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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.

Cross-posted from my personal blog.

Follow-up on Transgender Access to Healthcare

Lately I have been doing more thinking about the issue of health care coverage for trans people. My original post on this topic can be found here. This topic seems to be one that comes up repeatedly, and I think that it is one that deserves more attention and more analysis. Over the next few weeks or so, I am going to do more research into the issue, looking at coverages, barriers to health care access, costs of health care for transitioners, and the medical needs of the transgender community.

A few months ago, we had the Town Hall call on this topic, but I have seen little follow-up on this issue. In fact, we have seen things get worse in some respects. Recently we saw the policy changes allowing doctors to refuse treatments if it goes against their religious beliefs, and this was followed closely by the Pope’s condemnation of homosexuality and transsexual persons. Was this a coincidence? Maybe, but the timing is suspect. I wonder if this will be followed up with statements and opinions about what “good” Catholic doctors should and should not do. I grew up Catholic, and I have always held out hope that the Church will move into the 20th Century, but it seems to continue to root itself in the dark ages.

Anyway, I would like to ask for your help with this little project of mine. If anyone has any stories about health care issues such as being rejected by doctors, insurance plan issues, or any other problems related to being trans and seeking health care, please e-mail them to me. E-mail me at transgenderhealthcare@gmail.com. I would even like to hear the good stories, the improvements in coverage, etc. When sharing your stories, I will always keep your personal information confidential, but please let me know if you would prefer me not to republish your story as part of this. If you don’t want it published, I will just use the information as a reference points as I look for trends, opportunities, or discriminatory practices. Thank you to anyone willing to share their experiences. Also, if you have any good links to information you may feel is relevant, please send me that as well. I think the more information I can pull together, the better I can put together a picture of where we stand today, where we need to be, and some ideas of how we can get there.

[Editor’s Note:  Cross-posted from Kathryn’s personal blog.]

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

My thoughts as TDOR approaches

On the eve of Transgender Day of Remembrance 2008 I find myself reading sites on TDOR and it saddens me to no end what hatred can do to someone. I’ve hidden my true feelings most of my life in fear of this ignorance and hate. Fear of losing my family, friends or worse, having a run-in with one of the hatemongers who profess to know better than I do. Several years ago I hit a time in my life where hiding who I am was not working for me anymore. So I started the process of transition to get my life back on track. I’ve learned a lot over the years and know that I am on the right path for me.

During my skimming of the sites discussing TDOR, I came across some links to sites that profess to know what’s best for me (yah right) and I’d like to take some of the comments that were left at these various sites and personally reply to them here. Continue reading

Fluid Gender

I recently read a blog posted by an online friend which included another post-op trans woman’s regrets of transitioning and having GRS.  She had described how her feelings to transition and being a woman were more sexually motivated, and that after surgery she could not have that satisfaction.  She mentioned that she misunderstood the drop-off of sexual desire due to hormones as a sign that she was doing the right thing.

My first reaction and thought was how it was a good example of why the real life test or real life experience is important.  I assume the person lived as the gender she wanted to be before having the surgery, based on the comment of her “following the rules”.  If she had, then I wondered if she truly did the necessary soul searching — the second-guessing and what-ifs playing in her mind over and over.  When it comes down to it, the physical aspects of transition are not as important as the emotional aspects.  Being emotionally ready for the changes is very critical to anyone’s successful transition.

I started my transition almost two years ago, and if I had had the money, was single, and could have had the operation sooner, I probably would have jumped in head first and had GRS.  But with my therapist’s guidance, I slowed down, following her suggestions to explore my femininity and get out in society presenting as a female.  I also wanted to do the changes in steps, where I could evaluate each step to see if it was enough for me.  First, I had facial and body hair removal, as it was one thing that always seemed to bother me (and guys have it done, so no harm there).  Then I attended several transgender conferences to “live” as a woman 24×7 for one full week.  I went out to public places in the daylight, such as a shopping mall and busy restaurants.  I wanted to get a feel for how I would be treated and how any negative reactions would make me feel.  Would I feel more like a “man in a dress”, or would I feel like a woman, regardless of how people treated me?  These exercises are very important, as they can let us know that if we are uncomfortable as a part-time woman, then we’re not ready to be full-time.

