EXCLUSIVE INTERVIEW: Abby Dees * Civil Rights Attorney

Last year, I sat down with Abby Dees at a Starbucks here in Fresno to interview her about her book, Queer Questions, Straight Talk. That book, a short, smart and humor filled,  yet serious take on communications between straights and gays is a suggested read.

Lately, Abby is utilizing her talents as a civil rights attorney to work with groups and companies in bridging the divide inherent in areas of LGBT diversity information and training, legal issues and communication.

Abby and I spoke by phone to discuss some of the issues facing LGBT Americans in the workplace, controversy over GLEE, the repeal of Don’t Ask Don’t Tell, and a topic dear to both our hearts, free speech…

CHRIS JARVIS: So you’re dealing now with legal issues in the workplace?

ABBY DEES: Also communication. I think a lot of people look at diversity goals and employment issues around race and identity as things to be afraid of and nervous about, so my approach is how to get beyond that and how to make the most of the legal requirements and get back to the idea that diversity is a good thing.

CJ: Can you tell us where LGBT employment rights stand in California right now?

AD: California is generally a model state. There are statewide protections against discrimination in the workplace that also include gender expression. We also have a lot of local areas, such as San Francisco, LA and West Hollywood, that go above and beyond that. So in California you are protected, but the burden is often on the employee to show that indeed, to show that the employer acted in violation of the law. On paper, though, it’s quite good.

CJ: So we’re covered in hiring, firing, sexual harassment, etc.

AD: Right. The only thing that’s sort of an issue is that while we have some marriage rights and domestic partnership, we have this funny, weird situation with some of us being married, some being partners…all of those rights are supposed to be treated as marriage rights. The problem is when you have the federal government hiring here or you’ve got federal benefit plans, and then it doesn’t always work that way.

CJ: So let me ask you this. A lot of times when I’m talking to people about marriage versus civil unions, a lot of people still believe those two are the same thing, that they afford you the same rights, and of course they don’t . How do insurance companies deal with that. In California are they forced to deal with same sex marriage and civil unions the same as traditional marriage?


AD: Yes, in California they are. They only exception to that is on a federal level. I will say, this is one area where Obama has been sort of quietly making some changes, nibbling around the edges. For example, until last year, if you inherited your partners 401K, you would be taxed on it if you were in a same sex relationship. That’s one of the things that Obama has changed, where in the states that have same sex marriage or legal recognition of same sex relationships, then you get the benefit of those things. So it depends on how your state recognizes these relationships. There are states that have domestic partnerships that are not held as equal for all legal intents and purposes.

CJ: So it’s valid for us, when we have conversations with people, to say that civil unions and marriage are not the same thing.

AD: Right. You absolutely cannot make that blanket statement. And in California there are some sorts of procedural differences in civil unions and marriages. They’re more sort of technical, but there are some differences.

CJ: What about the current appeals case for same sex marriage in California. Any idea where we stand?

AD: Well, marriage in California is like a game of hot potato. This is just my feeling, but I feel the California Supreme Court and the circuit court, they want to rule in our favor, but they’re aware of the political attention on this thing that they are absolutely bending over backwards to appear fair, which is actually a little convoluted.  So they sent it back to the California Supreme Court to determine the standing issue.

CJ: I have to say I was surprised by that move. I thought they’d considered whether the plaintiffs had standing to bring the case to appeal prior to the hearing, given that the Attorney General and Governor of California declined to appeal Walker’s ruling.

AD: What’s happening is they’re doing this for all time. That’s what Judge Walker was doing. He was so aware that he was doing this for all time.  So he wanted to create a record that wouldn’t be easily dismissed. Of course when you get up to the appeals court you’re not really dealing with factual records anymore, you’re dealing with kind of making sure you’ve dotted all your i’s and crossed your t’s.

CJ: It seems like it’s taking too long to back from the Supreme Court. It seems like whether they have standing would have been a very easy decision to reach.

