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

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

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

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

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

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

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

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

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

UPDATE

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

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

What do you think?

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

INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT

Dear Abigail,

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

THE BLUEPRINT FOR LGBT EQUALITY

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

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

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

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

WHAT THE OMNIBUS BILL COVERS

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

INCREMENTALISM vs. OMNIBUS BILL

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

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

As the Rev. Dr. Martin Luther King said:

“A right delayed is a right denied.”

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

An Omnibus bill has two major benefits:

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

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

SAY WHAT YOU THINK

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

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

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

Best regards,

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

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

********************************

UPDATE – 3/24/09

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

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

The Sun in Drag

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

The Sun in Drag

You are the Sun in Drag.

You are God[dess] hiding from yourself.

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

Why ever worry about

Anything?

Listen to what your friend Hafiz

Knows for certain:

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

Nothing into nothing.

You are a divine elephant with amnesia

Trying to live in an ant

Hole.

Sweetheart, O sweetheart

You are God[dess] in

Drag!

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

Prescott Webcam

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

I Have a Dream!

UPDATE: Once more, it is Martin Luther King, Jr. Day, the day on which we honor the memory of a great man who has proved so inspiring to so many of us.  I, too, have a dream and I pray each day for the day we can each can celebrate our diversity and our equality throughout this country and the world.

I originally posted this one year ago today [i.e., January 2008] on my old Yahoo 360 blog, while the wound from transgender people being excluded from ENDA by HRC and Barney Frank was very raw (it still is).

Today is the day in the United States that we celebrate the dream of equality and freedom that the Rev. Martin Luther, Jr. inspired in this country and, I hope, in the world. There is not much that any of us can add to his inspiring words, so I simply invite all of you to take 17 1/2 minutes of your day to listen to his words and to share his dream. (The video and the direct link to YouTube are below.) As you do so, you might want to note as I did, the following words, which seem so appropriate today as we struggle for recognition of equal rights for all transgender people against the argument that we need to wait our turn, that incrementalism is the path to freedom and justice for us:

“We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.” (Beginning @ 5:15 on the video below)

I followed up the next day with another post on Martin Luther King’s opposition to incrementalism and how he convinced LBJ that that was not the right approach:

As I noted yesterday, in his “I Have a Dream” speech, Martin Luther King, Jr. opposed applying “the tranquilizing drug of gradualism” to the civil rights struggle of that time.

More information about Dr. King’s opposition to that strategy came out last night on Bill Moyers’ Journal on PBS. During that program, Moyers recounted a previously unrevealed conversation between Dr. King and Lyndon Johnson that Moyers was privy to as a young presidential aide. (You can watch or read the transcript of this program here: http://www.pbs.org/moyers/journal/01182008/watch4.html.) Initially, LBJ tried to convince Dr. King to quell the demonstrations and other unrest that he and others were encouraging, in order to help Johnson convince the white supremacists in Congress to approve the Civil Rights Act of 1964. In keeping with his words at the Lincoln Memorial, King refused, saying that “his people had already waited too long. He talked about the murders and lynchings, the churches set on fire, children brutalized, the law defied, men and women humiliated, their lives exhausted, their hearts broken.” After listening to King, Johnson changed his mind and told King to “keep doing what you’re doing, and make it possible for me to do the right thing.” King did as asked, LBJ used his legendary arm-twisting skills in the Senate and one of the most important pieces of legislation of the last century, and one that today provides the only glimmer of hope for protection against employment discrimination for most trans women and men in the U.S., was passed.

So, Lyndon Johnson insisted on doing what was right at the time, rather than what he thought was practical or pragmatic given the resistance he faced. As civil rights pioneer and U.S. House of Representatives member John Lewis said on the floor of the House during the ENDA debate last November [2007], “It is always the right time to do the right thing.” Johnson, King and many others knew this in 1963 and 1964. Why is it that today so many people believe that this principle doesn’t apply to our own struggle for equal rights?

Today is still the time to do the right thing!  Perhaps, with Barack Obama’s inauguration tomorrow as our next President, we will finally begin to achieve the civil rights, the human rights, that we all deserve.

Misogyny by the roadside

You may have noticed that almost all of my posts are prompted by other people’s blogs. Oh, well, I’ll take my inspiration where I can get it.

This morning, I read Sonora Sage’s description of her recent roadside encounter with Mr. and Mrs. All-American while changing a flat tire. Although she appreciated Mr. All-American’s help loosening the lugnuts (once he figured out the “righty tighty, lefty loosey” part, that is), she didn’t appreciate his obvious belief that she could never have managed the job on her own, and Mrs. All-American’s simultaneous performance as the clueless female.  Nonetheless, Mr. All-American insisted on doing the job himself.  (Hmmm, where have I heard that before?  Oh, yeah, now, I remember.  That was the way I lived most of my life, having learned at my daddy’s knee — he never really sat me on his knee, but I wish he had  — that “if you want the job done right, do it yourself.”)  Anyway, Sonora’s story prompted memories of a somewhat similar experience of my own, which I left as a comment on her post and which I am sharing here (with a couple of minor edits) for those who might not find their way to her blog.

