Recently, the Center for American Progress published an FAQ on ENDA (the Employment Non-Discrimination Act). Although generally accurate and informative, this article provides a misleading impression of the scope of ENDA’s provisions concerning access to restrooms and other sex-segregated facilities.

In the hopes of correcting this error, I have emailed CAP. I will update this post when I receive a response.  Here’s what I told them:

As I’m sure you know, the most contentious issue surrounding anti-discrimination protections for trans people is access to restrooms and other sex-segregated facilities. Therefore, I was disturbed to see that CAP’s FAQ misinterprets ENDA’s provisions on that issue. In response to the question, “What does ENDA require of employers in terms of restroom facilities and access?,” the article states:

“Under ENDA, employees would only be required to provide employees with ‘reasonable access’ to adequate restroom, shower, and dressing facilities consistent with an employee’s gender identity. Employers who deny employees access to a shared facility would not be in violation of ENDA as long as they provide a viable alternative. Nothing in the proposed bill requires employers to construct new or additional facilities.”

There are two primary problems with this response. First, ENDA never mention restrooms. Consequently, ENDA’s gender identity non-discrimination requirements apply to access to restroom facilities in the same way they do to all other “terms and conditions” of employment. Thus, there is no exemption for employers who, for whatever reason, decide to bar a trans woman from the same restrooms that other women use, or vice versa for trans men.

Second, section 8(a)(3) of ENDA, from which the “reasonable access” language in the above quote is taken, applies only to “shared shower or dressing facilities in which being seen unclothed is unavoidable.” (Emphasis added.) That section allows employers to bar trans employees from such facilities (but not facilities where being seen unclothed is avoidable), provided that the employer provides separate shower or dressing facilities that are consistent with the employee’s gender identity at the time of being hired or as specified in a later notice to the employer.

By implying that ENDA provides some sort of exemption regarding access to restrooms, and failing to note the very limited nature of the exemption for shower and dressing  facilities, the response in the FAQ misleads employers, trans people and the public in ways that I believe can unnecessarily complicate the debate on non-discrimination protections for trans people. Accuracy in describing what ENDA does and doesn’t do is essential in informing the public debate on these issues. Therefore, I hope you agree that a revision of the portion of FAQ dealing with these issues is necessary.

For my interpretation of how ENDA would apply to sex-segregated facilities, see Why the “Transsexual” vs. “Transgender” Debate Is Irrelevant to the Fight for Equal Rights.

UPDATE: Apparently, in response to my email, CAP has edited the section on facility access.  It now reads:

Q. What does ENDA require of employers in terms of facilities and access?

Under ENDA, employees would only be required to provide employees with “reasonable access” to adequate shower and dressing facilities consistent with an employee’s gender identity. Employers who deny employees access to a shared facility would not be in violation of ENDA as long as they provide a viable alternative. Nothing in the proposed bill requires employers to construct new or additional facilities.

As you can see, all they’ve done is delete the word “restroom.” The second error, and the resulting misimpression that employers can exclude trans people from all shared showers & dressing rooms with impunity, remains. Nice try, CAP, but you still didn’t get it right.

In thinking about laws legalizing same-sex marriage, it’s always been my understanding that the goal is to make the sex or gender of the partners irrelevant, in other words, to allow anyone to marry anyone else without regard to what sex or gender they are. The text of the New York Marriage Equality Act passed and signed into law yesterday reflects this principle.

The Act states that its purpose is to “formally recognize[] otherwise-valid marriages without regard to whether the parties are of the same or different sex.” In addition, the legislature’s intent in passing the act is to ensure “that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage … be construed in a gender-neutral manner….” (Sec. 2.)  To carry out these purposes, the operative provisions of the Act (Sec. 3) state:

A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.

No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage … shall differ based on the parties to the marriage being or having been of the same sex[,] rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all sources of law.

It’s true that the phrase “the same or different sex” could be interpreted as referring only to the two binary sexes, i.e., only to male and female. Any such interpretation, however, is contradicted by the statement that “all gender-specific language or terms shall be construed in a gender-neutral manner.” “Gender-neutral” means “without gender,” not just male or female, or masculine or feminine.  The reference to parties who are “of the same sex[,] rather than a different sex,” rather than the different, or opposite, sex, also contradicts any claim that the Act was only intended to allow people who are either male or female to marry and deny that right to intersex people who may be neither or both sexes.