My soul searching has been going on now for quite awhile.  There are days when I think I just need to stop stalling and move forward with it all.  But I am very cautious, as there is much at risk.  I question myself over and over about what is right.  Am I that uncomfortable living as a man?  Can I just keep hiding this for the rest of my life?  Would cross-dressing periodically be enough, especially since my wife would be accepting of it (as long as I do it discretely)?  Would being on hormones but continuing to live as a man with no surgery be good enough?  Twenty years from now, would I be happier living as an older man or as an older woman?  These are just some of the questions I have asked myself over and over.  For me, I need to be as sure as I can that the distress and discomfort I experience is impacting my life enough to move forward with transition to full-time and eventual surgeries.

In my honest opinion, I think that gender is fluid and NOT binary.  I think there are many who are on one end of the spectrum, where the difference between body sex and gender identity are so polar that they absolutely know that they are “in the wrong body”.  Then there are others who are somewhere close to the middle, with just enough feminine-mindedness that they experience some discomfort and have a notion that something is out of whack, but can otherwise function in society as a man.  There are days when I think I fall into that category.  I had an acquaintance recently tell me that you should know you are a woman inside if you are truly transsexual.  I have to disagree with that, as that may be true with some but not all.  I think we all have within us, both natal male and female, a degree of masculine and feminine nature (and when I say nature, I mean born with it and not learned).  Those balances are different in each of us, and could even change based on how much we suppress or allow those natural tendencies.  It comes down to really understanding ourselves, to find the “true self”.  Once that is done, then the surgeries and other aspects become window dressing.

I hope we all take the time to fully understand ourselves, as that is the true journey.

Tiana 🙂

The UK NHS Postcode Lottery

I am Stephanie Butterfield, and I am transitioning on the UK PCT-led NHS system. Whilst i feel fortunate to have had my trachea shave/vocal cord surgery and facial hair removal already, with my GRS also guaranteed when the time comes, I do however feel very frustrated at the UK postcode lottery, not just for me, but for others too.

The PCT’s (Primary Care Trusts), often treat transsexual procedures as unnecessary, or simply cosmetic, not thinking beyond their small mindedness and thinking about the TS patients’ quality of life.

The postcode lottery works like this – one PCT will fund a girl’s breast augmentation and facial hair removal, whereas another PCT will not. How, you may ask?  If it is the NHS (National Health Service), we should get even and equal access to funded treatments and operations available on the NHS.

However, each PCT has the right to decide funding at a local level; it’s this which allows the postcode lottery to thrive, leaving many transgirls and transguys frustrated at the unfairness of it all.

Another irritating feature of the NHS transition route is the waiting one has to do, from GP (general practitioner) to GIC (gender identity center), from 1st opinion to 2nd opinion, from 2nd opinion to the operation itself.

I am currently at the waiting for my 2nd opinion stage, an 8 and a half month wait as I write, and my latest frustration is being blocked from seeing an endocrinologist.

Stephanie

“A Boy’s Life” in The Atlantic

The November 2008 issue of The Atlantic magazine contains an article called “A Boy’s Life.”  It’s a comprehensive exploration of the topic of transgender children:  where it comes from, the struggles that parents and children experience as they strive to find ways to deal with it, and the difficult choices they must make in that process.

I’m not sure how I feel about this article.  Much of it is troubling, since I wish the whole topic of the origins of being transgender and how best to treat it to be neat and simple, but it just isn’t.  In the end, I believe that children should be allowed to make their own decisions to the extent that’s feasible.  (Obviously, that’s a huge loophole, but, for the moment, I have neither the time nor the inclination to try to define my position any further.)  If a child typed as a boy at birth wants to live as a girl, she should be allowed to do that with her parents’ support.  At the same time, her parents need to make clear that either choice is OK.  If she later decides that she wants to live as a boy, that too should be allowed.  Will it be more difficult then?  Yes, of course.  Every choice we make has consequences and, as much as we might like to, we cannot insulate our children from the consequences of their choices any more than we can avoid the consequences of our own.  But I believe that the challenges of returning to life as a boy, after living as a girl for weeks or months or years, will be less traumatic than growing up never having had the chance to have that experience and to make a more informed decision about her future.

