The 2013 Trans 100 List Is Out!

Contact:
Jen Richards
Co-Director, The Trans 100
jen@thetrans100.com

 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.

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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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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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Once Again, Erasing the Role of Transphobia in Hate Crimes

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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I’m a Dreamer

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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Resources on cisgender, cissexual and cis privilege

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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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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When Does “Sex” Matter to Trans People

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.

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