TransGriot Note: The article by Kellee Terrell that Kylar Broadus and I were interviewed for that appeared in The Root on Black transgender people.
"Can you imagine what it's like to see people you work with refuse to
walk on the same side of the street with you or sit with you at lunch,
or to be told that you are unhirable, just because you are a transgender
man?" asks Kylar Broadus, an African-American lawyer and board member
of the National Black Justice Coalition, a national black LGBT civil rights organization based in Washington, D.C.
Broadus, who was born a woman and transitioned into a man 17 years
ago, has been passed over for jobs because of his gender identity. "I'm
basically unemployable because I can't hide the transgender part of me.
Most likely I am not getting hired once employers see that my Social
Security card and school transcripts all have a female name," he says.
"I am a human being who deserves the right to make a living like
everyone else."
Broadus' experiences are not rare. The harsh reality is that whether
they possess a J.D. or a GED, members of the African-American
transgender community face severe discrimination, according to the
recent study Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (pdf). The survey, the first of its kind, was a collaboration between the National Gay and Lesbian Task Force, the National Center for Transgender Equality
and the National Black Justice Coalition. It collected data from more
than 6,500 transgender Americans and found that all transgender people
face severe bias ranging from housing and health care to education and
employment.
But when researchers took a deeper look at the discrimination that the black respondents faced
(pdf) -- all 381 of them -- the data jumped out at them. "What was
really poignant were these stark differences. In every case, black
respondents fared worse than the nonblack respondents in the national
survey," says Darlene Nipper, deputy executive director of the National
Gay and Lesbian Task Force. "This is because black transgender people
face anti-transgender bias coupled with structural and institutionalized
racism."
The Greater Challenge of Being Black and Trans
Monica Roberts, a 49-year-old black transgender activist and founder of the award-winning blog TransGriot, wasn't shocked by Injustice at Every Turn's
findings -- they reflect what advocates have been saying for years.
"There is this saying that when white America has a cold, black America
has a fever. Well, when black America has a fever, black transgender
America has pneumonia."
The employment-discrimination data alone support Roberts' train of
thought. Overall, black unemployment is at an all-time high at 16.7
percent, but 26 percent of black transgender people are unemployed --
that's three times the rate of the general public and twice that of the
rest of the transgender community. And while a crippling economy is a
serious factor behind the statistics, it's important to note that
current laws -- in 35 states it's perfectly legal to fire or not hire someone because he or she is transgender -- exacerbate these unemployment numbers.
Thirty-two percent of black transgender respondents have lost a job
because of bias; 48 percent were not hired because of bias; 34 percent
were living in extreme poverty, reporting a household income of less
than $10,000 a year; and almost 50 percent admitted to selling drugs or
performing sex work in order to earn money to survive.
Unfortunately, these disparities don't stop at employment. The report
also found that 20 percent of black respondents are HIV positive (the
general black population's HIV prevalence rate is 2.4 percent); 21
percent of those who were attending school as transgender people had to
leave because the harassment was so severe; 41 percent have been
homeless in the past (five times the rate of the general U.S.
population); 29 percent of those who had been in jail or prison reported
being physically assaulted, and 32 percent reported being sexually
assaulted; and 34 percent reported not seeking medical attention when
injured or sick for fear of being discriminated against in health care
settings.
A State of Despair
One of the most shocking findings was that nearly half of the black
respondents reported having attempted suicide at least once in their
lives -- this rate was higher than that of any other racial group in the
survey.
Nipper states that the numbers speak volumes about the emotional and
mental distress that members of the black trans community endure
throughout their lives. "From cradle to the grave, black transgender
people are experiencing high levels of abuse and harassment from all
over -- their teachers, employers, the prison system, the health care
system, you name it," she says. "And there are barely any safe places
for them to go to deal with this stress."
Despite the devastating statistics, it's important to recognize that
the very existence of such data is a victory of sorts because
historically, reaching the transgender community -- especially people of
color -- has been incredibly difficult for researchers. Even the U.S.
