Spirituality and the New Feminism

[This post is by my friend Robin Rice and is copied with her permission.]

Spirituality and the New Feminism
By Robin Rice

(Robin Rice is an author, spiritual mentor and contemporary shaman. Visit her at www.BeWhoYouAre.com.)

The first time I heard the word “feminism,” it sounded to me like there were rocks in the speaker’s throat. I don’t remember how old I was or who spoke the word, but I do remember immediately deciding that I would have to be careful should I ever want to have anything to do with such an “ism” myself.

By the time I received my college diploma, I’d sorted out the messages well enough. The die-hard feminists were working like dogs and taking a beating for my rights to do anything a man could do. You had to hand it to them, because you knew you were going to follow in the wake of their success. But calling yourself one was to take on those very beatings. It wasn’t clear–at least in my mind–that joining the good old boys was a privilege worth fighting for.

In the end, I decided feminism was a theoretical ideal best not taken too far. Tap away at the glass ceiling all you want, just be quiet about it. Be strong and passionate, but only where and when appropriate. Step up to the plate as a man’s equal, but don’t wound his pride by actually winning. Be hard at work and soft in bed. At one point, I actually had a post-it note up that said “Think like a man, love like a woman, eat like a bird, work like a dog.” I was a frantic ping-pong ball trying to make it all work.

God did not help. At least not the God I’d been raised on. In that paradigm, there was God the Father, God the Son, and a Holy Spirit that was assigned no gender. Men were appointed heads of the households. Women didn’t have to walk a step behind in public, but the submissive directive was still crystal clear. And while this was justified by the admonition that men were to love their wives as themselves, I had the sense that few of the men sitting along those pews had any idea of how to do either.

As for strong, sensual women with spirit, holy or otherwise? Well, we were “dangerous” and to be strongly discouraged.

That I was.

Until the day a new wind caressed my face. A breeze so fresh it nearly knocked me over with delight. A firm, supple voice began speaking to me of the kind of freedom even fairy tales dared not offer hope for. The freedom to be who I really was, a woman “as is,” wild and wonderful, powerful even while gentle. The freedom to be successful by my own terms without sacrificing my true feminine self in the process.

I was terrified to learn this hope sounded much like the kind offered by what some would call The Goddess. After all, Goddesses were earthy, unpredictable, sensual, moody and not always nice. Lots of them were big, ugly, and old–the three absolute no-no’s in a modern woman’s success story. Besides, that was just “New Age” thinking, right?

I decided I wanted no part of it.

Yet, yet, yet… I had felt the breeze, heard the voice. A new spirituality had opened up in me, a new spin laid into that ping-pong ball. My inner soul just laughed at my dismissive decisions. To my heart, the old ways seemed immediately primitive. The new ways promised an adventure I could not bear to deny myself. Feminism took on a completely new meaning to me. It wasn’t about making it in a man’s world, I realized, but about creating a new world for the woman in me.

New ideas tumbled forth, one after the other. What if women were here for a reason beyond both mending socks or shoving her way into a board room? What if women were here to transform board rooms with grace and at the same time not be insulted when socks needed to be mended? What if women were here to intuitively hear the goddess, and so pass on her messages…”Enough war, now, brave soldiers, put down your weapons. Enough building now, fine crafters, it’s time to give the land, and your selves, a good rest.”

The questions came fast and furious, as if riding in on waves. What if we could accept ourselves, and so not rape and pillage the earth and it’s resources just so we can go into debt for the best beauty cream? What if we could slow down enough to hear our children tell us what they love, what they are afraid of, and what they really need? What if we took everything less seriously, and started to laugh from the belly again? What if that, and not a multi-billion dollar research firm, held the key to curing cancer?

What if we learned to trust our gut and open our mouths about what we know as truth, even when there is no definitive proof to offer? What if we followed the moods of the seasons, as the rest of creation does, and so gave ourselves times of sowing and reaping, dancing and sleeping, instead of go, go, go, go, go? What if our battered souls felt honored enough to speak, and so shared it’s secrets about things like how to be replenished by the spirit of a tree?

