ABIGAIL JENSEN FROM TUSCON, ARIZONA ANNOUNCED TO THE FIRST EVER ‘TRANS 100’ LIST

We Happy Trans, This is H.O.W., Chicago House and GLAAD Announce Inaugural List Focused on Positive Work Being Accomplished by Trans People Nationwide

 April 9, 2013 – Today, Abigail (Abby) Jensen of Tucson, Arizona was announced as an honoree of the Trans 100, an inaugural overview of the breadth and diversity of work being done in, by, and for the transgender community across the United States. The 2013 Trans 100 list, created by We Happy Trans, a website that celebrates the positive experiences of transgender people, and This is H.O.W., a Phoenix based nonprofit organization dedicated to the betterment of the lives of trans people, was presented at an event sponsored by Chicago House, GLAAD, the Pierce Family Foundation, Orbitz.com, and KOKUMOMEDIA. The first effort of its kind, the list intends to shift the coverage of trans issues by focusing on the positive work being accomplished, and providing visibility to those typically underrepresented.

For a full list of the 2013 Trans 100 visit www.WeHappyTrans.com, or www.facebook.com/Trans100.

Abby is a transgender woman, experienced attorney and activist. Currently, she is closely involved in fighting bills introduced in Arizona this year that would not just override some of the limited protections for trans people available in Tucson, Phoenix and Flagstaff, but go beyond that to actively encourage discrimination and harassment of trans and other gender nonconforming people in Arizona. You can often find her posting about current social justice issues on Facebook and on Twitter @Arizona_Abby.

Asked about her selection, Abby said, “I am honored to appear on the Trans 100 list with so many amazing and creative people, all of whom are working to better the lives of our community. I look forward to renewing my friendships and working relationships with those I already know and getting to know those I have yet to meet.”

The list began as an idea by This Is H.O.W. Executive Director Toni D’Orsay, and was then developed in partnership with Jen Richards of We Happy Trans. The project received over 500 nominations in December 2012, with over 360 individuals recommended for inclusion.

A launch event for the Trans 100 list took place at Mayne Stage in Chicago on International Transgender Day of Visibility, a day which aims to bring attention to the accomplishments of transgender people around the world.

“The only sustainable self-interest is that which extends the sense of self to include the whole,” said Jen Richards at the Trans 100 launch event. “Look around: women, men, people of color, genderqueer kids, crossdressers, showgirls, sex workers, academics, activists, artists, and allies. We are all one community.”

“The value of the work that is represented by the 100 people on this list is immeasurable,” said Executive Director of This Is H.O.W., Antonia D’orsay, about the Trans 100. “These people demonstrate the diversity, the determination, and the incredible triumph of spirit that informs all trans people, no matter where they are. This is just a glimpse of what trans people can accomplish.”

“The Trans 100 will bring much-needed visibility to the critical, grassroots work that trans people have been doing in communities across the country for years,” said GLAAD’s Wilson Cruz. “While media coverage so often misses the mark on accurate portrayals of trans people, the Trans 100 is changing the game by sharing the inspiring and diverse stories behind trans advocacy.”

KOKUMO, an artist, activist, and African American transgender woman, hosted the event. Two accomplished transgender musicians – folk-rock songwriter Namoli Brennet, and singer Joe Stevens of the West Coast-based Folk/Roots group Coyote Grace – gave live performances.

Jen Richards partnered with Chicago House and KOKUMOMEDIA to produce Chicago’s Trans 100 launch event. GLAAD served as Inaugural Sponsor, with additional support from the Pierce Family Foundation, Orbitz.com, Progress Printing, and Dr. Graphx. Both Chicago House’s TransLife Project and This is H.O.W. provide direct services to transgender people experiencing homelessness, unemployment, violence, health disparities, and HIV infection. KOKUMOMEDIA uses film, music, and literature to provide to create and generate realistic depictions of transgender, gender non-conforming, and intersex (TGI) people of color.

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About We Happy Trans: WeHappyTrans.com was launched in early in 2012 in response to the lack of positive depictions of trans people in the media, and the absence of an online space that focused on the positive aspects of the trans experience. For more information, please visit www.wehappytrans.com or connect with We Happy Trans on Facebook.

