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Archive for the ‘Equal Rights’ Category

Here’s my report on today’s Arizona State Bar Board of Governor’s meeting:

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.

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UPDATED: see below.

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.

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To me, the answer is quite clearly “Yes!” However, since some people apparently disagree, I’ll go ahead and explain how I reach that conclusion.

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.

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I hesitate to jump into these shark-infested waters, but here goes.

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.

(more…)

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Pedro Julio Serrano, Communications Manager for The National Gay and Lesbian Task Force, is again doing his best to erase the role of transphobia in the murder of Jorge Steven López Mercado in Puerto Rico last fall.  Pedro had this to say in today’s article in EdgeBoston on the run-up to the trial of Jorge’s murderer:

“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.

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

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

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

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

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

The posts where this controversy arose on PHB:

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

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

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

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

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

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

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

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

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

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

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