Eventually, she will be faced with decisions that will have permanent, physical consequences — whether to begin cross-sex hormones, whether to have SRS.  That is where the use of hormone blockers has the greatest benefit, since they delay the onset of changes that will make living in her affirmed gender infinitely harder until she has the maturity and the information she needs to make that momentous decision, while retaining the option of allowing her puberty to proceed as it would without intervention.  In the end, however, it must be her decision, not her parents’, not her doctor’s.  None of can know what is truly best for another person, even our children.  All we can do is ask Spirit to guide our choices and the choices of our children and then trust that She will respond to our calls.

(Crossposted from my personal blog.)

Review – “BBC America Reveals: Sex Change Soldier”

I was a little apprehensive going into the latest episode of “BBC America Reveals” – titling it “Sex Change Soldier” made it sound like a tawdry tabloid exposé rather than a serious documentary on one person’s journey from male to female. But I knew they’d done previous respectful treatments of a young transman and three partners of transvestites, so I approached it with an open mind.

Captain Ian HamiltonThe format was a little different in that the female documentary-maker (unnamed, and unseen) gave a narration that showed she became a true friend to Jan Hamilton during the filming. Apart from a few interactions that Jan has with people in her life, we don’t get to see or hear from others during the hour-long show. From the start, when we see footage of “Captain Ian Hamilton” of the Elite Parachute Regiment hiking through the jungle, Jan is on-camera almost all the time.

We are introduced to Jan, who tells us that she is a 42-year-old woman trapped in a man’s body. The narrator informs us that Jan will be the first officer in the (presumably British) armed forces to “undergo a sex change” – transition. She continues on to say that during the making of the documentary, she came to fully understand the price that Jan must pay to go through this.

Jan takes us through her daily routine of voice exercises, putting on makeup, tucking, and – after she shows us her thinning hair – putting on her wig. “I’m still Ian when I wake up.” Each morning she jogs four miles, in an effort go from 224 lbs and 14″ biceps, down to 154 lbs. Despite only having dressed in public for four months, Jan is ready to go to Thailand for FFS, “to have my face rebuilt to make me look like a woman”.

Jan Hamilton“I hid behind this big wall of being a paratrooper … I hated myself and I hated the world and I hated being in the world.” Jan had an overpowering sense of the wrong person, the wrong body.

Continue reading

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.

A Lesson in Trans Etiquette

OK all you little boys out there. Here is your chance to better yourself. I am going to make this quick and simple and attempt not to offend anyone too badly.  Based on a true and very recent event.

If a woman walks into the room, be it a business or otherwise and you read her as TG/TS. Be polite and treat her as any other genetic woman. If you want to start a conversion with her, the first words out of you mouth had better not be “do you hang out at [a known ‘and nasty Tranny’ Bar]”. The woman is likely to take a great deal of offense at that as I DID. However being the polite and caring woman that I am, I chose not to get all pissed about it.

So why would I be offended by that question? . . . I am going to tell you.

It is about the same as someone walking up to a suspected gay man and asking him if he is a FAGGOT. Just because I am a TS is not an automatic ticket for me to hang out in “certain places”. I am NOT a “Tranny” and I DONT hang out at “Tranny” bars. I cannot say anything nice about the place I was asked about, so I won’t

I know I am a big woman and I know I get read. But do not rub it in my face by asking me or any other TS person that question or one like it if you do not know them or anything about them. And heaven help you if it is your conversation starter. I guarantee it to be a short conversation and I WON’T buy anything in your store.

Just because I or any other person is a transsexual (M2F or F2M) does not give you the right to call us out, especially in public. Treat me like women please and treat us with respect. And we will return that in kind.