the end of my 20-year, U.S. Navy career, a subordinate of mine decided I was gay and didn’t want me in his Navy – he talked to my last four division officers trying to get an investigation into my alleged homosexuality started on me.
My subordinate finally found a sympathetic ear in a new Executive Officer (XO). I got called in front of the XO twice. I’d stayed within the Don’t Ask, Don’t Tell (DADT) rules, but he asked me if I were gay anyway.
I wrote up my subordinate and my XO for male-on-male sexual harassment — they violated the DADT rules in a way that met the Navy’s three criteria for sexual harassment:
1. The attention was unwelcome.
2. The harassment was sexual in nature.
3. The harassment involved the workplace.
Unfortunately for my harassers, for seven years of my military career I’d been a Naval Equal Opportunity and Sexual Harassment instructor. Both of my harassers were found at the end of investigation to have committed male-on-male sexual harassment. The Navy didn’t take male-on-male sexual harassment seriously, so my subordinate’s punishment was a verbal reprimand, and my XO got a “fiche 5” service record entry.
Why mention my story of harassment here? Matt Barber of the Concerned Women For America’s Culture And Family Institute recently announced what he believes a sexually harassing, hostile work environment is created when a transwoman uses a female designated bathroom.
This is from the Concerned Women For America’s article entitled ENDA Would Dismantle First Amendment Liberties:
Matt Barber, Policy Director for Cultural Issues with Concerned Women for America (CWA), warned, “This [Employment Non-Discrimination Act of 2007 (ENDA)] bill would force Christian, Jewish or Muslim business owners to hire people who openly choose to engage in homosexual or cross-dressing behaviors despite a sincerely held religious belief that those behaviors are dangerous, sinful and not in keeping with basic morality. ENDA would essentially force employers to check their First Amendment protected rights to freedom of religion, speech and association at the workplace door. It’s absurd! For instance, female employees would have to endure both systematic sexual harassment and a hostile work environment by being forced to share bathroom facilities with male employees who get their jollies from wearing a dress, high heels and lipstick. [emphasis added]
“Over the years, the homosexual lobby has done a masterful job of co-opting the language of the genuine civil rights movement in their push for special rights. This bill represents the goose that laid the golden egg for homosexual activist attorneys,” concluded Barber.
Knowing what I know about sexual harassment, this is a twisting of “hostile work environment.” When Matt Barber mentions sexual harassment and hostile work environments, it’s pretty clear he knows just enough about the subjects to get the application wrong, and his sarcastic, demeaning choice of words suggest he doesn’t really care.
Dr. Jillian T. Weiss is an expert consultant on transgender workplace diversity issues. In her blog, she writes about the more intrusive situation of transwomen and transmen in the shower / locker rooms:
As I read it, it exempts shower rooms and dressing rooms without private areas, such as stalls with curtains or doors. In such situations, employers are not subject to liability under ENDA if a transgender employee is excluded therefrom. (The language specifically refers to “this Act,” so there might be potential sources of liability in state law.)
I think most employers with shower or dressing facilities will not fall within this safe harbor because it is common practice today for most shower and dressing rooms to have some stalls for private use, with doors or curtains. If there are such private areas, and being seen fully unclothed is “avoidable,” ENDA would apply to prohibit discrimination based on gender identity. Two caveats, however: 1) there is no indication of who would or could be required to use such private areas, and 2) two state courts have ruled that the cultural preference for single-sex facilities trumps statutory language prohibiting gender identity discrimination. I’ve previously discussed point two about bathrooms and lockers rooms in detail here. For more discussion of these issues generally, click on the label “Bathrooms. . .”
In other words, if the genitalia can be kept out of sight of others, then it appears ENDA has made provisions for transpeople using the shower and locker rooms that fit their gender identity.
Right after Matt Barber’s statement in the previously mentioned CWA article is a quote from Shari Rendall, CWA’s Director of Legislation and Public Policy. She said of ENDA:
“This bill would unfairly extend special privileges based upon an individual’s changeable sexual behavior, rather than focusing on immutable, non-behavior characteristics such as skin color or gender. Its passage would both overtly discriminate against and muzzle people of faith. Former Secretary of State Collin Powell put it well when he said, ‘Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.’”
I like Colin Powel. However, that doesn’t make him an expert on civil rights issues.
So to put Colin Powell’s quote in perspective, I’ll quote two leaders from the black civil rights movement: Martin Luther King Jr. and Bayard Rustin:
The good neighbor looks beyond the external accidents and discerns those inner qualities that make all men human and, therefore, brothers.
— Martin Luther King Jr.
Gay people must continue this [civil rights] protest. This will not be easy, in part because homosexuality remains an identity that is subject to a “we / they” distinction. People who would not say, “I am like this, but black people are like that,” or “we are like this, but women are like that,” or “we are like this, but Jews are like that,” find it extremely simple to say, “homosexuals are like that, but we are like this.” That’s what makes our struggle the central struggle of our time, the central struggle for democracy and the central struggle for human rights. If gay people do not understand that, they do not understand the opportunity before them, nor do they understand the terrifying burdens they carry on their shoulders.
— Bayard Rustin; From Montgomery To Stonewall (1986)