The Arizona State Bar Considers Inclusion of “Gender Expression” in the Rules Prohibiting Discrmination by Attorneys

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] Comments on Sweden’s recent acquittal of a cisgender man for the rape of a trans woman

Recently, there has been much coverage online of a recent case from Sweden in which a cisgender man was acquitted of the rape or attempted rape (since the act, apparently, was never completed) of a transgender woman. (See here, here and here.) Much of this coverage has implied that the acquittal of the defendant resulted from the judge’s bias against trans women. While that could well have been a factor here, I suspect that the situation is much more complicated than that.

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.)

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Center for American Progress’ ENDA FAQ Misinterprets Critical Provision

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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Does the New York Marriage Equality Bill Include Intersex People?

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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Why the “Transsexual” vs. “Transgender” Debate is Irrelevant to the Fight for Equal Rights

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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