AD: I know. I am worried that the California Supreme Court is going to use this as their way out. I’m going sort of both ways on this. I’m worried that they’re going to use this as a procedural way to get out, but even then the issue’s not decided. If they decide these people have standing then we have to go back to the circuit court.

CJ: Let’s say they decide these people don’t have standing to bring this case. There’s no one else who can appeal it, so Walker’s ruling would stand?

AD: Right.

CJ: And if they decide they do have standing what do you think will happen?

AD: I don’t know. I feel like they’re going to lean our way. Now maybe that’s because when I was listening to all the trial court proceedings, to me it was such a clear case.

CJ: And I’m with you on that. It seems like a slam dunk. Then again, look at the way the California Supreme Court overturned their original ruling, which legalized same sex marriage. It’s not all logic and reason. Some people are trying to keep their jobs, or not mess with majority sentiment.

AD: After the original marriage decision, I was shocked at how the California Supreme Court sort of turned and ran. It seems they completely contradicted their own language.  So that’s what I’m worried about. I think the circuit court would rather have this taken care of on a procedural level.

CJ: And if they rule in our favor are we moving on to the US Supreme Court?

AD: If they rule in our favor, if they decide the parties have standing and they rule in our favor, then yes, it can move on to the US Supreme Court. But if the ruling is they have not standing here in California, if there’s no one to bring that case, then it dies. That’s why the standing issue is really important.

CJ: So the bigger victory would be to have the Supreme Court say they have no standing to appeal the ruling.

AD: That depends on who you talk to. The problem with that is it’s a victory for California and the Ninth Circuit, but it seems that this is such a well crafted case with two very good lawyers, and that the ultimate goal was to take this to the US Supreme Court. So if that doesn’t happen this time around, the case dies here in California, even though we’ll have legal same sex marriage, on a national level you have to start from scratch.

CJ: So it’s a victory for California but a setback for the nation.

AD: Right. But the silver lining is that the Ninth Circuit is incredibly persuasive to what the other circuits do, that it’s going to have an effect. It’s going to give other circuits permission, basically, to go that way.

CJ: Let’s talk about some gender issues. Gay rights, as far as employment in California, seems to be full steam ahead, but what about the touchier issue of transgender rights?

AD: Well the last big battle, as you probably know, had to do with the employment non discrimination act (ENDA).

CJ: Right, in which they removed the transgender portion of protection.

AD: Well, it’s back in. So that’s a victory, but it’s also sort of died. It was introduced by Barney Frank in the last Congress and that Congress ended without any action. I’m worried with the change in the House of Representative, that it’s going to go nowhere.

CJ: Right, for quite a while, don’t you think?

AD: For quite a while. It seems nobody wants to stake their political reputation on ENDA right now. Which is a shame. My theory is that the left, which typically are supporters, are so used to being in defensive postures about all this stuff, that they’re not going to actively put something out there and stand behind it.

CJ: Which seems to strange. I would say that marriage is a touchier issue and yet there seems to be more ground being gained there. How is not a slam dunk for anyone to say that, in America, we will not allow anyone to be discriminated against in the employment arena?

AD: I know. Now if you look at some of the early history of ENDA, it was a compromise itself. There was an original bill that was a full gay rights bill, and our advocates decided that was just too big a pill to swallow for America, so they shifted focus to employment issues. I understood the arguments from both sides about the inclusion and exclusion of transgender rights, but I buy the Martin Luther King argument that there’s never a wrong time to push for equality.

CJ: What would you say to a transgender person who may be looking for work and is in one of the stages of transitioning, and what issues that might bring up in the employment arena?

AD: It’s very important to know in your state and your county, what protections there are for gender expression or if there are any laws dealing specifically with transgender issues. It’s important to know what your rights are. There is a very good chance that where you’re looking for a job, you don’t have legal protection.

CJ: So how do people find out what their rights are?

AD: There are a couple of really good ones. There’s the National Center for Lesbian Rights. Despite their name, they really represent the broad spectrum of our community. They have a lot of legal information and they have a help line. Lambda Legal is also good. All these folks are online and they have a lot of online services and information. Find your rights. Get the statutes and citations, print them out, bring them out.

