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.

Cross-posted from my personal blog.

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eQualityGiving’s Omnibus Equality Bill Proposal

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

What do you think?

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

INTRODUCING THE EQUALITY & RELIGIOUS FREEDOM ACT

Dear Abigail,

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

THE BLUEPRINT FOR LGBT EQUALITY

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

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

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

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

WHAT THE OMNIBUS BILL COVERS

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

INCREMENTALISM vs. OMNIBUS BILL

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

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

As the Rev. Dr. Martin Luther King said:

“A right delayed is a right denied.”

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

An Omnibus bill has two major benefits:

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

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

SAY WHAT YOU THINK

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

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

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

Best regards,

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

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

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UPDATE – 3/24/09

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

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

I Have a Dream!

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

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

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

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

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

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

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

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

(Once again, cross-posted from my personal blog.)