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Gender Bias in the Workplace

I came across this interesting article in the New York Times: Before That Sex Change, Think About Your Next Paycheck.

You might expect that anybody who has had a sex change, or even just cross-dresses on occasion, would suffer a wage cut because of social stigmatization. Wrong, or at least partly wrong. Turns out it depends on the direction of the change: the study found that earnings for male-to-female transgender workers fell by nearly one-third after their gender transitions, but earnings for female-to-male transgender workers increased slightly.

As a cisgendered female who has always worked in traditionally male jobs, I find this interesting, but not surprising.

I was also amused (but not surprised) by the last two paragraphs:

Ben Barres, a female-to-male transgender neuroscientist at Stanford, found that his work was more highly valued after his gender transition. “Ben Barres gave a great seminar today,” a colleague of his reportedly said, “but then his work is much better than his sister’s.”

Dr. Barres, of course, doesn’t have a sister in academia.

Diane Schroer’s Recent Title VII Win and ENDA

Jillian Weiss, an attorney and law professor who writes an excellent blog on transgender workplace issues recently posted an excellent article on The Bilerico Project with her thoughts on last week’s decision by the federal district court in Washington, D.C. in Diane Schroer’s sex discrimination lawsuit against the Library of Congress. In a landmark decision, Judge James Robertson held that the Library violated the federal ban on sex discrimination in employment (contained in Title VII of the Civil Rights Act of 1964) when it withdrew its previous offer to hire David Schroer, an anti-terrorism expert and former Special Forces officer, as a terrorism analyst when they learned that she intended to complete her transition and begin work as Diane. Among the arguments that the Library made in its defense was the claim that the exclusion of gender identity and expression protections from the Employment Non-Discrimination Act (ENDA) in the House of Representatives last year proved that Congress never intended the ban on sex discrimination to protect against discrimination based on gender identity. Fortunately for all of us, the court rejected that argument. However, the argument that Judge Robertson used to reject that claim is weak and, as Zoe Brain pointed out in her comment on the same article, not very convincing. There are, however, much better reasons to reject the Library’s claim, which I put into my comment on Dr. Weiss’ article:

I’m an attorney and my practice is limited to appellate work only (criminal appeals in my case, but the rules for interpreting statues are the same whether you’re talking about civil or criminal law). The argument that the exclusion of gender identity and expression from ENDA last year indicates Congress’ understanding, and intention, that sex discrimination under Title VII doesn’t cover gender identity discrimination is an obvious one. In the end, however, it’s completely bogus.

Ask yourself, how is the belief or understanding of a completely different Congress almost 45 years after Title VII was enacted relevant to what Congress intended sex discrimination to include back in 1964? It’s not the job of Congress to decide what laws they’ve already passed mean. That’s the job of the courts.

Two other important factors further undercut this argument. First, if you review the congressional record from 1964, you will see that sex discrimination was added to Title VII with the explicit intent to defeat it by convincing the majority of Congress that it was too radical to vote for. So, there’s no evidence in the record that Congress intended sex discrimination to mean anything, let alone evidence as to whether they intended “sex” to apply only to biology or to include gender identity.

Second, what happened last year was simply that a single committee of the House of Representatives sent a bill to the floor of the House that didn’t include gender identity and that the House passed that bill. It was never passed by the Senate or signed into law. Consequently, while it may be proper to say that the House Labor Committee didn’t think that gender identity discrimination should be illegal, there is no evidence that the full House or the Senate agreed, since they were never given the opportunity to vote on that question. Divining legislative intent from Congress’ *failure* to do something without any explicit up or down vote on the issue is a perilous business.

Finally, I’m no conservative by any measure, but I agree with Justice Scalia that the first place we have to look in determining what Congress intended is what they actually said. It frustrates me to no end when the courts here in Arizona agree with prosecutors that, despite the explicit language in a statute, the legislative history shows that they meant something entirely different. At some point, what the legislature or Congress actually said has to mean something.

This is not an argument that, if Congress didn’t think about the problem in 1964, Title VII shouldn’t apply to it. As one person involved with the Schroer case (it may have been Sharon McGowan, the ACLU’s lead attorney) recently said to a reporter when asked if Congress intended Title VII to apply to trans women and men, the framers of the Constitution weren’t thinking about TV either when they talked about freedom of the press in the First Amendment; does that mean it shouldn’t have the same protections as newspapers?

Change is a natural process that preexisting laws must continually adapt to. It is the difficult but absolutely necessary job of courts to determine how those laws should be applied to situations that the people who adopted them never contemplated. That doesn’t make the process illegitimate; it just makes it very, very hard.