CJ: What about protections for employees from other employees, from joking, comments, etc. What are the protections there?

AD: I depends where you are. In California, you’re protected. If you’re working for the federal government, there are some limited protections. Starting with Bill Clinton and now with Obama, they’ve used some Executive orders to extend some of the existing civil rights act, and have added some soft language that basically says people can’t be fired based on things that have nothing to do with the job.

CJ: And recently Obama extended some spousal benefits to federal employees.

AD: Yes, he did some, around pension benefits and stuff like that. But there is no federal full protection.

CJ: And we won’t until we get ENDA.

AD: Right. But I’ll give HRC some credit on this.

CJ: Wow, that’s unique to hear someone say “I’ll give HRC some credit.”

AD:  (Laughs) And I say that reluctantly, because HRC often does take the middle path, and if you’re a grass roots advocate, it can be absolutely maddening. They have, though, worked very quietly to get a lot things through on a federal level with Obama. So if you’re a federal employee, and I’m not talking about the military, because they’re exempt, then you have some rights that have not been totally defined but are being interpreted, depending on where you go, as covering gender expression and sexual orientation.

CJ: Have you been seeing a lot of litigation on these issues? People fired over what are, at least under the surface, gender or sexuality issues, who are bringing historic litigation cases?

AD: If they are, they’re not a high level yet. NCLR is always representing people on a small level, but generally the focus seems to always be on the state level. I know that there are things in the pipeline but I am not aware of any threshold cases currently happening. When it comes to trans and sexuality issues, the majority of states don’t really have protection.

CJ: Speaking of the military and the recent repeal of Don’t Ask Don’t Tell (DADT) do you think that will have influence on federal employees in general?

AD: That’s one of the big issues that’s being debated right now. As you know, DADT is still in effect.

CJ: Right, they’re in the training phase for the transition.

AD: Right, and some of the things being negotiated right now are so, okay, you get rid of DADT, then what do you about partner benefits? There is a push to get partner benefits to be on the same level as it’s happening in the federal government, through executive orders. The military has always been exempt from most policy regarding federal employees.

CJ: So even once DADT is completely repealed, it doesn’t mean anything about benefits.

AD: It doesn’t mean anything about whether your partner can come visit you, partner benefits, etc. I think that’s going to be a while. I think it’s going to be a long process.

CJ: Do you think that’s something that will happen internally in the military on a gradual basis, or do we need more legislation?

AD: I think it takes people being out in the military. I think it has to come within. My feeling is that a lot of what’s happened with DADT in the last couple of years has come from service members coming out. What’s interesting is that transgender people are not specifically excluded from the military.

CJ: And won’t one of the things that may change as a result of DADT being repealed is that up to now, a lot of harassment or abuse hasn’t been reported because it could create a violation of the DADT and get you thrown out of the military, so now maybe incidents of harassment can be reported safely?

AD: Right, but you have to know if there’s a policy that covers that. And that’s what really good about the Service Members Legal Defense Fund. They know the culture.

CJ: Abby, you’re now focusing on companies and diversity training, but what about another book? Are you still writing?

AD: Well, I have lots of passions around that but my main passion right now is free speech. I thought it was at a pinnacle in our cultural conversation a couple of years ago, but now it seems to be even more so. I’d like to write a very user friendly book about free speech.

CJ: Let me ask you this, because I’m a huge free speech advocate as well. What about this recent uproar over words, and specifically politically correct speech? You know, the N word, the F word, the D word…I watched GLAAD (Gay & Lesbian Alliance Against Defamation) attack the TV show GLEE recently for using the word tranny in an episode. Then they just went after Saturday Night Live over a commercial parody featuring transgender people which I thought was funny and more importantly, sent a message that transgender people are “normal” for lack of a better word. They showed transgender people at the gym, running large companies, etc. When I posted a comment on the GLAAD site using the words faggot, tranny, etc., they censored my comments, as every other comment was censored. What do you make of this?

