Surviving the Gender Wars

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\"llewis-genderwars\"The battle of the sexes is as old a story as human history. But it’s taken a new and somewhat disturbing twist lately, becoming a national debate on transgender rights. Or, as it’s been called, the Bathroom Wars.

At the center of this gender-bending controversy is whether people should be allowed to choose the restroom that corresponds to their gender identity or the one appears on their birth certificates. North Carolina became something of a touchstone with a controversial new law that bars transgender people from using school and government restrooms that align with their gender identity.

The ensuing outcries, from both sides of the issue, have made the Republican presidential debates look like a love fest.

The Battle Builds

But this is a complicated issue that’s getting more convoluted every day. Nothing is simple when the ultra-liberal PC police, who often don’t live in the real world, face off against the ultra-conservative morality brigade of homophobes, xenophobes, and run-of-the-mill bigots, who have turned this discussion into a battle over civil liberties, discrimination in the workplace, religious freedom, personal safety, and privacy.

Adding gasoline to the fire is the thorny issue of states rights vs. federal legislation. The Equal Employment Opportunity Commission (EEOC) has already said that barring employees from using bathrooms that correspond to their gender identity violates federal law. The U.S. Department of Justice has stated unequivocally that it is a violation of the Civil Rights Act. Clearly, this is going to end up as a judicial issue.

You might think that Washington has your back on this one. But retailers are basically caught between the proverbial rock and hard place. The majority of retailers would simply like to do the right thing—or at least the expedient one—without all the attendant publicity and hate baiting. What the government does is irrelevant. The simple fact is that when you come down on one side of an issue, you risk alienating those on the other.

Who’s Who?

Let’s take a step back here and look at the implications. It’s not just about transgender shoppers or employees. It’s about people who sympathize with and support them and those that don’t. The Williams Institute at the UCLA School of law has estimated that there are about 700,000 transgender people in the US. Transgender groups put the figure at closer to 3.2 million or more. That in itself represents a lot of register rings.

But a key takeaway is that an increasing number of people know and accept transgender people. According to a survey from the Human Rights Campaign, the nation’s largest LGBT civil rights organization, 35 percent of those surveyed know or work with a transgender person—excluding Caitlyn Jenner—a number far higher than just a year ago. Even more telling is that 66 percent of those who know a transgender person feel favorably toward them, indicating that the number who would support laws protecting this group is increasing significantly.

But maybe not enough. The opposition, no matter what their motive, is highly vocal and voting with their dollars. Target put itself center stage with a courageous stand allowing transgender employees and customers to choose restrooms and fitting rooms that correspond to their gender identities.

Boycotting Target

Target’s move was immediately cheered by supporters of transgender rights but vilified by groups like the American Family Association, which gathered up a petition of nearly one million signatures calling for a boycott of Target stores for threatening public safety. There is some evidence that the chain’s stance has cost them customers and sales and may have even impacted its stock price.

Interestingly, a survey conducted by Fortune found that 58 percent agreed with Target’s policy. Then again, 42 percent didn’t. Therein lies the dilemma.

This issue is not going away nor is the publicity going to subside. Quite the opposite. It sparks moral outrage in people like North Carolina State Senator Buck Newton, a candidate for state attorney general whose campaign battle cry is “keep our state straight.” Senator Newton firmly believes he is keeping southern women safe from sexual predators who have a three-day beard and are dressed in their mothers’ housecoats.

Then there’s Gordon Klingenschmitt, a state legislator in Colorado who has stated that transgender people shouldn’t be allowed in churches or public restrooms. Former Republican presidential candidate Ted Cruz is cut from a similar piece of cloth, smearing transgender people as sexual predators and part of a “gay jihad” who should only be allowed to go to the bathroom at home. Florida State Representative Frank Artiles has proposed a bill that would jail people for using the “wrong” restroom.

Hard to believe, but the ever-entertaining Donald Trump has been a voice of reason, stating that transgender people should be allowed to use any bathroom they want. I suspect his attitude will change after the convention.

Trickle Down Economics

But taking a stand on any issue, let alone such a controversial one, can have significant economic consequences that can trickle down to retail. North Carolina has been boycotted by stars like Bruce Springsteen and Ringo Starr, and activists are trying to get the NBA All-Star game moved from Charlotte.

More important are the corporations who are either boycotting the state or cutting back on expansion plans. Among them are: General Electric, Deutsche Bank, PayPal, Dow Chemical, Pepsi, Hyatt, Hewlett Packard, Whole Foods, Levi Strauss and Lionsgate Entertainment.

Walmart is sitting somewhere in the middle of this debate by using its political clout to push through an amended version of the Arkansas’ religious freedom laws, which would have given businesses legal cover to deny services to gay and lesbian individuals. Time will tell whether this is political capital well spent. Sears and Kmart are also taking a proactive, albeit less dangerous, approach. The chain has reaffirmed its commitment to human rights in general and maintains it has strict policies against discrimination of any kind. But it has yet to take a stance on transgender issues which may be the wisest move at this point given the tenuous political and legal climate.

Other chains like Starbucks, Barnes & Noble, and Hudson’s Bay Company, which owns Lord & Taylor and Saks, are also trying to get ahead of the political curve. But it should be noted that both Saks and Barnes & Noble have been the subjects of lawsuits by transgender employees for discrimination and harassment.

Normally, it would be somewhat unusual to find big chains being so proactive on an issue which could circle back to bite them in the behind. However, by being more progressive, Target and others are using the issue as advertising and are picking up a lot of goodwill in the process.

Trans-parency Prevails

Clearly, the transgender community in the US, although still marginalized, has never been more visible thanks to the publicity surrounding Caitlyn Jenner’s transformation, plus other celebrities like the teenage transgender author Jazz Jennings and actress Laverne Cox. They have given a human face to a segment long characterized by stereotypes.

But nothing changes overnight. All you have to do is read comments on social media sites to get a sense of how divisive an issue this really is. The entire definition of retailing is to throw open the doors to everyone and make them feel welcome by providing a pleasant experience. But what about other customers who may find that experience uncomfortable? Their attitudes must be respected and can’t be changed by shoving another one down their throats.

Perhaps this is one of those teachable moments for everyone.

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