Finally, as the Supreme Court declared in Loving v. Virginia, the right to marry is a fundamental right. Therefore, any statute barring intersex people from marrying would likely be unconstitutional. In keeping with the separation of powers between the three branches of government, courts always attempt to carry out the legislature’s will by avoiding any interpretation of a statute that would render it unconstitutional. Under this principle, even if the language of the New York Marriage Equality Act could be interpreted as excluding intersex people, any court addressing that issue will strive to avoid finding the Act to be unconstitutional by adopting the equally reasonable interpretation that the legislature intended that everyone should have the right to marry anyone, regardless of their sex or gender (or any combination or lack thereof).

Thus, given both the language of the Act, and the potential unconstitutionality of any other interpretation, intersex people can be confident that, like those who fall within the sex/gender binary, they can marry whoever they want in the State of New York without regard to sex or gender.

NOTES

1. In most cases, when one section of a statute is found to be unconstitutional, the courts will “sever” that provision and allow the remainder of the statute to go into effect.  However, the religious exemptions added to the Act on Friday, which won over the three Republican votes needed to pass the Act in the Senate, also included a “poison pill” provision to discourage anyone from challenging those exemptions. Section 3 of those amendments states that, if any part of the Act is held to be unconstitutional, the entire statute is invalid. Given this additional incentive, courts are sure to do everything possible to ensure that the entire Act is interpreted to be constitutional, including interpreting it to give intersex people the same right to marry as everyone else.
2. I find it interesting that whoever drafted the Act was evidently aware of questions regarding the validity of an otherwise valid opposite-sex marriage when one of the partners transitions from male to female, or female to male.  It appears that the statement that no marriage shall be treated differently “based on the parties to the marriage … having been of the same sex[,] rather than a different sex” is designed specifically to remove any lingering doubts about that question.

I certainly have my own opinion on the “transsexual” vs. “transgender” debate that has ignited many a flame war on the internet over the last few months between those who want to separate our community based on those who have had or, at least, want to have, SRS, from everyone else, but I’m not going to express that here. Instead, I’m going to take a position that I’ve never seen expressed by anyone else, although some have come close. My position comes from my background as an attorney and my understanding of how anti-discrimination laws are written and are intended to operate.

Here’s what I know to be true: the dispute about who is transsexual and who isn’t is irrelevant to the fight for protections for transsexual, transgender, genderqueer and every other gender variant or gender nonconforming person in this country. Why? Because of how anti-discrimination laws are written for both practical and constitutional reasons.

Why anti-discrimination statutes don’t use terms like “transsexual” or “transgender”

If you look at federal or state anti-discrimination laws, you’ll see something very interesting. Although the primary purpose of the Civil Rights Act of 1964 (including, Title VII, the federal ban on sex, race and other discrimination in employment) was to end discrimination against African-Americans, if you read it, you will see that nowhere does it say that it is illegal to discriminate against African-Americans. Instead, it says that it’s illegal to discriminate against anyone on the basis of race. There are two reasons for this approach.

First, using terms like African-American, Hispanic, Asian-Pacific Islander or Native American would lead to difficult, if not impossible, problems of determining in any given situation who fits into the relevant category. For example, I have a friend who identifies as both African-American and Native American. However, upon seeing her, many people may doubt that she is anything but “white.” So, where should the cut-off be? Should it 1/8 or 1/64 native or African-American blood, which is the cut-off used by some Native American tribes for tribal membership? Should it be how the person self-identifies? Or should it be whatever a court or jury, employer or shelter operator decides a particular person is? Our courts are already bogged down enough; we don’t need to compound that problem by introducing such difficult, and, ultimately, unnecessary, issues.

Using such vague categories leads us to the second reason why such categories aren’t used in anti-discrimination laws: statutes that are so ambiguous that they allow for arbitrary distinctions and enforcement are “void for vagueness” under the Due Process Clauses of state and federal constitutions. In other words, if whether one person is or isn’t protected depends on distinctions that can’t be made on any sort of objective basis, so that different people may reasonably interpret and apply the law in different ways, the statute is void and unenforceable.