Centers for Disease Control and Prevention falls short on specific data
on transgender people. And despite acknowledging that this community has
the highest HIV risk factors of any group, the CDC lumps transgender
people into the same category as men who have sex with men. (In August the CDC stated that it is revising this approach.)
"We go underreported because we live in fear," says Broadus. "I
remember first coming out in my community in Missouri, and there were
people who came to see me speak who had literally locked themselves in
their homes and never really came out because they were terrified of
what would happen if they did."
Nipper adds that her organization understood this fear and created a
grassroots approach in collecting the data. "We did a lot of outreach
across the country. We worked with groups and allies, and we used online
surveys and went to the bars and clubs to really reach the transgender
community to participate in this survey."
Now advocates have the data they need to prove to lawmakers that this
population needs better protection under the law. "We plan on taking
this data and our recommendations and pushing for, among many things, a
federal anti-discrimination employment bill," Nipper says.
So Why All The Hate?
Despite the increase in positive media coverage around LGBT issues -- and shows such as Glee, Modern Family and True Blood
that raise the national consciousness around what it means to be gay or
lesbian -- it's hard to deny that transgender people, especially
African Americans, are somewhat left out of that national conversation.
(The most visible nonwhite transgender faces are Isis from America's Next Top Model and People.com editor Janet Mock.)
Broadus believes that such blatant omission only leads to more
ignorance, sensationalism and hatred toward his community. "We find
ourselves the butt of joke on The Jerry Springer Show or some sexual fetish in porn," he says. "We are rarely seen as authentic people."
Sharon J. Lettman, executive director of the National Black Justice
Coalition, is confident that the report will be a wake-up call for what
African Americans need to do as a community. "Our black transgender
sisters and brothers are black people, too, and we have to love them better."
The good news is that there has been a surge in black transgender
leadership over the years. Just this May, in conjunction with the
National Black Justice Coalition, Broadus started the Trans People of
Color Coalition as a means for transgender people to advocate for
themselves. "This is an effort to build a movement," he says. "People
are finding their power and realizing that they are worthy."
And while black transgender activism is important in changing the
hearts and minds of straight America, it's also crucial in further
educating the white and black lesbian, gay and bisexual
community, especially the white-dominated LGBT movement, which for years
has been accused of being racist, trans-phobic and AIDS-phobic.
Roberts believes that issues of respectability politics help explain
why gay-friendlier causes such as marriage equality have sucked all the
oxygen out of the LGBT movement and left little space for transgender
issues and black LGBT folks across the board. "There is this illusion of
community, and it's frustrating as hell," she says. "Historically, the
transgender community has backed their rights, while they were
stabbing us in the back when it was time to reciprocate. It was black
trans folks who started the Dewey's lunch-counter sit-in [in
Philadelphia in 1965], and it was trans women like Sylvia Rivera who
jump-started the Stonewall Riots [in New York City in 1969], when the
conservative queers were sitting in their closets."
In the end, Nipper is bothered by the disinterest of some of her
colleagues when it comes to transgender equality and this particular
report, especially since the 'T' of the LGBT community has the potential
to catapult the movement much farther than it's ever been. "The people
who are the most vilified, the most harassed and the most abused
represent the furthest margins. If we can correct their issues --
transgender issues -- we can correct the issues that impact everyone in
this movement."
Kellee Terrell is an award-winning Brooklyn, N.Y.-based
freelance writer who writes about race, gender, health and pop culture.
Terrell is also the news editor for thebody.com, a website about HIV/AIDS. She blogs about health for BET.com. Follow her on Twitter.