The new ideas took hold in me quickly. Like a powder keg they burst through virtually every old relationship I had, costing me. Costing my children. The death before the rebirth. Yet in this new understanding, I had at last found a way to celebrate all that was within me. This was not the dulled feminism of compromise I had known. It was a brilliant feminism, based on inclusion of all that I was, dark and light, the seasons within my very womanhood. Here the ping pong was not bobbing franticly back and forth, but flowing gently to the rhythm of all things.

“I am the beautiful maiden and the hag!” I began to shout to the moon, sometimes kindly, sometimes not. I became passionate beyond propriety, deeply dangerous to old school thinkers. I loved every minute I wasn’t in heartbreak and tears (and even some of those).

It wasn’t long before I learned that this “new” spirituality wasn’t new at all. The Goddesses who spoke to me had been around longer than my own childhood religion. A lot longer. Like single facets of sparkling light on a magnificent chandelier, each Goddess came to teach me an aspect of The One divinity that sourced us all. Baba Yaga taught me to be a wild woman and to laugh in the face of social risk. Isis lovingly showed me how to mother my children, especially at those crucial moments when I knew what I had to offer was not enough. Kali had me vomiting blood in India, dancing me between my karma and compassion in a way I was not sure I would survive. Kuan Yin whispered to me about gentleness and the value of a woman opened by heartbreak. Pachamama offered healing again and again, until at last I loved the earth I had, in the old days, taken little notice of. Oya swirled her lessons of tumultuous change in ways so stunning I could not deny her a place in my writing. She lives in my novels, alive and well, and I like to think that because of this we have come to terms.

I would like to say that it has all worked out; that these Divine Mentors showed me an easy road with clear signposts. I cannot. Neither can any of other goddesses-in-training I’ve met along the way. The road She points us toward is through an uncut field, because it is our own. The signposts come mostly from our desires and our intuition. Only after we know what we know can we apply our logical thinking to the “how” of doing what needs to be done. Even then, we are ridiculed (or worse) for our ways. We are still existing in a man’s world, after all. Brick walls are no more fun to crash into than glass ceilings.

No, it has not been an easy road. But it has been a road with a breeze.

Today, as I put one foot in front of the other, I am deeply grateful for the work of the feminists who went before me–even if I have not understood them fully. They did cut a first path and allowed me to see one view of what was possible. I am also grateful for my childhood religious training. In seeing the masculine aspects of God/Goddess, I was able to find what was missing.

Even so, I hope to show something different to my son and daughter. I hope to show them a feminism and spirituality that honors dark and light, up and down, here and there, her and him. I hope for them to be able to shout to the moon “I am the beautiful maiden and I am the hag!” Most of all, I hope they hear the voice I hear when She shouts back, with mirth in her throat, “So you are, my blessed child. So you are!”

NOTE: This article first appeared in Natural Beauty and Health Magazine.

FREE USE! Robin’s articles are copyrighted, yet are free to use in print or on the web through websites, e-zines, etc… so long as you 1) contact Robin at info@bewhoyouare.com to let her know when and where the article will appear, 2) be sure all articles have both the “previously published by…” credit listed at the end (if there is one), and 3) include a byline that says: “Robin Rice is an author, spiritual mentor and contemporary shaman. Visit her at www.BeWhoYouAre.com.”

I’m a Dreamer

Over on Bilerico, Karen Ocamp shared her take on President Barack Obama’s speech at HRC’s annual dinner last night.  I don’t go for name calling (Karen says Obama is a “sissy”), but I share her disppaontment at Obama’s failure to use the power of his office to put action to his words, to demonstrate there is more to him than rousing speeches and inspiring words.  Here’s my dream of what Obama could have said to show that “Yes, We Can!” is more than just a slogan to win votes and volunteers, which I left as a comment on Karen’s essay:

I was very disappointed in Obama’s speech. I don’t think it would have been much more of a risk, politically, for him to have said, “Tonight, I call on Congress, on Speaker Nancy Pelosi and Majority Leader Harry Reid, to start making my vision for America a reality by passing ENDA and delivering it to my desk to be signed into law.” Or to say, “Today, I signed an executive order telling the United States military to stop spending your tax dollars on investigating and discharging dedicated Americans who have volunteered to serve our Nation simply because of who they are. Our county cannot afford to lose those soldiers, sailors, air men and women and others. But, more importantly, I signed that Order because it is the right thing to do. And, now, it is time for Congress and the rest of America to do the right thing too. We can no longer stand on the sidelines and watch as Americans are denied the promise of equality that this great Nation has stood for for more than 200 years simply because of who they are, and who they love.”