AD: Well let me say that I’m glad that GLAAD exists. Generally speaking they’ve been a good voice for us. I have often found myself either wondering where the hell they were, when something seemed really obviously requiring a response, and then other times, just like what you’re saying, I’m thinking, “you didn’t get it, you just didn’t get it”.

CJ: Exactly. I mean, if you can’t print out the word on your own blog where you’re leading a discussion about the word, that just doesn’t make any sense to me.

AD: Right. You know, even if it hurts a little, I’m always gonna be on the side of allowing the speech. Context is everything, as is intent.

CJ: Exactly. You know I wrote a couple of articles about this issue just after it happened. I explained that it’s completely different when you use the word in an article in which you’re highlighting the issue than it is when kids yell it at each other on the playground. It’s completely different. And I got a lot of nasty comments about that.

AD: I’m sure you did. I think this goes to the general lack of sort of subtle critical thinking. You know, it’s that old argument, why can’t I use the N word and you can. Some people you can explain it to a thousand times and they’re just never going to get it, so let’s just make it not okay. I think on the whole that we’ve really moved toward that kind of knee jerk reaction to things and an unwillingness to accept nuances, or just the idea that words have everything to do with context and intent.

CJ: And now bullying is the hot word, and it’s used inappropriately over and over again. A drag group here in Fresno had a radical reaction to a simple review of their performances, and ended up claiming they were bullied. Bullying is in the media right now because LGBT teens are killing themselves due to actual bullying, so for someone in a theatrical situation to claim bullying over a review is shameful, I think.

AD: Everything gets so reduced that way, so watered down and meaningless. It really is too bad, and I think it’s human nature. I remember when I was doing political work when I was very young, like 19 years old, and everyone was taking everything so damn seriously and not getting the differences between things, and the general feeling was you just could not open your mouth. So going back to my book, Queer Questions, Straight Talk,  that was sort of the idea I had in mind. I’d rather have you talking about this stuff with people you care about than staying silent. You know, put it out there even it makes you squirm a little bit. You’re grownups, you can deal with it.

CJ:And you know what’s interesting to me is that we’re now in a period where there is so much LGBT activism, so many local activists all over the country, doing everything they can to open their mouths right and left, and then on the other side of it they’re mired in this politically correct speech which is diluting everything we’re doing.

AD: That’s part of what I want to do with the consulting work, is to get away from the politically correct, brain dead response. You know, what’s the original idea? I always go back to Miss Manners. After all my political career I’ve sort of come back to Miss Manners has it right. You know, whatever polemic you want to follow, I’m just going to follow Miss Manners. Somebody said to her, you know, I’m just tired of all this politically correct speech, everything I say is up for criticism, and her response was well, if politically correct means you just don’t say rude things about each other, then I’m all for it. But I understand that politically correct end up being this sort of phrase meaning we’re shutting up for fear of criticism. So don’t be completely thoughtless with your words, but don’t be silent.

CJ: You know what I think is ironic, is that all of us, each and every one of us, if we had a gay or lesbian friend and a straight enemy standing in front of us and they both called us faggot or dyke, or whatever, we’d instantly know which one was a slam and which one was bad and which one was okay.

AD: Right, exactly. I actually wrote a little article about this, it was sort of like, a gay naming thing. It was my handy little guide to figure out what you call your favorite gay…you know, gay or lesbian, LGBT, etc. And I said, just don’t worry too much about that. If you have a friend who uses the word dyke in a friendly way, I’d understand that I have express permission to do so, but if you do, just go ahead. Just don’t worry about it so much. I think we all need to have just a little more patience with each other, and a little bit more of a sense of humor.

Abby Dees conducts webinars with companies, employees and groups interested in information about diversity, as well as working directly with companies and individuals on such topics. She’s a smart, well spoken advocate for LGBT civil rights. She’s currently working out ideas for a new book about free speech. You can contact Abby Dees at  her official website… abbydees.com.


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