Showing posts with label guest post. Show all posts
Showing posts with label guest post. Show all posts
Tuesday, October 18, 2011
Wednesday, June 15, 2011
Forcing Boys To Perform Masculinity
TransGriot Note: Another post from Renee, the distinguished editor of Womanist Musings
I love to paint my nails. Right now they are an awesome lime green. Every time I pull out my nail polish, Mayhem stares at my hands and asks me if he can touch them when they are dry. One day he finally built up the courage to ask if I would paint his nails too. Of course I had no problem with that, and I let him pick the colour he wanted. The unhusband received praise from our friends for allowing his son to walk around with painted nails. This irritated me to no end, but I took it in stride. Is it any wonder that kids learn that certain things are for girls when fathers are complemented for allowing their sons to explore?
When Monday rolled around, Mayhem asked that I remove his nail polish, because he didn't want to be laughed at, at school. He told me that a lot of people think that nail polish is for girls, and because he is a boy, that they would laugh at him. My heart broke for him, but I took the nail polish off as he requested. The weekend rolled around and on Friday night, Mayhem once again asked if I would paint his nails, and if he could pick the colour again. We sat down and he patiently waited for his nails to dry. Throughout the weekend, he went to the park to play with his friends, but on Sunday night he once again asked that I take off his nail polish. He told me that people laughed at him, and called him a girl at the park and that it made him mad.
The next day when he came home from school, he noticed that I had not bothered to put any makeup on. "Your lips look regular mom," he said. I told him that I was not wearing any lip gloss today and he asked me if lip gloss and lip stick are only for girls? I told him that boys can wear anything that they want, but because some people are silly and only believe that girls should wear this, that should he choose to do so outside of the house, that some people would tease him. He put his head down and said okay, but I could see that he was sad. For Mayhem, wearing makeup is about play. He loves vibrant, bright colours and it is just part of an expression of who he is.
What he is learning by this whole experience is that breaking the gender binary in any way comes with social discipline. He knows that his home is a safe space, and that he can be who he wants to be, but acceptance has limits outside of his home. In my mind, this answers the nature vs nurture debate. Social discipline is how we force people to conform and perform gender in the manner in which we have normalized. If a six year old boy cannot wear nail polish or play with his mother's makeup without worrying about being teased and attacked, then the very idea that boys are born with an innate desire to perform certain behaviours is wrong.
Mayhem has 12 days of school left, and I know that his summer vacation will be spent exploring, playing and generally speaking having fun, that is when he is not busy trying to increase my grey hair. During that time, he will get a reprieve from the pressure to perform masculinity in a specific way, because all his father and I care about is his happiness and safety. Some boys don't even have the safe space that Mayhem has because of gay and trans panic. If we really believe that childhood is a protected class, we would not invest as much time as we do into the gender binary, because it is limiting and hurtful. Children should feel free to express themselves and to investigate the world in safe ways.
I love to paint my nails. Right now they are an awesome lime green. Every time I pull out my nail polish, Mayhem stares at my hands and asks me if he can touch them when they are dry. One day he finally built up the courage to ask if I would paint his nails too. Of course I had no problem with that, and I let him pick the colour he wanted. The unhusband received praise from our friends for allowing his son to walk around with painted nails. This irritated me to no end, but I took it in stride. Is it any wonder that kids learn that certain things are for girls when fathers are complemented for allowing their sons to explore?
When Monday rolled around, Mayhem asked that I remove his nail polish, because he didn't want to be laughed at, at school. He told me that a lot of people think that nail polish is for girls, and because he is a boy, that they would laugh at him. My heart broke for him, but I took the nail polish off as he requested. The weekend rolled around and on Friday night, Mayhem once again asked if I would paint his nails, and if he could pick the colour again. We sat down and he patiently waited for his nails to dry. Throughout the weekend, he went to the park to play with his friends, but on Sunday night he once again asked that I take off his nail polish. He told me that people laughed at him, and called him a girl at the park and that it made him mad.