But, then, I’ve always been a dreamer. It’s hard to maintain that hope, however, in the face of continued disappointment.

As Rep. John Lewis, who marched with Martin Luther King, Jr., said on the floor of the House during the debate over a trans inclusive ENDA in November 2007, “It is always the right time to do the right thing.”  Mr. President, the time is NOW!

Validation

I haven’t blogged much lately and I’m not sure I have all that much to say tonight.  However, I do want to share this video with you.  It expresses a lot of what I believe about the world and what I try to do with my own life.  None of us ever hears that “we are wonderful” enough times to really fill that gaping hole that many of us grow up with.  Imagine what the world would be like if we each went out of our way even just once each day to say a kind word and validate the beauty, the holiness, of another person.  Give it a try!  Who knows what might happen!  (I know the video is long, but I think that, after you watch it, you’ll be grateful for every second of it.)

Resources on cisgender, cissexual and cis privilege

Perhaps, someday, I will have the time to write a proper blog on this topic. For now, however, I simply want to record (for my own future use, and that of my friends) various internet discussions on the the use of the terms “cisgender” and “cissexual” and the issue of cis privilege. I have encountered these discussions over the last few days as I explored these topics in response to the controversy that erupted on Pam’s House Blend, when one cisgender male objected to being informed that’s who/what he is because it hurt his feelings to have his position of privilege as a cis person (i.e., one who doesn’t have to endure the challenges, not to mention the harassment, discrimination and other oppression, that those of us whose gender identity differs from the biological sex to which we were assigned at birth, i.e., trans folks, experience on a regular basis) pointed out to him. I suspect I’ll revise and add to this list as time goes on.

The posts where this controversy arose on PHB:

http://www.pamshouseblend.com/diary/11728/aravosis-needs-to-issue-his-own-apology-to-trans-people-before-1st-citing-tgs-on-lgbt-civil-rights

http://www.pamshouseblend.com/diary/11753/

The resulting discussion on Questioning Transphobia, which contains links to several other relevant discussions: http://questioningtransphobia.wordpress.com/2009/06/29/cis-is-hostile-terminology-really/

Julia Serano’s blog post on the origins, of these terms and her use of them in her book, Whipping Girl: http://juliaserano.livejournal.com/14700.html

Some discussions prompted by the above discussion on QT:
http://www.xoros.net/2009/06/30/cis/
http://queersubversion.blogspot.com/2009/06/cisgender-privilege.html
http://tgnotwhatyouthink.blogspot.com/2009/07/counteroffensive.html
http://mythcongeniality.blogspot.com/2009/07/in-margins.html

An earlier discussion on QT explaining why every cis person should “check [her/his] cis privilege” before getting all huffy after being told s/he *is* cisgender and/or cissexual and, consequently, is speaking from a place of cis privilege: http://questioningtransphobia.wordpress.com/how-to-check-your-cis-privilege/

A simple explanation of the meaning of “cis”: http://smashthecisarchy.wordpress.com/2009/04/23/trans-101-what-is-cis/

An interesting and informative post that explains why I will hereafter ensure that I always say “trans woman” and “trans man,” not “transwoman” and “transman,” which ties into the discussion of cisgender, cissexual and cis privilege: http://takesupspace.wordpress.com/2008/10/15/put-the-goddamn-space-in-transwoman-transfeminism-transmasculine-etc-language-politics-1/

UPDATED with links to some additional discussions that have recently arisen.

UPDATE, 7/13/09
A cis woman’s take on being cis – http://jadedhippy.blogspot.com/2009/07/hey-guess-what-im-still-cisgender.html
Continuing discussion on Questioning Transphobia – http://questioningtransphobia.wordpress.com/2009/07/04/a-point-about-cis/

Why the Jury Had No Trouble Convicting Angie Zapata’s Murderer

When I heard yesterday that the jury in the trial of Allen Andrade, the man charged with murdering Angie Zapata, had reached a verdict in less than two hours, I was hopeful, since a quick verdict usually means that the prosecution’s evidence was so overwhelming that the jury saw no need for extended discussion. As I watched the judge read the verdicts convicting Andrade on all counts, my hope turned to elation. To the extent that our criminal justice system can actually deliver “justice,” the jury did everything that we could have hoped for. My elation, however, was, and will always be, tempered by the knowledge that Angie, a beautiful young trans woman, will never have the opportunity to live the life of peace and dignity that all of us, trans- and cisgender alike, deserve.