In addition, there is another constitutional problem with using terms like African-American in anti-discrimination laws. If a statute protects only people who fall into one racial category, but not another, what you have done is enshrine in the law the very racial discrimination that you are trying to eliminate. That, in turn, makes the statute unconstitutional as a violation of equal protection under both state and federal constitutions. Therefore, for a statute meant to eliminate racial discrimination to be constitutional, you have to ban all racial discrimination, not just discrimination against the particular minority group or groups you are most concerned about protecting. That’s why the Civil Rights Act of 1964 and other federal, state and local anti-discrimination laws make it illegal to discriminate on the basis of “race,” not particular racial categories.   In other words, by protecting everyone against such discrimination, you avoid claims that the statue violates equal protection.  The other benefit of that approach relates to the first problem discussed above. By using broad categories like “race,” you eliminate the need to decide what race someone belongs to.

For the same constitutional and practical reasons, the 1964 Civil Rights Act and other anti-discrimination laws don’t ban discrimination against women; instead, they ban discrimination against anyone, male or female, man or woman, based on “sex.”

Lastly, and, perhaps, most importantly, this approach fulfills one of the most important founding principles of our county: the belief in “equal justice for all,” not just the rich, not just whites, and not just men, and not just those who are poor, black or female.

How does this apply to protections for trans people?

What does all this mean when we start talking about protecting members of the trans community (however broadly or narrowly you want to define that community) from discrimination because of who we are? If anti-discrimination statutes intended to protect our community used terminology like “transsexual” or “transgender,” whenever any of us tried to invoke those protections, we would find ourselves in the same endless discussions about what those terms mean and who belongs in which category that have been taking place over the last several months, and which I believe are highly damaging to the goal of ensuring that we can all live our lives as who we are.  Any such statute would, thus, be unconstitutional as both “void for vagueness” and a violation of equal protection. Why equal protection? Because everyone has a gender, gender identity and gender expression. Therefore, everyone should be protected against discrimination on that basis, since none of those characteristics are relevant to whether a particular person can do a particular job or should be allowed to buy a house or rent an apartment, regardless of how they identify. (As for the problem of bathrooms and other sex-segregated facilities, see below.)

Consequently, when you look at the proposed Employment Nondiscrimination Act (ENDA) or any of the state or local statutes protecting our community from discrimination, you’ll see that most of them ban discrimination based on “gender identity” or “gender identity and expression,” not based on whether someone is “transsexual” or “transgender.” (A few subsume those categories under the definition of “sexual orientation” and then prohibit discrimination based on that term.)  Under this approach, everyone is protected against discrimination based on their gender identity (i.e., the gender they identify as internally), regardless of whether or how that identity is expressed outwardly, and against discrimination based on their appearance, mannerisms and other behavior that are interpreted by others as an expression of gender, regardless of the person’s gender identity. In other words, everyone has a gender identity and a gender expression; therefore, everyone is protected against discrimination on that basis.  Thus, the housewife who is too harried with housework and delivering kids to and from school to put on makeup or a dress can’t be kicked out of the grocery store for wearing her husband’s flannel shirt and buzz cutting her hair because she doesn’t have time to care for it (or simply likes it that way.)  Similarly, the straight man who, for whatever reason, talks with a lisp or has what others see as effeminate gestures, and the straight woman who has a square jaw, large hands and feet and facial hair, are protected from discrimination simply because someone decides they’re not masculine or feminine enough to qualify as a man or a woman. Those people, too, suffer the effects of prejudice deriving from our society’s gender norms and deserve protection against discrimination just as much as trans people.

(One of the most famous cases relevant to protecting trans people against discrimination involved a cisgender woman, not a trans woman. In that case – Price Waterhouse v. Hopkins, Ann Hopkins was a CPA working for the accounting firm who was eligible to become a partner. She was denied partnership, however, because some of the existing partners thought she was too aggressive for a woman, and needed to dress and act more femininely. When she got to the U.S. Supreme Court, the Court held that Price Waterhouse had violated the ban on sex discrimination under Title VII by discriminating against her because she failed to comply with the “sex stereotypes” held by the existing partners for how women should look and act. This is the legal theory that has since been applied to protect trans people against discrimination under state and federal statutes that ban sex discrimination, even though they don’t explicitly bar discrimination based on gender identity or expression. The best and most recent example of this is Diane Schroer’s decisive victory over the Library of Congress.)

