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Posts Tagged ‘transsexual’

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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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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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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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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The discussion on various Yahoo groups that I belong to regarding the impact of the same-sex marriage bans just enacted in Arizona, California and Florida on marriages involving one or more transgender partner continues. I’ve previously posted about those issues here and here.  This is my most recent addition to that discussion:

I agree with the basics of your description [of the law concerning marriages in which one partner is trans], but want to clarify that what happens in most of these cases is that the couple is able to get a marriage license and marry simply because they appear to be a typical male/female couple. Thus, although they are allowed to marry, they are “legally” married only in the sense that no one has challenged it yet. Many couples involving a trans partner may marry, live out their lives and die without anyone ever challenging the validity of their marriage, and thus escape the uncertainty I’ve been talking about. But there’s no way to predict which couples will be that fortunate and which ones will face the horror of being told years later that they were never legally married.

As for the “trans lesbian” who married her partner that you mentioned, I assume that you are referring to cases where a MTF transsexual marries a cisgender female, before the trans partner has changed her name or sex marker on any of her identification documents. I know of several such cases. Again, as long as the couple appears to be a male/female couple to whatever clerk issues the marriage license and to whatever judge or other authority marries them, their marriage is treated as a legal, opposite-sex marriage, but may, or may not, in fact be legal if it is ever challenged.

The basic rule is that a marriage that was legal when and where it was entered into continues to be valid until dissolved by divorce. The federal Defense of Marriage Act (DOMA), however, makes an exception to that rule for same-sex marriages by allowing states where such marriages are banned to refuse to recognize a legal same-sex marriage entered into in another state or country. DOMA should not apply, however, to a marriage between a trans woman who was legally male at the time and a cisgender female since, at the time it is entered into, it is a legal opposite-sex marriage. The same applies to a trans man who is legally female at the time he marries a cisgender male. Such marriages should, therefore, be safe from challenge even after the trans partner legally changes her/his name and sex. A marriage between a man and woman, one of whom realizes that she/he is trans after the marriage and then transitions, should also be legal, since the only difference between that situation and the ones I just discussed is simply a matter of timing.

BUT, and this is a big “but,” I know of no cases anywhere addressing whether a marriage in which one partner transitions after marriage continues to be valid. Everything I know says it should be, but stranger things have happened, especially when it comes to trans people.

Finally, just to clarify, the majority of courts that have faced the issue have said that a marriage between a trans woman (i.e., an MTF transsexual) who is “legally” female at the time of marriage and a cisgender man (or vice versa) is INVALID as an illegal, same-sex marriage, despite any change in identification documents, birth certificates, or whatever.

The bottom line is to get married before the trans partner has legally changed her/his sex if you can. If not, once married, see an attorney to draft wills, medical directives, child adoptions, etc. to legally create as many of the benefits of marriage as possible, in case the marriage is declared invalid at some future date. (In fact, it wouldn’t be a bad idea to do those things even when the couple marries while they are still legally of different sexes, just in case.) In other words, do the exact same things that other “same-sex” couples have to do to create the semblance of a legally recognized marriage. That’s why marriage equality is just as much an issue for trans people as it is for gays, lesbians and bisexuals.

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