For the rest of the day, I surfed the Web to see what others were saying about this truly momentous event. There I found several people expressing concern that the jury’s verdicts may be vulnerable on appeal on the theory that the short duration of their deliberations indicates a failure to adequately consider the evidence. My experience as a criminal appeals attorney, however, tells me that there is no reason for such concern.

The Weld County District Attorney’s Office charged Andrade with first degree murder and a bias-motivated (i.e., “hate”) crime for bludgeoning Angie to death with a fire extinguisher that he found in her apartment. Before the trial began, however, his attorneys asked the judge to tell the jurors that they had the option of convicting Andrade of second degree murder, manslaughter or criminally negligent homicide, instead of first degree murder. Much to my surprise, the judge agreed and instructed the jury on all four types of homicide as “lesser included offenses.” (A “lesser included offense” is a crime that contains some, but not all, of the elements of the greater charge, such that it’s impossible to commit the greater offense without also committing the lesser. As long as the evidence supports a conviction on the lesser offense, the Constitution requires that the jury be given the option to consider both the greater and the lesser offenses.)

The law on when the jury can pass over the greater offense and consider convicting the defendant on a lesser included varies from state to state. In this case, the judge instructed the jurors that they could not consider any of the lesser included offenses until and unless they first found Andrade not guilty of first degree murder. Thus, there was no reason for the jury to spend any time on those offenses until they decided whether to convict Andrade on the primary charge.

Throughout the trial, Andrade and his attorneys admitted that he killed Angie. That admission meant that the jury only had to answer two questions on the first degree murder charge: (1) was the murder intentional, i.e., was killing Angie his goal when he began to beat her with the fire extinguisher; and (2) was the murder committed “after deliberation,” i.e., was it premeditated. As the jury’s quick verdict demonstrates, those two questions were pretty easy to answer. Here’s why.

First, bashing someone in the head with a fire extinguisher multiple times until her skull is crushed is a pretty good indicator that Andrade’s purpose was to kill Angie. After all, you don’t do that thinking, “Hmmm, she might or might not die if I bash her head in. Let’s try it and see what happens.” In addition, the autopsy showed that Andrade didn’t hit Angie any place other than her head. You don’t hit someone with a lethal weapon in the head but nowhere else unless you intend to kill her. In other words, because of the way he did it, it’s clear that Andrade intended to kill, not merely injure, Angie. Thus, the murder was intentional.

Second, because the most damaging portions of his confession were suppressed, the jury didn’t get to hear Andrade tell Det. Tharp that he hit Angie with the fire extinguisher the first time and thought she was dead; then, while he was going through her apartment figuring out what to steal, he heard Angie “gurgle” and saw her sit up, so he went back with the fire extinguisher and, this time, made sure she was dead. That’s absolutely conclusive evidence of premeditation, but, as I said, the jury didn’t get to hear it.

What they did get to hear is that Andrade started beating Angie with his fists. Apparently dissatisfied with the damage he could do with his fists alone, Andrade paused, took the fire extinguisher down from the wall of Angie’s apartment and used it to kill her. That pause, even if all he had to do was reach over and grab the extinguisher without taking a single step, was ample time for the premeditation or deliberation that the law requires for first degree murder.

Deliberation or premeditation, however, requires more than just the passage of time. It requires the prosecution to prove that the defendant actually reflected on or thought about what he was doing before delivering the fatal blow. So, how do we know what Andrade was thinking during that pause while he grabbed the fire extinguisher? The answer to that question is similar to the answer to the first one. We know Andrade was thinking about how he was going to kill Angie, because you don’t grab a lethal weapon like a fire extinguisher, after beating someone with your fists, and then use it to bash in her skull unless your plan is to kill her.

