Transgender inclusion in state non-discrimination policies: The democratic deficit and political powerlessness

By Andrew R. Flores, Jody Herman, and Christy Mallory
December 2015

Transgender people—people whose gender identity or expression is different from their assigned sex at birth—and their allies advocate for the inclusion of gender identity or transgender in state non-discrimination policies. These policies generally proscribe discrimination in employment, housing, and public accommodations. Courts and administrative agencies have determined discrimination against transgender people is a violation of existing statutes, but there remain efforts by advocates to seek policies that explicitly prohibit discrimination on the basis of transgender status, which are often the result of legislation going through the political process. A pluralist understanding of the political process theorizes that a majority coalition of minorities can offer social groups policies they support. This rests on the presumption that a majority coalition of minorities should rule. Any indication to the contrary may suggest a democratic deficit, whereby more than a majority is necessary for policy introduction. We find that there is a substantial democratic deficit regarding the inclusion of gender identity or transgender in employment non-discrimination policies. On average, state support for the policy must be 81% in order for the state to have a policy reflecting such sentiment. This leaves substantial implications for the political powerlessness of transgender people in the political process.

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