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.

Still More on Transsexual Marriage Rights

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: Continue reading

Yes, We Can … and We Will!

This video demonstrates the promise of change, and the hope that it brings, that inspired millions of us to elect Barack Obama as our next President.  Today, I choose to believe in this message of hope and I commit myself to doing all that I can to change the hate and bigotry that led to the passage of same-sex marriage bans here in Arizona, and in California and Florida, and a ban on adoption by gay, lesbian and other unmarried couples in Arkansas.  Hate can never win!

(Cross-posted from my personal blog.)

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.