At this point, you’re probably saying to yourself, but what about the evidence (primarily the things Andrade said to his girlfriends from jail) that indicated that Andrade acted impulsively and without thinking or even knowing what he was doing? It’s true that there was plenty of evidence that the jury could have relied on to acquit Andrade of first degree murder. The beauty, and sometimes the bane, of the jury system in this country, however, is that it simply doesn’t matter how much contrary evidence there was. What matters is whether the prosecution presented enough evidence for a reasonable jury to find the defendant guilty beyond a reasonable doubt. Because there was more than enough evidence for the jury to convict Andrade, he and his family (and any other supporters he may have) can complain that the jury should have believed his evidence, not the prosecution’s, for as long and as vehemently as they want. In the end, however, it simply doesn’t matter.

How do I know all this and why am I so confident in my conclusions? As I explained in my previous post, I’m an attorney. Because of the nature of my practice, for the last 12 years, I have done nothing but pour through the record of trials like this one on behalf of defendants like Andrade looking for claims that their convictions were improper, for example, because there wasn’t enough evidence. Every single time during those 12 years that I have argued that the jury made a mistake because there wasn’t enough evidence, the appeals court has “schooled” me by showing me that, regardless of how I think the evidence should have been interpreted, it was perfectly reasonable for the jury to see it differently and convict my clients. The bottom line from that experience is that, where the evidence is disputed and the jury chooses to believe the prosecution, the defendant always loses.

Because of all of these factors, there’s no chance Andrade’s convictions will be overturned on appeal for lack of evidence and any concern about the fact that the jury only took 2 hours to convict him won’t even be a footnote when the Colorado courts reject his appeal.

Angie Zapata’s Murderer is About to Cook His Own Goose, and It Couldn’t Happen to a Nicer Guy

On July 17, 2008, Angie Zapata, a happy and beautiful transgender woman who was only 18 and living on her own for the first time, was brutally murdered in Greeley, Colorado by Allen Andrade because she was trans.  Her murderer, of course, claims that he beat her head in with a fire extinguisher until she was unconscious, and then went back and did it again to make sure she was dead when he noticed her trying to sit up, in a fit of “uncontrollable” rage when he discovered that she had a penis.  (Oh, the horrors!!)  Of course, there is good reason to believe that Andrade already knew that Angie was trans, but his defense attorney has no choice but to go with the best chance she’s got for defending him, which is to blame Angie for her own murder.

The Weld County District Attorney charged Andrade with first degree (premeditated) murder, a hate crime for murdering Angie because she was trans (the first such prosecution in the nation), auto theft for stealing her car and identity theft for stealing and using her credit card.  Andrade’s trial began on Tuesday, April 14.  Yesterday, the prospective jurors got to hear for the first time what the case is about when the attorneys presented their “mini-opening” statements.  (Mini-opening statements are apparently relatively new in Colorado.  They’ve been in use here in Arizona for several years and are intended to give the jurors a basic idea of what the case is about, so that they can be questioned about whether the nature of the crime will make it difficult for them to be fair and impartial.)

The prosecutor told the jurors that Andrade had known that Angie was trans for some time and that he murdered her in a premeditated attack.  Andrade’s defense attorney, however, said that he felt “deceived” when he found out that Angie was trans,

and he reacted. He reacted, he lost control, he was outside of himself.

“Everything happened so fast, it was over before it started. He couldn’t control it. Those are the words you’re going to hear from Mr. Andrade. He never knew he had that kind of rage.”

(“In Transgender Murder Trial, Key Question Looms:  When Did Suspect Know?“, Greeley Tribune, April 16, 2009.)  In my opinion, if Andrade pursues that defense through trial, he’s cooking his own goose, which is fine with me.

I am a criminal defense attorney.  More specifically, I do criminal appeals, which means I represent people like Andrade after they have been convicted, either by a jury or by pleading guilty.  My job is to look over the shoulders of the police, the judges, the prosecutors, and the defense attorneys to make sure that everyone follows the rules, imperfect as they are, that have been adopted in this country to help ensure a fair trial.  I’ve been doing this work since 1997.  In that time, I have read the transcripts of hundreds of jury trials, including several murder trials, so I have a pretty good idea of why attorneys, especially defense attorneys, do what they do and what juries look for when they decide to convict or acquit someone.