But what about bathrooms?

But what about sex-segregated facilities like bathrooms, locker rooms and showers? Personally, I wish we could do away with such segregation and people could just get over their discomfort and fear concerning their own and other people’s bodies and bodily functions. That’s not likely to happen in my lifetime, however, and sex-segregated facilities are going to continue to exist. So what do we do?

When we are challenged for entering a restroom, it’s because someone doesn’t think we look feminine or masculine enough, or, if you wish, because we look too masculine or feminine, for the sex that restroom is designated for. When those who oppose trans women’s use of women’s restrooms are asked why, they invariably respond with fears about men in the women’s room and the risk of rape or other sexual predation. When pressed, they will usually expand that by explaining that they don’t want anyone with a penis in the women’s room. But, of course, no one knows what genitalia any of us, cis or trans, carries when we use such spaces (at least, not in the absence of criminal activity or a close, personal relationship). Instead, people decide who is a man or a woman based on their perception of the other’s gender expression (clothes, makeup, mannerisms, etc.) and visible portions of the person’s body (face, hands, feet, etc.), and then make the assumption that this person must have a penis or a vagina and, therefore, is a man or a woman. It is this process that leads to masculine women and effeminate men, whether gay or straight, being confronted, ejected and even arrested for using a restroom for which, if anatomy is the determining factor, they are certainly qualified to use. It is also this process that results in post-op trans women, and, less frequently, trans men, being subjected to the same treatment even though a “panty check” would reveal the same genitalia as the intended users of that space. Finally, it is because this process results in even post-op trans people being excluded from sex-segregated facilities to which their genitalia should give them access that limiting trans people’s access to such facilities based on whether they have had genital surgery, or plan to do so at some point in the future, is unworkable. (It also grants doctors, psychiatrists, therapists and/or the government the power to determine who is and is not “woman” or “man” enough to use such facilities, a power I am not willing to cede to anyone.)

So, again, what do we do about sex-segregated facilities?  Here’s my proposal: If the statutes we pass bar discrimination based on gender identity and/or expression, then it is unlawful to deny someone access to a bathroom, for example, simply because someone thinks that person’s gender expression isn’t masculine or feminine enough for that space. In other words, if someone is presenting as a woman, she has the right to use the women’s room, and vice versa for men’s rooms, regardless of whether zie is post-op, pre-op or non-op, and regardless of whether zie identifies as transsexual, transgender, genderqueer, crossdresser, drag queen or whatever other gender category zie cares to claim. Since, barring illegal activity or a close, personal relationship, no one knows what’s in another person’s pants, if it’s wrong to exclude a butch, cisgender woman from a women’s room, then it’s equally wrong to exclude anyone expressing hir gender as a woman from that same space. In either case, the exclusion would be based not on the person’s actual anatomy, but on someone else’s assumptions and prejudice about who is “really” a woman.  Our country has always opposed unequal treatment based on personal assumptions or prejudices about who is and isn’t entitled to the benefits of our society, and I see no reason that we should deviate from that principle when it comes to sex-segregated facilities. (Of course, the same arguments apply to men’s rooms and people who present as men.)

Okay, you say, that takes care of bathrooms. What about showers and locker rooms where nudity sometimes takes place?  Here, I believe the best solution is that proposed in ENDA, since it gives proper respect both to concerns about personal privacy and to each individual’s gender identity. As introduced, ENDA contains a specific exclusion that provides that an employer’s “denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable” would not violate that statute, “provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity” at the time the person was hired or as established by a later notice to the employer “that the employee has undergone or is undergoing gender transition.” (ENDA, Sec.8(a)(3); my italics.) In other words, employers could continue to maintain sex-segregated locker rooms and showers. However, in determining who is allowed access to the men’s or women’s facilities, the employer must recognize the employee’s announced gender identity with the sole exception that, where nudity is “unavoidable,” the employer may require someone whose presence may make other employees uncomfortable to use separate facilities, but only if those separate facilities conform to the person’s gender identity. (In other words, an employer couldn’t make a trans woman use the men’s locker room, or vice versa. Note also, that this could be applied to cisgender, not just trans, men and women. When butch women and effeminate men start getting excluded from the men’s and women’s locker rooms, I suspect that we’ll win over quite a few allies to the idea that segregation based on someone else’s perception of our gender expression is patently ridiculous.)