CBS Sunday Morning: The Sex Change Capital of the U.S.

On Sunday, September 7, CBS Sunday Morning did a fairly long story on Trinidad, Colorado, the home of Dr. Marci Bowers, one of the leading sexual reassignment surgeons in the U.S.  I don’t like the phrase “sex change” but the story is pretty straight forward and not at all sensationalistic.  I was in Trinidad in July to support my friend Mari through her surgery.  It’s a nice little town, similar to many other mountain towns I’ve visited in the West; the people were friendly; and the care at the hospital was, for the most part, excellent.  Marci is friendly and personable but, like most doctors, entirely too busy. From what I’ve seen, the surgical results were excellent, with only a few minor complications.  Here’s the video:

Vodpod videos no longer available.

If you’d like to learn more about Trinidad and how it has dealt with the attention that having a leading SRS surgeon (actually, for many years, the only SRS surgeon in the U.S.) in its midst, there’s a new documentary out called Trinidad that is now touring the U.S.  Look for it at your local LGBT film festival.

The Second Most Beautiful Girl in New York

The Second Most Beautiful Girl in New York

On a recent evening, I met the woman in question, the beautiful Jamie Clayton, at a bar in the Lower East Side. She is 5-foot-10, has long, wavy red hair, porcelain skin and big blue eyes. She sat upright in her stool, long bare legs draped on top of each other exposing upper reaches of thigh under a gray cloth miniskirt.

Read the full article.

At what age should our bodies be ‘put right’?

The copy below is to what I think is an excellent article from The Guardian newspaper in Britain. My own opinion is that under 18 is possibly too young to transition, however I knew full well who I was inside at that age, and if I’d transitioned my life would have been far more productive and easier! (Sadly, it’s so long since I posted on here I’ve forgotten a lot of the tips!)

News : Society : Children

‘My body is wrong’

Should teenagers who believe they are transgender be helped to change sex? And if so, what about the four-year-olds who feel the same way? Viv Groskop meets the parents and doctors in favour of intervention

Viv Groskop – The Guardian, Thursday August 14 2008

‘She was our first child,” recalls Sarah (not her real name), a mother of two who lives in the south of England. “But from age three we knew something was wrong. She was very introverted, isolated. When she started school at four she came home and said she was a freak. It seemed a strange word for a four-year-old to use. She was always quite a sad little person.”

Sarah’s daughter was born and grew up as a boy. Now 19, she is far happier in a woman’s body as a post-operative transsexual. It took two years for the family to get used to calling her “she”. Her mother says her daughter experienced her childhood as mental torture, especially during puberty. “Looking back, we could never find any tape in the house. It was because she was taping her genitals up every day. She said to us later that she thought it would all go right for her at puberty, that her willy would drop off and she would grow breasts. She said she was going completely crazy because she knew in her head that she was a girl.”

One day, when her daughter was 14, Sarah walked in on her in her bedroom. “She was there in front of the mirror with her genitals tucked away. She was very embarrassed. I said, ‘I don’t know what’s happening here but if you want to talk to me, you can.’ About 10 minutes later she came and lay on the bed next to me and said, ‘I want to be a girl. I’m not a boy. My body is wrong. Everything is wrong.'” For Sarah, this was more than shocking: “I had watched programmes on transgender, I’m very interested in people, it’s part of who I am to find out about these things … But you never imagine it’s going to happen to you.”

Sarah sought help from her GP – who laughed. Eventually, her daughter got a referral to the one London clinic that deals with gender identity disorder in children and adolescents. But obtaining treatment on the NHS in her daughter’s mid-teens was slow and difficult. Several suicide attempts followed and the family remortgaged their house to pay for private hormone treatment. Once Sarah’s daughter was 18, they also paid for an operation abroad.
Continue reading

Transgender Access to Health Care

I want to start off by just apologizing for being a little haphazard in my posting here. I am hoping to get on a more regular posting schedule. I have had a lot of different things going on, and I have had a lot that I have wanted to write about but little time to do it. I do appreciate those who have stopped by to see what is going on here, and I look forward to writing more and engaging in some discussions of the topics and issues.

I just got off the Town-Hall conference call with Donna Rose, Jamison Green, and Becky Allison. I thought it was a good start, and I hope there can be more opportunities for our community to come together like this. I think one of the major benefits of calls like this is the breaking down of economic barriers. Today’s topic was essentially health care, and underlying the need for coverage is the need to break down economic barriers. Far too many in our community are unemployed or underemployed. For many, making the journey to a conference may not be possible for economic reasons. Calls such as this will help those members of the community to be able to reach out and interact with the Transgender community at large. I think this will also be of value to those who may live where there is no trans community to speak of. 