The next day when he came home from school, he noticed that I had not bothered to put any makeup on. "Your lips look regular mom," he said. I told him that I was not wearing any lip gloss today and he asked me if lip gloss and lip stick are only for girls? I told him that boys can wear anything that they want, but because some people are silly and only believe that girls should wear this, that should he choose to do so outside of the house, that some people would tease him. He put his head down and said okay, but I could see that he was sad. For Mayhem, wearing makeup is about play. He loves vibrant, bright colours and it is just part of an expression of who he is.
What he is learning by this whole experience is that breaking the gender binary in any way comes with social discipline. He knows that his home is a safe space, and that he can be who he wants to be, but acceptance has limits outside of his home. In my mind, this answers the nature vs nurture debate. Social discipline is how we force people to conform and perform gender in the manner in which we have normalized. If a six year old boy cannot wear nail polish or play with his mother's makeup without worrying about being teased and attacked, then the very idea that boys are born with an innate desire to perform certain behaviours is wrong.
Mayhem has 12 days of school left, and I know that his summer vacation will be spent exploring, playing and generally speaking having fun, that is when he is not busy trying to increase my grey hair. During that time, he will get a reprieve from the pressure to perform masculinity in a specific way, because all his father and I care about is his happiness and safety. Some boys don't even have the safe space that Mayhem has because of gay and trans panic. If we really believe that childhood is a protected class, we would not invest as much time as we do into the gender binary, because it is limiting and hurtful. Children should feel free to express themselves and to investigate the world in safe ways.
Labels:
gender binary,
gender identity,
guest post
Tuesday, June 14, 2011
Why the “Transsexual” vs. “Transgender” Debate is Irrelevant to the Fight for Equal Rights
TransGriot Note: Guest Post by attorney Abigail Jensen, editor of the 'Living My Life' blog
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.
Why anti-discrimination statutes don’t use terms like “transsexual” or “transgender”
If you look at federal or state anti-discrimination laws, you'll see something very interesting. Although the primary purpose of the Civil Rights Act of 1964 (including, Title VII, the federal ban on sex, race and other discrimination in employment) was to end discrimination against African-Americans, if you read it, you will see that nowhere does it say that it is illegal to discriminate against African-Americans. Instead, it says that it's illegal to discriminate against anyone on the basis of race. There are two reasons for this approach.
First, using terms like African-American, Hispanic, Asian-Pacific Islander or Native American would lead to difficult, if not impossible, problems of determining in any given situation who fits into the relevant category. For example, I have a friend who identifies as both African-American and Native American. However, upon seeing her, many people may doubt that she is anything but "white." So, where should the cut-off be? Should it 1/8 or 1/64 native or African-American blood, which is the cut-off used by some Native American tribes for tribal membership? Should it be how the person self-identifies? Or should it be whatever a court or jury, employer or shelter operator decides a particular person is? Our courts are already bogged down enough; we don’t need to compound that problem by introducing such difficult, and, ultimately, unnecessary, issues.
Using such vague categories leads us to the second reason why such categories aren’t used in anti-discrimination laws: statutes that are so ambiguous that they allow for arbitrary distinctions and enforcement are "void for vagueness" under the Due Process Clauses of state and federal constitutions. In other words, if whether one person is or isn’t protected depends on distinctions that can’t be made on any sort of objective basis, so that different people may reasonably interpret and apply the law in different ways, the statute is void and unenforceable.
In addition, there is another constitutional problem with using terms like African-American in anti-discrimination laws. If a statute protects only people who fall into one racial category, but not another, what you have done is enshrine in the law the very racial discrimination that you are trying to eliminate. That, in turn, makes the statute unconstitutional as a violation of equal protection under both state and federal constitutions. Therefore, for a statute meant to eliminate racial discrimination to be constitutional, you have to ban all racial discrimination, not just discrimination against the particular minority group or groups you are most concerned about protecting. That’s why the Civil Rights Act of 1964 and other federal, state and local anti-discrimination laws make it illegal to discriminate on the basis of “race,” not particular racial categories. In other words, by protecting everyone against such discrimination, you avoid claims that the statue violates equal protection. The other benefit of that approach relates to the first problem discussed above. By using broad categories like “race,” you eliminate the need to decide what race someone belongs to.