On her blog this morning, Kelli Anne Busey quoted from another article about the mini-opening statements in Andrade’s trial, noting that the prosecutor told the jurors that, contrary to Andrade’s claim, there would be no evidence that he had sexual contact with Angie before the murder.  Kelli commented, if the prosecutor can make that claim stick, the defense is going to have a very difficult time.  Why?  Because without proof that Andrade had sex (of whatever kind) with Angie without knowing she was trans, his “trans panic” defense falls apart, and his crime is revealed as the bald-faced hate crime that it really is.  In other words, Andrade didn’t kill Angie because he was deceived into having sex with a “man,” but simply because he hates trans people and believes, as he told his sister in a recorded phone call from the jail, that “gay things need to die.”

What’s even more significant for me, however, is the statement by Andrade’s attorney that he is going to testify: “Everything happened so fast, it was over before it started. He couldn’t control it. Those are the words you’re going to hear from Mr. Andrade.”  Of course, that’s the only way Andrade can hope to prove his alleged “trans panic” defense (who else can prove what was going through his head as he bludgeoned Angie to death?)  and thus convince the jury to reduce his conviction to 2nd degree murder or manslaughter, but it’s a very risky move.  Andrade’s decision to testify (very few defendants do) means that the prosecutor gets to cross-examine him in excruciating detail about when he first knew or suspected that Angie was trans, which could well cook his goose right there.  In addition, the prosecutor will get to hammer home the evidence that, after first beating her unconscious, Andrade went back and made sure Angie was dead after she tried to sit up. That makes it first degree (premeditated) murder without question, regardless of how outraged he may have been when he first hit her.

Lastly, and perhaps most importantly, is what happens if Andrade contradicts any of the things he told the police, including the things he said during the parts of his confession that the judge threw out. For example, what if Andrade tells the jury that Angie was dead after he beat her the first time but told the police he went back a second time to finish the job because he saw her moving?  If that happens, the judge will allow the prosecutor to bring back in everything that he previously threw out, including any audio or video tape of his police interview, to prove that Andrade is lying to save his ass.  Let me tell you, when a jury hears a defendant say one thing to them face-to-face from the witness stand, and then gets to hear (and, if the interview was videotaped, see) him say the opposite to the police right after he was arrested and before he had a chance to plan out his story, it is absolutely devastating and virtually guarantees a conviction.  From where I sit, it looks like, unless something changes very drastically over the course of his trial, Andrade is about to cook his own goose.  It couldn’t happen to a nicer guy!

When Does “Sex” Matter to Trans People

Attorney and law professor Jillian Weiss has posted another interesting article over on Bilerico.  This one concerns the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which held that laws making sex between consenting adults of the same sex a crime (aka “sodomy” laws) are unconstitutional, and whether and how that decision can be used to, in her words, “loosen the chokehold that the law has on transgender people.”  One of the commenters there asked if she could write another article on the definition of “sex” in Title VII and EEO policies banning “sex” discrimination, as applied to trans people.  Rather than wait for Dr. Weiss’ response, I decided to weigh in on this topic.  Here is my response:

E.T., I’ll take a stab at responding to your second question regarding the definition of “sex.”

It’s important to distinguish 2 different situations in which the legal definition of the word “sex” impacts trans people: first, laws that ban discrimination on the basis of sex in employment, housing, public accommodations, etc.; and second, the right of trans people to access legal privileges, e.g., marriage (in most states), that are restricted on the basis of a person’s sex. The second group could also encompass the right of trans people to use services or facilities, e.g., public restrooms, access to which is restricted on the basis of a person’s sex. (I say “could encompass” since, in most places, contrary to public opinion, there are no laws that say a man can’t use a women’s restroom, or vice versa. In other words, sex segregation of restrooms is largely a matter of social convention, not law, although trespassing and disturbing the peace laws are sometimes used (unjustly, in my opinion) to enforce those conventions.)

Where access to a legal privilege, service or facility is restricted based on sex, determining a trans person’s right of access requires a determination of what “sex” the person is, since sex-based segregation is based on a strict binary division between male or female, where no ambiguity is allowed. Answering that question, in turn, raises myriad complicated questions regarding how a person’s sex is determined. For example, is it strictly biological or chromosomal, or does it include a person’s gender identity or expression? If biological, do we look only at the configuration of the person’s genitals or genes at birth, or do we, also or instead, give effect to the person’s genital configuration after surgery? Can a person’s sex be legally changed? And what do we do about intersex people whose chromosomes, genitalia, internal organs, etc. are not clearly male or female?