Now on to the topic. I think most of us have heard about the AMA resolution in June and the WPATH statement in July. These were both significant statements. I would like to start with the AMA statement, which was actually three statements related to removing barriers to careremoving insurance barriers, and removing financial barriers. The one thing that struck me was the repeated use of GID throughout the statements. They did, however, reference GID as a medical condition, and referenced not only the DSM but also the ICD. Now, I was not familiar with the ICD until this evening. I would appreciate information about it if anyone knows a little more about it, and how GID is treated in the ICD. I think that it is positive that the AMA referred to GID as a medical condition as opposed to a mental disorder. I am curious about how this statement in conjunction with the WPATH statement and other papers could serve to help legitimize our need for treatment if GID were removed from the DSM.

I am behind Kelley Winters’ efforts, my only concern being that we have another avenue by which can can continue to gain the medical treatments necessary to transition. I know some have argued that they do not want to be medicalized. To those I would argue, how can one justify medical treatment in the absence of a medical condition. I want to be medicalized, I just don’t want to be pathologized. I believe that part of our process towards equal health coverage is strengthening the medical need and the recognition of GID in the medical community as a medical condition.

I rather liked the fact the the WPATH statement included things such as chest reconstruction and FFS. As Jamison mentioned, chest reconstruction is the only surgery that many FTM’s want at this time, and for many of them, this surgery is very validating for their gender presentation. The WPATH statement acknowledges that the path to transition is about more than GRS. There are other surgeries and procedures, which some consider cosmetic, that go a long way towards helping to affirm ones gender identity and help make a transition more successful and less emotionally painful (I think anyone who has been through laser or electrolysis knows these don’t reduce physical pain!). 

I think one of the most powerful things in this statement was the AMA’s statement of dispelling the myth that treatments, procedures, and surgeries for trans people are cosmetic or experimental. For us, these procedures are necessary for us to be able to live a life that is more genuine and more true to who we really are. These procedures reduce the emotional stress that can cause so many other health problems. When it comes to insurance companies arguing about cost, I have a few examples of my own situation. Prior to coming out and beginning transition, I smoked almost a pack of cigarettes a day and I was borderline high cholesterol. Within days of coming out, I quit smoking. I stopped cold turkey, now that I was on the road to being me, I didn’t need that crutch. I also changed my eating habits and reduced my stress levels significantly. I was no longer eating the bad foods we eat when we stress eat, fast food, high fat foods, high cholesterol food, you know that stuff that tastes so good but is horrible for you. Since then, my cholesterol is half of what it was before. Not smoking and reduced stress are also significant. Essentially, I likely saved my insurance company easily hundreds of thousands of dollars by transitioning. I greatly reduced my risk of heart attack and stroke, reduced my need for cholesterol and blood pressure reducing medications, slashed my cancer risk each year that goes by, and greatly reduced the potential costs if depression were to lead to suicide or suicide attempts and the related hospitalizations. You tell me, which is better. I think I would take the road of paying for therapy for a few years, GRS and a few other procedures, and HRT. Over my lifetime I bet that it will cost them a lot less then the bypasses and other procedures I was headed towards! 

Another thing I did take away from this was the need for education. Educating our employers, the insurance companies, and the insurance brokers that our companies deal with. There were several stories of brokers discouraging Trans benefits, or pricing them too high to be affordable. I worked in the insurance industry for a brief period of time, and when you are a smaller company, you have little or no ground to negotiate when it comes to benefits. It all comes down to what can I and my employees afford, and what do we have to give up this year. The education has to start with the insurance companies and the larger companies that have the negotiating power. If every company listed in the Fortune 500 index said we want full coverage for out trans employees, I am sure that the insurance companies would take notice.

I find it interesting that many insurance companies offer full benefits to their trans employees, and yet make it difficult and expensive for other companies to provide the same benefits. I wonder about the concept of creating an index that would measure and rate insurance companies not only on the benefits they provide their own employees, but also on how they make the same benefits available to subscribers. Imagine being self employed and having to shop for health insurance with trans benefits, I am sure that is impossible, and if possible prohibitively expensive. 

We need insurance companies to recognize trans benefits as a fundamental part of any group or individual plan. Spread over a sizable group, the costs are negligible. I believe one study showed that it was pennies per premium. I will find that presentation and post it later, I think it was from an Out & Equal conference. If this is part of every policy, cost would not be an issue, and we would finally have equal access to health insurance and the procedures that we need. 

