DART Struggles With Discrimination Policy, And Gay-Rights Advocates Aren’t Happy At All

The Dallas Voice has been all over Dallas Area Rapid Transit’s rewording of its discrimination policy, which has been altered, it appears, to exclude protection for gay and transgender employees. The Voice has honed in on one word inserted into the policy — “except.” As it reads now, per the latest proposal:

DART is committed to hiring, promoting and retaining the best qualified persons in all positions and, except to the extent permitted by federal and/or Texas law, DART will not discriminate on the basis of race, color, religion, national origin, sex, age, disability, genetic information, veteran status, sexual orientation, gender identity or any other characteristic protected by law.

Now the issue is attracting national attention: The Advocate is keeping an eye on DART’s board, which will vote on its discrimination policy next week. In the meantime, the meeting of a recent DART board meeting during which the policy was discussed provides an intriguing glimpse into what the board’s thinking as it rewrites the policy. As in:

Mr. Strauss asked for a definition of gender identity. Ms. Gamez reverted to slide 9 entitled ‘Common Understanding’ and attempted to amplify the description therein. She clarified that “gender expression” and “transgender” are other terms commonly associated with gender identity. Ms. Gamez annotated the nature and scope of gender identity, explaining that transgender individuals might be biologically female but feel (internally) that they are a male or might be biologically male but feel (internally) that they are female or a biological male or female might feel (internally) they are something other (than male or female) or something in between (male and female). Ms. Gamez explained that ‘gender identity’ is the common term from a policy position that is used to include protections for these types of individuals.

Since downloading the minutes will cause your computer to crash, I’ve excerpted the relevant info on the other side. Should serve as the basis for an award-winning one-act.

Mr. Strauss asked for a definition of gender identity. Ms. Gamez reverted to slide
9 entitled ‘Common Understanding’ and attempted to amplify the description
therein. She clarified that “gender expression” and “transgender” are other terms
commonly associated with gender identity. Ms. Gamez annotated the nature and
scope of gender identity, explaining that transgender individuals might be
biologically female but feel (internally) that they are a male or might be
biologically male but feel (internally) that they are female or a biological male or
female might feel (internally) they are something other (than male or female) or
something in between (male and female). Ms. Gamez explained that ‘gender
identity’ is the common term from a policy position that is used to include
protections for these types of individuals.

Mr. Strauss restated his unease; he asked if ‘gender identity’ was removed from
sexual orientation? Ms. Gamez recalibrated her approach, explaining that
transgender is someone who expresses or has experienced their gender outside the
bounds of traditional cultural views of male and/or female.

Based on Ms. Gamez’s explanations, Mr. Strauss stated it seemed reasonable
from his point of view that provisions protecting sexual orientation would also
apply to gender identity. Ms. Gamez responded by explaining sexual orientation
provisions protect heterosexuals, homosexuals, or bi-sexuals; gender identity, she
said, was separate from sexual orientation. Mr. Strauss asked if gender identity
encompassed less than sex change? Ms. Gamez answered that Mr. Strauss was
correct; the gender identity provision extends to individuals who wish to express
their non-traditional gender. A trans-gender person, she said, can live the lifestyle
of the recognized identity (male/female/something in between) or they can
transition via sex reassignment surgery in order to align with the recognized
identity.

Mr. Strauss sought clarification, saying DART’s current policy prohibits
discrimination based on sexual orientation but this amendment asked the agency
to establish protection over and beyond sexual orientation? Ms. Gamez replied
that Mr. Strauss was correct.

Mr. Chrisman referred to the ‘Common Understanding’ definition (refer to slide 9
of the same title on file with the Office of Board Support) and asked Mr. Hyattye
Simmons, General Counsel, whether the language on the slide was the formal
legal definition of “gender identity”? Mr. Simmons replied the definition on slide
9 was the industry standard of “gender identity”; he added that the courts had not
established a definition and neither was the term defined by statute.

Mr. Chrisman conveyed concern that incorporation of a non-legal, ambiguous
definition opened the agency up to possible litigation. Mr. Simmons responded
that the protections built into the proposed Policy change would provide adequate
protection from that eventuality.

Mr. Enoch stated he would not support the amendment because it was reactionary
and he was dead-set against even the suggestion that employment is associated
with any section, or sub-section, of society. He continued that the second reason
he would not support the amendment is that, from an employer’s point of view,
any lawsuit that pivots on a court deciding that a trans-gender individual has been
wronged based on a claim consisting of nothing more than “I feel deeply” (refer
to language used in slide 9 entitled ‘Common Understanding’) would produce
disastrous results for both parties.

Mr. Noah stated that he saw a need to address the gender identity problem but did
not agree with the way it had been handled to date. Mr. Noah spoke directly to
Mr. Simmons and said he thought it imperative that Mr. Simmons, in his capacity
as General Counsel, formally sign off on any statement contained in Policy to
assure the Board that the Policy would be defensible in a court of law. Mr. Noah
elaborated Mr. Simmons’ sign-off was absolutely necessary because, according to
Mr. Noah’s extensive professional legal experience, the ‘Common
Understanding’ (refer to slide 9 of the same title on file with the Office of Board
Support) would not “hold up in court”. He continued that he did not know
whether Mr. Simmons would be able to locate a solid legal definition of “gender
identity”, but the language used in ‘Common Understanding” was not going to
“cut it”.

Mr. Noah proceeded to commend Mr. Chrisman’s earlier assessment of the real
issue, to wit: is the agency setting itself up for future litigation by approving the
amendment? Mr. Noah said Mr. Chrisman’s question could not be answered until
Mr. Simmons related what questions would be asked of the employee or potential
employee relative to gender identity. He went on to reason that how the
employee, or the potential employee, responds to the question is largely
dependent on the question itself. Based on this logic, he asked Mr. Simmons to
state the question(s) he planned on asking if he were called upon to deal with a
gender identity situation.

Mr. Simmons attempted a reply and Mr. Noah objected, stating that he was not
interested in an impromptu summary or improvised interpretation. Mr. Noah
stated he expected Mr. Simmons to research and then formally sign-off on a clear
legal definition of ‘gender identity’ and also produce a description of the
question(s) that the employer will pose based on the definition. Mr. Noah said
these two articles were required in a such a form as to be acceptable to DART’s
legal counsel and, thereby, acceptable to the Board.

Mr. Simmons attempted to respond and Mr. Noah, again, objected. He stated that
any change to Policy that relies on “general feelings” and “common
understanding” being interpreted is unacceptable. Mr. Noah spoke to Mr.
Simmons directly and stated he wished to know how Mr. Simmons planned on
responding if an employee, or potential employee, claims “DART let me go
because of gender identity”. Mr. Noah stated that Mr. Simmons, in his capacity
as General Counsel, owed the Board and was obligated by his position to keep the
agency positioned in the best possible light as respects how the agency could
respond to any and all future litigation.