About This is H.O.W.: This Is H.O.W. Inc. is a 501c(3) non-profit organization dedicated to the betterment of the lives of Trans (transsexual, transgender, and gender variant) persons experiencing crisis situations such as homelessness, substance abuse, familial abuse, and transition related difficulties. For more information, please visit www.thisishow.org or connect with This is H.O.W. on Facebook and Twitter.

It’s a long story, but there has been controversy surrounding the ethical rule governing Arizona attorneys that prohibits bias or prejudice on the basis of race, religion, sex, etc. in the practice of law for several years now. (ER 8.4(d) and Comment 3.) As a member of the State Bar’s Committee on Sexual Orientation and Gender Identity (SOGI), we have been pushing to, among other things, expand the rule to add “gender expression” to the already existing categories of  “sexual orientation” and “gender identity” as a prohibited basis for discrimination. As anyone familiar with Arizona politics will understand, the more conservative elements of the Bar have opposed this move. In fact, their most recent move was to file a petition to completely gut the rule by, among other things, removing all listed grounds of discrimination.

To counter that proposal and, hopefully, put this controversy to rest once and for all, Ameilia Cramer, the current President of the State Bar (and an out lesbian), appointed a task force representing all sides of the controversy to develop a recommendation to the Board on what should be done with this rule. The Task Force, by consensus, determined that the rule should be strengthened by clarifying what practices are prohibited, expanding the rule so it applies to attorneys’ work outside the courtroom, and by adding “gender expression.” That proposal was unanimously approved by the Bar’s Rules Committee, which reviews all proposals for changes to Arizona court rules, and recommended for adoption by the Board of Governors. (Adoption by the Board would result in the Bar filing a petition to the State Supreme Court to adopt the proposed rule; that court has the final say.)

Today was the Board’s first opportunity to review the proposed rule amendment. I, another trans woman attorney who was a member of the Task Force and a member of SOGI, and the chair of the SOGI committee (a gay man) appeared on behalf of the committee in support of the proposal. My role was to explain the concept of gender expression, since virtually no one on the Board has had any experience with trans people, let alone that unfamiliar phrase. In the short time I had, I provided a couple of examples from my own life of gender expression and how it has affected my perception and treatment by others. In addition, in response to a question from a member of the Board, I explained the differences between gender identity and gender expression and why including both is important.

Unfortunately, given the strong opposition by right-wing groups, including the Alliance Defending Freedom (fka the Alliance Defense Fund), which is based in Arizona, it appears likely that the Board will adopt the Task Force’s proposal but without “gender expression.” The Board won’t actually vote on the Task Force’s proposal until the next meeting on December 14. Amelia Cramer asked that I return for that meeting, so I will be definitely be there.

Although the inclusion of “gender expression” in the rule would serve an important educational function by informing attorneys that that type of discrimination is prohibited, omitting that phrase should not have any substantive effect on the scope of the rule, since discrimination based on gender expression, or failure to conform to gender stereotypes, is already prohibited as a type of sex discrimination under the line of cases culminating last April in the EEOC’s decision that Title VII’s ban on sex discrimination includes discrimination because someone is transgender (Macey v. Holder). In addition, I was assured by State Bar Counsel, who is responsible for filing disciplinary proceedings against attorneys who violate the rules of ethics, that the current rule is already interpreted to prohibit gender expression discrimination. Consequently, I, personally, do not oppose omission of the phrase “gender expression” from the amended rule. At the same time, I will strongly support efforts to insert that phrase into the rule in the next 1 or 2 years, after further education of Arizona attorneys on this issue, as discussed by Board during today’s meeting.

So, stay tuned and I’ll let you know what happens on December 14.

By the way, if the Task Force’s proposal was adopted in its original form, Arizona would become the first state to specifically include that phrase in the ethical rules governing attorneys, a remarkable feat if it comes to pass, given that, in recent years, the “firsts” Arizona has been known for have been on the extreme opposite end of the political spectrum.