For the same constitutional and practical reasons, the 1964 Civil Rights Act and other anti-discrimination laws don’t ban discrimination against women; instead, they ban discrimination against anyone, male or female, man or woman, based on “sex.”
Lastly, and, perhaps, most importantly, this approach fulfills one of the most important founding principles of our county: the belief in “equal justice for all,” not just the rich, not just whites, and not just men, and not just those who are poor, black or female.
How does this apply to protections for trans people?
What does all this mean when we start talking about protecting members of the trans community (however broadly or narrowly you want to define that community) from discrimination because of who we are? If anti-discrimination statutes intended to protect our community used terminology like “transsexual” or “transgender,” whenever any of us tried to invoke those protections, we would find ourselves in the same endless discussions about what those terms mean and who belongs in which category that have been taking place over the last several months, and which I believe are highly damaging to the goal of ensuring that we can all live our lives as who we are. Any such statute would, thus, be unconstitutional as both “void for vagueness” and a violation of equal protection. Why equal protection? Because everyone has a gender, gender identity and gender expression. Therefore, everyone should be protected against discrimination on that basis, since none of those characteristics are relevant to whether a particular person can do a particular job or should be allowed to buy a house or rent an apartment, regardless of how they identify. (As for the problem of bathrooms and other sex-segregated facilities, see below.)
Consequently, when you look at the proposed Employment Nondiscrimination Act (ENDA) or any of the state or local statutes protecting our community from discrimination, you’ll see that most of them ban discrimination based on “gender identity” or “gender identity and expression,” not based on whether someone is “transsexual” or “transgender.” (A few subsume those categories under the definition of “sexual orientation” and then prohibit discrimination based on that term.) Under this approach, everyone is protected against discrimination based on their gender identity (i.e., the gender they identify as internally), regardless of whether or how that identity is expressed outwardly, and against discrimination based on their appearance, mannerisms and other behavior that are interpreted by others as an expression of gender, regardless of the person’s gender identity. In other words, everyone has a gender identity and a gender expression; therefore, everyone is protected against discrimination on that basis. Thus, the housewife who is too harried with housework and delivering kids to and from school to put on makeup or a dress can’t be kicked out of the grocery store for wearing her husband’s flannel shirt and buzz cutting her hair because she doesn’t have time to care for it (or simply likes it that way.) Similarly, the straight man who, for whatever reason, talks with a lisp or has what others see as effeminate gestures, and the straight woman who has a square jaw, large hands and feet and facial hair, are protected from discrimination simply because someone decides they’re not masculine or feminine enough to qualify as a man or a woman. Those people, too, suffer the effects of prejudice deriving from our society’s gender norms and deserve protection against discrimination just as much as trans people.
(One of the most famous cases relevant to protecting trans people against discrimination involved a cisgender woman, not a trans woman. In that case – Price Waterhouse v. Hopkins, Ann Hopkins was a CPA working for the accounting firm who was eligible to become a partner. She was denied partnership, however, because some of the existing partners thought she was too aggressive for a woman, and needed to dress and act more femininely. When she got to the U.S. Supreme Court, the Court held that Price Waterhouse had violated the ban on sex discrimination under Title VII by discriminating against her because she failed to comply with the “sex stereotypes” held by the existing partners for how women should look and act. This is the legal theory that has since been applied to protect trans people against discrimination under state and federal statutes that ban sex discrimination, even though they don’t explicitly bar discrimination based on gender identity or expression. The best and most recent example of this is Diane Schroer’s decisive victory over the Library of Congress.)
But what about bathrooms?
But what about sex-segregated facilities like bathrooms, locker rooms and showers? Personally, I wish we could do away with such segregation and people could just get over their discomfort and fear concerning their own and other people’s bodies and bodily functions. That’s not likely to happen in my lifetime, however, and sex-segregated facilities are going to continue to exist. So what do we do?