Most, but not all, of the cases addressing this question in the context of the right of a trans person to marry have ignored the effects of surgery and attempts to “legally” change the person’s sex by amending her/his birth certificate. In other words, they were decided based on the basic premise espoused by many of our opponents that “once a man, always a man,” and vice versa.

Fortunately, most, but not all, of the recent cases involving the definition of “sex” for purposes of determining a trans person’s right to protection under laws banning sex discrimination have avoided this difficulty. They do so by saying that it doesn’t matter what sex a person is, i.e., whether the person is male, female, both or neither. Instead, what matters is whether the person was treated differently because of some sex-related characteristic. This trend started with the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins in 1988. In that case, the court said that discrimination based on sex under Title VII, the federal law banning sex, race and other types of discrimination in employment, includes being treated differently because the person doesn’t conform to sex-based stereotypes regarding dress, mannerisms, etc. Thus, the Supreme Court held that it was illegal for Price Waterhouse to refuse to make Ann Hopkins a partner basically because she was too “butch.” (The court, of course, didn’t use that term and there is no indication that I know of that Ms. Hopkins was lesbian.)

This trend, IMO, reached its logical endpoint with last fall’s federal trial court decision in Diane Schroer’s Title VII sex discrimination suit against the Library of Congress. Schroer v. Billington. In that case, the court found that the Library violated Title VII by discriminating against Schroer because she was changing her sex, not because she was male, female, both or neither.

Thus, in the context of discrimination laws or policies that you were talking about, it isn’t necessary to define a person’s sex as male or female, etc. It is only necessary to tackle that question when the trans person is seeking access to a legal privilege like marriage, or a service or facility, like a restroom, where access is restricted based on whether the person is male or female. The lack of a coherent and consistent definition of a person’s sex and/or methods for legally changing one’s sex that are actually recognized by the courts are the source of most, if not, all, of the ongoing confusion regarding the rights of trans people.

In the case of marriage, I think the best solution to that confusion is to remove all sex or gender based restrictions, in other words, to legalize same sex marriage. That’s why the battle for marriage equality is important to the trans community, contrary to the opinions of some. With respect to access to restrooms and other sex-segregated facilities, I think the best solution is to provide for personal privacy, e.g., the stalls in women’s restrooms, and allow access based on the person’s gender expression. In other words, if you’re presenting as a woman, you use a women’s restroom, and vice versa, regardless of your physical sex. Any other solution quickly becomes too complex and confusing to administer and enforce. Implementing that solution will, however, require the American public to just “get over” their hang-ups about the sex or gender of the person in the stall next to them.

UPDATE

Some of you may also be interested in this post from last year on how laws that ban sex discrimination in access to public accommodations relate to the right of trans people to public restrooms.

eQualityGiving’s Omnibus Equality Bill Proposal

eQualityGiving is proposing a bill to correct the unequal treatment of LGBT people in all areas of federal law – employment, housing and public accommodations discrimination, the American with Disabilities Act, DOMA, DADT, etc. Read about (and download) it here. Whether or not a comprehensive bill like this is ever introduced or enacted, I think it serves a useful purpose in uniting the debate on the many ways in which we are treated unequally and helping to ensure that the changes we seek are consistent.

What do you think?

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FYI, here is eQualityGiving’s email announcing its proposal:

INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT

Dear Abigail,

What if we asked for legal equality all at once in one comprehensive omnibus bill?

THE BLUEPRINT FOR LGBT EQUALITY

What would a bill for total legal equality look like? We asked attorney Karen Doering, a very experienced and savvy civil rights attorney, to prepare such a bill. It was presented and discussed on our listserv, which includes many of the major donors to the movement and the executive directors of all the major LGBTQ organizations.

We believe now is the time to introduce an omnibus bill.

We have prepared a section of our website with all the information about the proposed bill:
www.eQualityGiving.org/Blueprint-for-LGBT-Equality

There you can read the actual text of the bill and read the answers to the frequently asked questions. There is also a section reviewing the status of the incremental bills currently proposed. You can also post your comments directly on the site.