Last weekend, Oprah had Marianne on her Super Soul Sunday program to talk about A Return to Love and how it helped change her life. You can watch the full episode here. I can’t think of a better way to spend 45 minutes of my life.

Blessings,
Abby

When I’m not online, I work as a criminal defense attorney doing appeals for defendants who have been convicted but cannot afford an attorney. I have doing this work since 1997. I say this not to brag, but to lend some credence to what I’m going to say here.

Part of my job is to parse the language of the statutes under which my client was convicted to see if they do, in fact, apply to my client’s conduct. Because of the long sentences at stake, many of my cases involve sex offenses, like the case in Sweden. One thing I’ve learned through that work, is that legislators are often very bad at drafting clear and comprehensive statutes. Another thing I’ve noticed is that, unless the state or country has undertaken a comprehensive program of updating their statutes, the statutes are likely to reflect many outmoded ideas, such as the belief that women cannot be raped by their husbands, something that was only corrected here in Arizona in the last few years.

My point is that, regardless of the judge’s personal feelings, it could well be that the applicable statute in this case was written in such a way that a conviction was simply impossible. For example, the statute here may have defined rape as only the nonconsensual penetration of a vagina. Without reading the exact statute the attacker was charged under, as well as the indictment stating his alleged crime, it is impossible to know whether the failure of Sweden’s criminal justice system in this case was the fault of the judge, the prosecutor or the legislature, or some combination of the three.

I too decry the result in this case, but I think we do our fight for equality a disservice when we automatically attribute outcomes we disagree with to the prejudice of the people involved without acknowledging the broader systemic failures at work. For better or for worse, the world is not always as black and white as we make it out to be, and not everyone we disagree with is our enemy.

One final comment: I’ve seen many posts, on Twitter and elsewhere, claiming that the attacker was set free based on the court’s ruling. In fact, despite the acquittal on the rape charge, the attacker was convicted of assault and is facing 4 years in prison. Presumably, the sentence for rape would have been much longer.

UPDATE: I finally found the Swedish rape statute in English, which makes clear that, contrary to my example, the defendant in this not case was not acquitted because the applicable statute only applies to forced intercourse with a woman by a man. Instead, a closer reading of The Local article above indicates that the defendant’s acquittal of rape was based on the concept of mistaken intent.

Under U.S., and, it appears, Swedish, law, to commit an attempted crime, e.g., an attempted rape, the defendant must have the specific intent to engage in conduct, which, if completed, would constitute that crime. Consequently, if the defendant is mistaken about the factual circumstances of the situation, it may be factually impossible for the defendant to have committed the crime with which s/he was charged, even though the defendant did intended to commit a crime. An example may help.

Imagine a defendant who wants to buy marijuana, but goes to the dealer who is trying to pass off oregano as pot. If the defendant is arrested before any transfer of money or the fake pot takes place, there has been no crime committed, not even the attempted possession of pot, because, even if the sale had been completed, the defendant would never have been in possession of pot. (Under Arizona law, where I practice, if the sale had been completed, the defendant would be guilty of attempted possession of pot, which is a lesser offense subject lesser penalties.)

So, how does that apply to the case of the Swedish cis man accused of trying to rape a trans woman? What may have happened is that the indictment specifically charged the defendant with attempting to rape a woman, but, for whatever reason, Swedish law does not recognize the victim as a woman. That would make it impossible to commit the type of rape the defendant was charged with, resulting in his acquittal on that charge. If that is, in fact, what happened, then the fault in this case lies with the prosecutor for charging the defendant with a crime he could never have committed, and with Swedish law for failing to recognize the victim as a woman. I still, however, see no basis for laying all the blame on the judge, as many have done.

Of course, without seeing an English translation of the indictment, it’s impossible to know whether this is, in fact, what happened. This update is merely my best guess, based on the articles I’ve read and my knowledge of U.S. law. Regardless of what actually happened, however, my point is to illustrate that life, especially when it comes to the law, is always much more complicated than it appears on the surface, and the dangers, and unfairness, of picking out the the most obvious target, accusing them of bigotry, and blaming them for problems that have much broader, systemic causes.

(My thanks to this article at Hypervocal for the link to the English version of Sweden’s rape law.)

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!