I look forward to future calls, and the discussions and actions that they will generate. There are a few things out there that are dividing some of us, we need to concentrate on many of the things that bring us together. We will always have differing opinions on how to tackle a particular issue, but I think we need to respect the diversity of opinions in this community. We are an educated community, and we need to realize that there is more than one way to approach an issue. Good night to everyone, and hope to talk about some of this more.

Will the proposed amendment to Arizona’s Constitution to ban same-sex marriage change the treatment of existing marriages in which one partner transitions?

Recently, on one of the Arizona trans-related Yahoo groups that I belong to, one member stated her belief that the proposed constitutional amendment to ban same-sex marriages in Arizona, known as Prop 102, would change the law so that “[e]xisting marriages involving a transsexual could easily be nullified.” (The proposed amendment states, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”) Here is my response:

I disagree. Prop 102 will have no more, and no less, effect on marriages in which one partner transitions after marriage than the existing statute.

That statute (ARS 25-101(C)) states, “Marriage between persons of the same sex is void and prohibited.” There is no material difference, from a legal standpoint, between a statute, or constitutional amendment, one of which says same-sex marriages are void and the other of which says that only marriages between a man and a woman are valid. Both have the same potential to invalidate existing marriages in which one partner legally changes her or his sex, if the courts choose to recognize that change for purposes of marriage, thus rendering the marriage an illegal same-sex marriage. (Note that, this is not the approach the courts in Kansas and Texas took. Those courts refused to recognize a legal change of sex for purposes of marriage. Under those rulings, a marriage in which one partner legally changes sex after marriage would continue to be valid. As noted below, however, I know of no cases in which that holding has been extended to pre-existing marriages, rather than marriages in which the partner transitions prior to marriage as were involved in those cases.)

In either case, any attempt to declare an existing marriage that was legal at the time it was first entered into, void because one partner transitions would face significant problems under the due process and equal protection clauses of the federal constitution, which always trump state law. There is a long line of cases saying that, as long as a marriage was legal when and where it was entered into, then it remains valid until and unless the partners legally divorce. That’s why people did, and still do, go to Las Vegas to get married instantly and can go back to their home states and have their marriages treated as valid, even though their home state would have imposed additional requirements, such as a waiting period or a blood test. It’s also why first cousins from Arizona can travel to a state where such marriages are legal, get married, and return to Arizona and have their marriage recognized as valid, even though Arizona law says that marriages between first cousins are “void and prohibited” (ARS 25-101(A)), which is the same language used in the ban on same-sex marriages.

The validity of existing marriages in which one partner transitions after marriage hasn’t been resolved anywhere in the U.S., at least, as far as I know, but there is no reason to think that such marriages are any more, or any less, at risk under Prop 102 than they are under existing Arizona law. Nonetheless, I think that anyone in such a marriage needs to be aware of the risk that their marriage might be challenged at some point, and take precautions, e.g., mutual wills and medical directives, to ensure that, if that happens, they will not lose all of the rights and benefits they expected to receive from being married.

Cross-posted from my personal blog.

New transgender policy at New York juvenile jails

Associated Press article, via the Tucson Citizen:

Transgender youth in New York’s juvenile detention centers are now allowed to wear whatever uniform they choose, be called by whatever name they want and ask for special housing under a new anti-discrimination policy drawing praise from advocacy groups.

Transgender youth are provided private sleeping quarters and are allowed to shower privately. They are also allowed to shave body parts, use makeup or grow their hair long.

The policy directs staff to learn and use the words gay, lesbian, bisexual and transgender in an appropriate context when talking with youth.

While all residents may ask to be called by a preferred first name rather than their legal one, the policy says males who believe they are female must be called “she” and females who believe they are male must be referred to as “he.” Staff must use the preferred name and pronoun in any documents they file.

Read the full article here.

I think that’s pretty amazing. I just hope the implementation of the policy goes smoothly.

Edited to add: The Daily News article found here presents the same story in a much more negative fashion. I guess that’s inevitable, given the state of society today.

New England Transgender Pride March: Thoughts from a straight ally

I discovered this thought-provoking blog post from Jendi Reiter:

The first-ever New England Transgender Pride March took place this weekend in Northampton, and I was there with my “Episcopal Church Welcomes You” rainbow tank top and a digital camera to capture the pageantry. I was hoping to blend into the MassEquality contingent, but they were scattered around other groups this time, so I just milled around looking like I knew what I was doing, and took lots of pictures. Next thing I knew, someone had handed me a bunch of purple and white balloons, and I was marching behind the lead banner, shouting “Trans Pride Now”.

Go read the whole thing! You’ll be glad you did. 🙂