When we are challenged for entering a restroom, it’s because someone doesn’t think we look feminine or masculine enough, or, if you wish, because we look too masculine or feminine, for the sex that restroom is designated for. When those who oppose trans women’s use of women’s restrooms are asked why, they invariably respond with fears about men in the women’s room and the risk of rape or other sexual predation. When pressed, they will usually expand that by explaining that they don’t want anyone with a penis in the women’s room. But, of course, no one knows what genitalia any of us, cis or trans, carries when we use such spaces (at least, not in the absence of criminal activity or a close, personal relationship). Instead, people decide who is a man or a woman based on their perception of the other’s gender expression (clothes, makeup, mannerisms, etc.) and visible portions of the person’s body (face, hands, feet, etc.), and then make the assumption that this person must have a penis or a vagina and, therefore, is a man or a woman. It is this process that leads to masculine women and effeminate men, whether gay or straight, being confronted, ejected and even arrested for using a restroom for which, if anatomy is the determining factor, they are certainly qualified to use. It is also this process that results in post-op trans women, and, less frequently, trans men, being subjected to the same treatment even though a “panty check” would reveal the same genitalia as the intended users of that space. Finally, it is because this process results in even post-op trans people being excluded from sex-segregated facilities to which their genitalia should give them access that limiting trans people’s access to such facilities based on whether they have had genital surgery, or plan to do so at some point in the future, is unworkable. (It also grants doctors, psychiatrists, therapists and/or the government the power to determine who is and is not “woman” or “man” enough to use such facilities, a power I am not willing to cede to anyone.)
So, again, what do we do about sex-segregated facilities? Here’s my proposal: If the statutes we pass bar discrimination based on gender identity and/or expression, then it is unlawful to deny someone access to a bathroom, for example, simply because someone thinks that person’s gender expression isn’t masculine or feminine enough for that space. In other words, if someone is presenting as a woman, she has the right to use the women’s room, and vice versa for men’s rooms, regardless of whether zie is post-op, pre-op or non-op, and regardless of whether zie identifies as transsexual, transgender, genderqueer, crossdresser, drag queen or whatever other gender category zie cares to claim. Since, barring illegal activity or a close, personal relationship, no one knows what’s in another person’s pants, if it’s wrong to exclude a butch, cisgender woman from a women’s room, then it’s equally wrong to exclude anyone expressing hir gender as a woman from that same space. In either case, the exclusion would be based not on the person’s actual anatomy, but on someone else’s assumptions and prejudice about who is “really” a woman. Our country has always opposed unequal treatment based on personal assumptions or prejudices about who is and isn’t entitled to the benefits of our society, and I see no reason that we should deviate from that principle when it comes to sex-segregated facilities. (Of course, the same arguments apply to men’s rooms and people who present as men.)
Okay, you say, that takes care of bathrooms. What about showers and locker rooms where nudity sometimes takes place? Here, I believe the best solution is that proposed in ENDA, since it gives proper respect both to concerns about personal privacy and to each individual’s gender identity. As introduced, ENDA contains a specific exclusion that provides that an employer’s “denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable” would not violate that statute, “provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity” at the time the person was hired or as established by a later notice to the employer “that the employee has undergone or is undergoing gender transition.” (ENDA, Sec.8(a)(3); my italics.) In other words, employers could continue to maintain sex-segregated locker rooms and showers. However, in determining who is allowed access to the men’s or women’s facilities, the employer must recognize the employee’s announced gender identity with the sole exception that, where nudity is “unavoidable,” the employer may require someone whose presence may make other employees uncomfortable to use separate facilities, but only if those separate facilities conform to the person’s gender identity. (In other words, an employer couldn’t make a trans woman use the men’s locker room, or vice versa. Note also, that this could be applied to cisgender, not just trans, men and women. When butch women and effeminate men start getting excluded from the men’s and women’s locker rooms, I suspect that we’ll win over quite a few allies to the idea that segregation based on someone else’s perception of our gender expression is patently ridiculous.)
