Barney Frank may be three years into retirement from politics, but his spirit continues to haunt the LGBTQ movement. As if to emphasize the exclusionary nature of their politics, a invite-only conference call between the “leaders” of the LGBTQ US movement rehashed a debate that has been going on since the so-called “Gay Liberation” movement decided that Sylvia Rivera and other trans women were harmful to their respectable image. The debate was sharply divided into two sides: purse string holders Gill Foundation and National Center for Trans Equality (NCTE) on one side and ACLU, Lambda Legal, and a somewhat less confrontational HRC on the other side. Gill and NCTE are advocating for what they call “incrementalism,” focusing energy and resources on passing anti-LGBT discrimination in employment and housing and essentially abandoning public accommodations to be dealt with later. ACLU and Lambda Legal reject this “incrementalism,” pointing to laws like HB2 as pressing discrimination that demands attention and questioning whether public accommodations would ever be returned to if abandoned now. That’s right: we are in a bizzarro world where the HRC is defending the most marginalized trans people against NCTE redirecting resources away from them. But aside from HRC, this lineup is not all that surprising and represents a fundamental difference between how the lobbying-focused nonprofits think of advocacy and how community and litigation-focused nonprofits think of advocacy.
There is a legitimate debate to be had around incrementalism, especially in legal strategy. Chipping away at constitutional precedents is a time-tested strategy for some pretty radical changes, most famously Brown v. Board of Education which was the product of decades of litigation eroding the white supremacist precedent of The Civil Rights Cases (including the infamous Plessy v. Ferguson). Conversely, from liberal South Africa to Leftist Cuba and Venezuela, there is an argument to be made that more effective legal changes come from creating a new constitution. But this debate is immaterial: what Gill and NCTE are proposing is not the incrementalism that attorneys like Thurgood Marshall fought so hard for. We can compare and contrast them with two timelines:
Thurgood Marshall’s caseline is much more clear, whereas we see that this is not the first time that sections of the LGBT movement have thrown others under the bus. That being said, the past four years have generally been good for trans civil rights, especially in Title VII, and as should be apparent from the EEOC v. Deluxe Financial Services it could be a platform to chip away and increase the rights transgender people have access to. There is a possibility that many of these recent gains may be reversed: the next presidential administration could reverse the Department of Education guidelines that G.G. v. Gloucester benefits from and could end the Department of Justice’s lawsuit against North Carolina for HB2, which would undermine Lambda Legal’s own lawsuit against North Carolina. The composition of the Supreme Court will likely be in flux as the current vacancy gets filled and others open as the fairly old current justices pass away or retire.
But these are all reasons why we must hold firm on our principles, if not push back even stronger. It is a basic principle of negotiation and organizing that you do not compromise in anticipation of resistance, for the resistance you fear may be disproportionate to the resistance which actually occurs. And you certainly do not undermine active campaigns by the movement, which is exactly what abandoning public accommodations would do.
Public accommodations itself is important outside of these arguments. The likely president of this country will be Hillary Clinton, one of the most neoliberal figures ever to run for president. Neoliberalism’s aim is privatization, and thus the means of resistance is the reclamation of the commons for the public good. It is vital in this time to vigorously assert the rights of all people to have access to public space: when we abdicate those rights, it allows neoliberalism to chip away at other rights to public space, from our access to parks to the right to assembly. As Rachel Tiven of Lambda Legal stated:
It’s about whether queer people can participate in public life. Can we go out in public at all? Can we go to the movie theater? Can we go to the shopping mall? Because our opponents would like to make anyone who is too queer or gender nonconforming uncomfortable — they would like us to just stay home.
NCTE’s Mara Keisling’s ridiculously condescending response to these concerns? “Incrementalism is how policy gets done while other people are whining about incrementalism. We have made it an article faith over the past few years that if a bill lacks public accommodations, it’s useless. That’s not true.” While those who only know Mara Keisling as one of the more affluent and powerful members of our community may expect nothing less, those of us who have been involved in these politics a little longer remember that Attorney Keisling was not always so “pro-incrementalism”:
Important debates about incrementalism need to be happening in how the LGBTQ movement strategizes its limited resources and time. For example, should public accommodations access focus on bathrooms (where the stalls minimize some of the concerns about privacy) and expand to locker rooms? Can a successful Title IX case like G.G. be congruent with also expanding protection under the Equal Protection Clause? Can any of these protections be extended to our immigrant trans family in detention centers or our incarcerated trans family in prisons? But the idea that we should simply not push for public accommodation access in anyway not only fails to push forward, it steps backwards. And I think there is a simple answer to why an organization would support fighting for redundant gains (after all, Title VII already gives employment protection) over the rights under attack: money.
Nonprofits are corporations, and like any corporation under capitalism, they seek to accumulate capital to grow and maintain their firm. The major difference is their firm follows the irregular accumulation pattern of chasing donors and grants. While freed from the standard profit motive, the nonprofit is still at the mercy of entities like the Gill Foundation that hold the purse strings. Those funders are obsessed with metrics to see that their investments are producing what they want, which in the case of foundations is generally easily identified spectacles to solicit more donations. Pictures to show at their galas; simple “wins” to brag about in newsletters; new standards to hold the other projects they fund to. I don’t mean to insinuate that NCTE only does work to please their funders: their discrimination survey in 2011 still is the best ever done on the US trans community. I just want to outline that the actions of nonprofits are not exempt from being motivated by concerns outside of their mission statements or considerations of effective strategy. While the struggle is real and I cannot blame any nonprofit from doing things to sustain itself, such an action that radically undermines active campaigns is not acceptable and brings into question NCTE’s ability to differentiate what is best for the community from what is best for their reputation.
In any social movement, solidarity is more important than marginal victories to put up on your organizational trophy wall. Mara Keisling’s condescending dismissal of the attorneys and community organizers that she is actively undermining will not be forgotten. She may come to realize that the marginal gains (i.e. the Pennsylvania bill) will not be worth dividing the movement. Then again, she is with her.