Wednesday, February 23, 2011

PART 3 – Incrementalism

I had to laugh as I started this section.  My spell checker did not even recognize the word incrementalism.    Apparently it is such an uncommon word that it is not in that “electronic dictionary”. 

As I have explained previously I am an engineer.  A computer engineer to be exact.  And I would have to say that since I entered the industry nearly three decades ago there have been a lot of changes.   You know what the funny bit is.  They did not happen all at once.

I know you are laughing at me right now.  You are saying, well of course they did not happen all at once.  What did you expect?  Yeah, we went from an 8086, to a 286, to a 386 to a Pentium and then a Pentium II, and so on.  You get the idea.  Each one was a little better, a little faster, a little cheaper and so on.  The development was, oh, wait for it.  Incremental.  Go figure.  And you know what, that is the way most of the world works.  Very little changes instantaneously over night.  I contend that when it does, we just happened to notice it.  And the change had been happening for a long time previously.  Like those mushrooms that appeared overnight in your front yard.

And so it goes with law and public policy too.    I am not saying for an instant that there are not leaps.  They certainly happen.  But like the fault line in an earthquake, they are usually the result of a lot of forces that have built up over time.

I have heard a lot of folks comparing the struggle of Trans rights to those of race and in particular of black Americans.  I would say to those folks.  Hardly.  I keep looking on TV to see a modern Bull Connor with fire hoses and German Shepherds nipping at at the heels Transpeople on the street.  Of a Trans support group being bombed by an organized set of hoodlums   Of a great Trans leader standing on the steps of the Lincoln Memorial with thousands of Transpeople looking on cheering.  Of a groundswell of average white people saying “well enough is enough let’s fix this thing.”  Yeah, it is exactly the same as that.  Not.

That struggle took more than one hundred years to get to where it had critical mass.  The nation fought a war over such things, and that was just the start.  
And so to claim our struggle is anything like that would lead me to feel insulted if I was a black woman, let alone a black Transwoman.  The reality is I can empathize with that struggle.  But I can never know it.  And to presume I do is at best, insincere and arrogant.

And so when I look at my home state of Maryland and I hear noise about HB235 being a sellout.  And that we should take lessons from the civil rights movement of the 60’s and that what did not work then will not work now.  Or what did then will work now too.  I have to say nonsense.  Everything in the world is incremental.  Now I will demonstrate that point.

Even if HB235 had public accommodations in it and even if it could pass and survive a referendum, guess what, it would still be incremental.  Because it would not give you total equality.  It would not get you health insurance that has Trans specific care in it.  It would not protect you if you ended up in the criminal justice system. And, wait for it, it would not give you the right to sue somebody for refusing to sell you a hamburger because you are Trans.

Now I have your attention.  You see Maryland’s existing public accommodations law is very weak, and under it, unlike in employment and housing, there is no right to sue for it. Someone being denied a public accommodation can file a complaint with the Maryland Commission on Human Relations, but this weak law only allows the commission to order the place to stop discriminating in the future, and the place can be fined $500 for the first offense (and the money that the discriminator pays goes to the state coffers, not the person who experienced discrimination).  And for those keeping track of facts this is the real reason Sandy Rawls pulled her support from the bill.  Ask her…

Let me make this clear.  We have been seeking equality.  Not superiority.  And so even if we put the public accommodations in HB235, guess what.  It is a paper tiger.  It means nothing.  Or at best it means $500 for a business who messes up.  You can read up on it all here:

So in looking at incrementalism there are two kinds in play here.  The first is time.  You get something, you wait a bit, you get more.  The second is in space.  And by space I mean local government.

There have been charges tossed out there that you MUST have a state law.  That it is the only solution.  Really?  I guess the well over 100+ other U.S. municipalities with gender identity protections missed that point and went ahead on their own.  And in point of fact it exists right here in Maryland, right now.  Montgomery County and Baltimore City have protections.  So I guess the feared “Balkanization” of the state is already underway.  And have there been problems?   I have not heard of any riots in adjacent counties as a result.  Nor has there been a flood of folks to, or from, Montgomery County that I am aware of.  Perhaps somebody else has data.

In point of fact the Maryland State Code, via article 49B, allows certain counties/cities to enact their own discrimination laws, separate from the state.  I kid you not.  It has and can be done in Baltimore City, Baltimore County, Howard County, Montgomery County and Prince Georges County.  How about that for precedent?  Here, don’t take my word for it, go read the ordinances yourself.

Local Ordinances
• Baltimore City Code Art. 4 §1-1, et seq.
• Baltimore County Code §29-1-101, et seq.
• Howard County Code §12.200, et seq.
• Montgomery County §27-1, et seq.
• Prince George’s County Div. 12 §2-185, et seq.

So if our counties and cities, at least the most progressive ones, found that the right way to proceed in Maryland was to do things this way where should you be adding additional protections on public accommodations?    Do you think it is easier to convince the Howard or PG County Council to act as opposed to our fearful state legislators?  That assuming there is a referendum on the matter that it is easier and more likely to defend it at the county level rather than the state?  I do.  And the funny thing is, so did somebody else long before me.  Otherwise this framework would not already be in place.  Let's use the tools that are already in front of us.

If I missed a point or got my info wrong please let me know.  I confess I am not a lawyer, or a politician and there is a possibility that my interpretation of this is not correct.  If so please offer some backup rather than just belligerent assertion. 

So let me wrap this one up.  Adding public accommodations to HB235 will do almost nothing to help the community.  It at best creates a slap on the hand to an offender.  With respect to public accommodations Incrementalism is the only way you can add something that might remotely have some impact, and the fact is it is already how we do this with respect to discrimination in Maryland.  Let’s not reinvent the wheel.


  1. An Addendum

    Recently attention has been brought to HB285 [that is not a typo] which would put more "teeth" in the current Public Accommodation law in Maryland. This was introduced by the same delegate that brought in HB235. The reason is obvious. The delegate saw that public accommodation law in Maryland falls short and decided to try and do something about it. Unfortunately for HB235 you must draft new law to be responsive to the present law, not future potential law. And to be frank HB285 will likely face opposition from folks who cater to the public as it would increase their exposure to all forms of discrimination, not just transpeople. If, and only if, it passes and becomes law would there be any reason to pursue public accommodations at the state level for transpeople. Unfortunately the prospects do not look good for HB285 in 2011.

  2. Just to be clear about where HB285 came from.

    The National Federation of the Blind asked Delegate Pena-Melnyk to introduce HB 285.

    National Federation of the Blind of Maryland Contact: Sharon Maneki,
    Chairman, Legislative and Advocacy Committee, 9013 Nelson Way,
    Columbia, MD 21045,
    Phone: 410-715-9596