WHAT THE OMNIBUS BILL COVERS

1. Employment
2. Housing
3. Public accommodation
4. Public facilities
5. Credit
6. Federally funded programs and activities
7. Education
8. Disability
9. Civil marriage
10. Hate crimes
11. Armed forces
12. Immigration

INCREMENTALISM vs. OMNIBUS BILL

Some people think that an omnibus bill is too unrealistic to pursue because Congress functions in a very complex way. But the country voted for a new leader who promised major changes to the way our government functions.

We have tried incrementalism at the federal level for LGBT equality for 35 years without any results. Now is the best time to capitalize on the energy of new leadership and propose what we think change looks like.

As the Rev. Dr. Martin Luther King said:

“A right delayed is a right denied.”

Asking for an omnibus equality bill does not mean that we need to pursue it at the expense of incremental bills. Both approaches can be used simultaneously, and we encourage this strategy.

An Omnibus bill has two major benefits:

> It points out in clear legal terms all the areas in which we are not treated equally under the law. If we ask for less, we will certainly get less.

> An Omnibus bill provides a standard to which incremental victories can be compared. We may discover, for example, that even the trans-inclusive ENDA introduced in March 2007 still did not provide the same level of protections in employment that other groups receive.

SAY WHAT YOU THINK

If you believe that, in addition to incremental bills, we should also push for an Omnibus Equality Bill, tell your member of Congress, talk to your friends, and write about it on the site. All the info about the bill is here:

www.eQualityGiving.org/Blueprint-for-LGBT-Equality

For many months we have been preparing this Omnibus Equality Bill. Join us to push for it, so that we can achieve LGBT legal equality faster.

Best regards,

Juan Ahonen-Jover, Ph.D.
Ken Ahonen-Jover, M.D.
Founders, eQualityGiving

P.S. Please forward this alert to others who could be interested.

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UPDATE – 3/24/09

Recently, there has been some discussion in the blogosphere about the impact of what some believe to be a narrower definition of “gender identity” in the federal Hate Crimes Bill (HR1592) from 2007, when compared to the definition of that term in the gender-inclusive ENDA (HR2015) from that same year.  (The Hate Crimes Bill defined “gender identity” as “actual or perceived gender-related characteristics,” while the inclusive version of ENDA defines it to mean “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.  To learn about this discussion, read Kathy Padilla’s recent posts on The Bilerico Project here and here.)  In a comment I left on eQualityGiving’s website, I pointed out this difference and the risk of unnecessary litigation over whether the definitions are intended to have different meanings.  In response, eQualityGiving has amended their Omnibus Bill to include the same definition in all its provisions, including hate crimes.  The revised version of the bill, dated March 21, 2009, is available for download on eQualityGiving’s website.

In my original post, I failed to note one huge advantage eQualityGiving’s Omnibus Bill has over even the inclusive version of ENDA.  Rather than enacting a separate statute with a broader exemption for religious organizations and other provisions that differ from existing civil rights law, eQualityGiving’s bill would simply amend Title VII of the Civil Rights Act of 1964 (the federal law banning sex, race and other discrimination in employment) by adding “sexual orientation” and “gender identity” to its terms.  As Karen Doering, the drafter of the Omnibus Bill, explains on the FAQ page for the bill, this approach has substantial advantages over ENDA.  Having worked as an investigator of discrimination claims under Title VII and being familiar with its terms and, especially, how it has been interpreted by the courts, I see this as a major improvement over current proposals.

The Sun in Drag

Somehow, this poem seemed particularly appropriate when I read it this morning.

The Sun in Drag

You are the Sun in Drag.

You are God[dess] hiding from yourself.

Remove all the “mine” – that is the veil.

Why ever worry about

Anything?

Listen to what your friend Hafiz

Knows for certain:

The appearance of this world is a Magi’s brilliant trick, though its affairs are

Nothing into nothing.

You are a divine elephant with amnesia

Trying to live in an ant

Hole.

Sweetheart, O sweetheart

You are God[dess] in

Drag!

– The Gift: Poems by Hafiz, The Great Sufi Master, Translations by Daniel Landinsky, p. 252

Prescott Webcam

If you want to keep up on the goings-on in downtown Prescott, Arizona, or just get a flavor of where I live, this is the ticket right here.  This webcam is on the roof of a building directly North of the Courthouse Square, where much of my business in conducted. I live just a few blocks from here up the hill you see when the cam turns to the East (i.e., to the left).