I encountered some of the same attitude myself awhile back, although, in my case, the roles were reversed: I was the (would-be) rescuer, Mr. and Mrs. All-American, and their All-American son, were the ones in need of help.

During most of my years growing up, my dad owned a Jeep (then virtually the only 4WD vehicles available in the States) and we spent many hours bouncing down back roads, climbing hills and getting stuck (and, eventually, unstuck). And I’ve owned my own 4WD vehicles for 15+ years just so I can go where other people aren’t, primarily at the ends of northern and central Arizona’s many rocky roads. Although I haven’t done as much of that since my transition, I still enjoy it when I get the chance.

A little over a year ago, I was in Tucson for a workshop. I’ve been down there for these workshops before and on my way back I like to find a different way home that inevitably involves some amount of “4-wheeling.” This time I decided to drive to the top of Mt. Lemmon and down the other side to Oracle. My friend Alison in Tucson warned me that the road was really rough, but I found it not particularly challenging. (In fact, it can probably be done without 4WD as long as you have decent ground clearance and know how to negotiate your way around the high spots.)

I had gone perhaps 5 miles down the dirt road on the back (north) side of Mt. Lemmon, when I came upon an SUV (i.e., one of those vehicles that have 4WD but are clearly not made to drive off the pavement) stopped by the side of the road. Mr. All-American appeared to be about to start changing a tire, while Mrs. All-American and young All-American son watched. Growing up, I learned that you never pass by someone in possible need of help in the backcountry without stopping and doing what you can to help, since you never know when you’ll be the one in need of rescue. Feeling quite smug in both my driving skills and my ability to change a tire, I stopped, rolled down my window and asked Mr. All-American if he needed any help. The look on his face in response clearly said that he had no idea what a woman could possibly do to help him and wondered what in the hell a woman was doing driving down this remote road all by herself anyway? (I suspect there was also a bit of hurt male pride to see me safely negotiating the road, when he couldn’t, a feeling I had no interest in alleviating.) In any case, he said, no thanks, and I went on.

As your Mr. All-American told you, I’ve changed my share of flat tires, as I’m sure you have too. So, my Mr. All-American got to save face in front of his wife and son, but was left on the narrow roadside to fend for himself. Oh, well, his loss.

BTW, if you ever get a chance to take that drive, please do. It’s beautiful, especially as you get lower down above Oracle where there are fields of bear grass waving in the wind.

Thanks for the memory, Sonora. I hope you get those new tires soon, that is, unless you want to repeat your fake “damsel in distress” scenario to see who stops the next time. :-)

Some Thoughts on Activism

My friend Michael is one of the organizers of, and the webmaster for, the Central Arizona Gender Alliance.  Recently, he asked me to write a profile of myself to be posted as the feature story on the CAGA website for January 2009.  Rather than start from scratch, I adapted my “Who I Am and Why I Do What I Do” post.  Since I wrote that post, however, my involvement in the issues affecting our community has increased.  That led to the following comments that I added to the story that will appear on the CAGA site, which I wanted to share here.

While I have this chance, I also want to say some things about activism. The trans community in this country is small, and the number of those willing to speak out on the issues that affect us is even smaller. That means that each one of us is vital if we ever want the public’s attitude toward us, and the discrimination, hate and bigotry that we face, to change. It also means that one person can have a significant impact on the direction that our community takes in addressing the issues that we face.

It sounds clichéd, but I have learned through experience the truth of the statement that if I don’t do it, if I don’t step forward and say “this is wrong and must change,” if I don’t propose solutions and work to make them a reality, then who will? The answer is no one. It happens every day. We see or hear about something that we know is wrong – another trans woman shot in Memphis, another trans woman homeless because she can’t get a job – and we stand by in silence and do nothing. Those things will never change if you don’t work to change them, even if all you can do is to say “this is wrong.” Keep in mind too that, although it is important that we in the trans community know about these injustices, it is our families and friends, our lesbian, gay and bisexual sisters and brothers, and the general public that need to hear our voices. So many people truly have no idea about the mistreatment that we suffer, how widespread it is and how few protections exist to ensure that most basic of human rights: the right to live lives of peace and dignity. Those are the people we need to speak to, because it is their sense of justice and morality that we need to invoke if we ever want things to change.

Is it scary to step forward and say, “I am trans, this is wrong and it must stop”? Of course, it is. But there are also rich rewards in showing the world that we are proud of who we are, that we refuse to cower in the darkness of ignorance and hate any longer, and in knowing that we are helping to change the world, not just for ourselves, but for people everywhere. Join me! Today do just one thing to make the world a better place to live, whether that’s giving a hug to a friend you know is having a hard time, writing a letter to the editor or simply telling your story. But, most of all, Be Who You Are!!

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