(Some people reading this may wonder how this principle applies with respect to things like dress codes. Basically, if an employee is hired as a man, ENDA allows the employer to require him to conform to the dress code for men until such time as the employee informs the employer that zie is transitioning to female, or vice versa. (Sec. 8(a)(5).) After the employee transitions to living full time in hir affirmed gender, zie must then conform to the dress code for that gender. This scheme is actually quite elegant and workable in practice. In addition, it has the advantage of not requiring the transitioning employee to prove to the employer that zie is “really” a woman or vice versa by providing a letter from a doctor or therapist, or proving zie has undergone SRS, hormone therapy or any other medical treatment. Instead, it allows the employee complete freedom to work as the person zie knows hirself to be, without interference or second-guessing by anyone else.)

So, there it is. It isn’t necessary to determine whether someone is transsexual, transgender or anything else to provide legal protections for everyone, cis or trans, against arbitrary discrimination because zie doesn’t fit someone else’s concepts of who is “really” a woman or a man, or to determine who can use sex-segregated bathrooms and other facilities. Therefore, I, for one, intend to ignore that debate and get on with the business of enacting fair and just legal protections that allow all of us to simply be who we are.

Cross-posted on Facebook, Pam’s House Blend and Questioning Transphobia.

“Jorge Steven’s murder was an eye-opener for a lot of folks on the island and many people who either didn’t think or want to believe that homophobia is pretty much alive and affecting so many people in Puerto Rico,” said Pedro Julio Serrano of the National Gay & Lesbian Task Force. “I have never seen such a wide array of support and tangible solidarity in Puerto Rico.”

(All emphasis in the quotes from the article are mine.)  Of course, that didn’t stop Pedro or others from invoking the “T” when it serves their purposes:

“The Jorge Steven López Mercado case has allowed LGBT activists and organizations to shed light to a long-time problem of violent crimes for LGBT individuals in Puerto Rico and the overall United States,” said Jorge Cestou, the Chicago-based co-chair of Unid@s, a national Latino LGBT rights organization.

* * *

Illinois state Rep. María “Toni” Berrios [D-Chicago,] who also traveled to the island with the delegation, conceded she remains unsure whether anything has actually changed in Puerto Rico since the teenager’s death. She added, however, it galvanized LGBT Puerto Ricans.  “Jorge Steven López Mercado’s murder brought together all of the LGBT groups and has made them work even closer together to try to combat hate crimes towards their community,” said Berrios.

* * *

[Ada Conde Vidal, president of the Fundación de Derechos Humanos (Human Rights Foundation,)] was instrumental in the addition of sexual orientation and gender identity and expression to the territory’s hate crimes law in 2002, but  authorities have rarely implemented it.

* * *

[New York City Councilmember Melissa] Mark-Viverito, who was born in San Juan, told EDGE there remains “qu[i]te a lot of work to be done” in Puerto Rico, but Serrano stressed López’s murder changed the conversation about LGBT rights on the island.  “It’s no more a debate of whether there is homophobia,” he said. “Now the debate is how we are going to stop it; how are we going to end it. People are more aware of the importance of respecting everyone; regardless of their sexual orientation or gender identity.”

It seems that the idea that gay men may be feminine in some way is so distasteful that, while it’s OK to acknowledge that gay men exist in Puerto Rico, the idea that they may not be as “macho” as every other man must be avoided at all costs.  That, of course, does not stop anyone involved from claiming support from the “T” portion of the LGBT community or showing how inclusive they are by mentioning “gender identity” protections in Puerto Rican law. What blatant hypocrisy!

And, yes, it really pisses me off.

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 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!

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/

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.

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!