(Some people reading this may wonder how this principle applies with respect to things like dress codes. Basically, if an employee is hired as a man, ENDA allows the employer to require him to conform to the dress code for men until such time as the employee informs the employer that zie is transitioning to female, or vice versa. (Sec. 8(a)(5).) After the employee transitions to living full time in hir affirmed gender, zie must then conform to the dress code for that gender. This scheme is actually quite elegant and workable in practice. In addition, it has the advantage of not requiring the transitioning employee to prove to the employer that zie is “really” a woman or vice versa by providing a letter from a doctor or therapist, or proving zie has undergone SRS, hormone therapy or any other medical treatment. Instead, it allows the employee complete freedom to work as the person zie knows hirself to be, without interference or second-guessing by anyone else.)
So, there it is. It isn’t necessary to determine whether someone is transsexual, transgender or anything else to provide legal protections for everyone, cis or trans, against arbitrary discrimination because zie doesn’t fit someone else’s concepts of who is “really” a woman or a man, or to determine who can use sex-segregated bathrooms and other facilities. Therefore, I, for one, intend to ignore that debate and get on with the business of enacting fair and just legal protections that allow all of us to simply be who we are.
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.
Why anti-discrimination statutes don’t use terms like “transsexual” or “transgender”
If you look at federal or state anti-discrimination laws, you'll see something very interesting. Although the primary purpose of the Civil Rights Act of 1964 (including, Title VII, the federal ban on sex, race and other discrimination in employment) was to end discrimination against African-Americans, if you read it, you will see that nowhere does it say that it is illegal to discriminate against African-Americans. Instead, it says that it's illegal to discriminate against anyone on the basis of race. There are two reasons for this approach.
First, using terms like African-American, Hispanic, Asian-Pacific Islander or Native American would lead to difficult, if not impossible, problems of determining in any given situation who fits into the relevant category. For example, I have a friend who identifies as both African-American and Native American. However, upon seeing her, many people may doubt that she is anything but "white." So, where should the cut-off be? Should it 1/8 or 1/64 native or African-American blood, which is the cut-off used by some Native American tribes for tribal membership? Should it be how the person self-identifies? Or should it be whatever a court or jury, employer or shelter operator decides a particular person is? Our courts are already bogged down enough; we don’t need to compound that problem by introducing such difficult, and, ultimately, unnecessary, issues.
Using such vague categories leads us to the second reason why such categories aren’t used in anti-discrimination laws: statutes that are so ambiguous that they allow for arbitrary distinctions and enforcement are "void for vagueness" under the Due Process Clauses of state and federal constitutions. In other words, if whether one person is or isn’t protected depends on distinctions that can’t be made on any sort of objective basis, so that different people may reasonably interpret and apply the law in different ways, the statute is void and unenforceable.
In addition, there is another constitutional problem with using terms like African-American in anti-discrimination laws. If a statute protects only people who fall into one racial category, but not another, what you have done is enshrine in the law the very racial discrimination that you are trying to eliminate. That, in turn, makes the statute unconstitutional as a violation of equal protection under both state and federal constitutions. Therefore, for a statute meant to eliminate racial discrimination to be constitutional, you have to ban all racial discrimination, not just discrimination against the particular minority group or groups you are most concerned about protecting. That’s why the Civil Rights Act of 1964 and other federal, state and local anti-discrimination laws make it illegal to discriminate on the basis of “race,” not particular racial categories. In other words, by protecting everyone against such discrimination, you avoid claims that the statue violates equal protection. The other benefit of that approach relates to the first problem discussed above. By using broad categories like “race,” you eliminate the need to decide what race someone belongs to.
For the same constitutional and practical reasons, the 1964 Civil Rights Act and other anti-discrimination laws don’t ban discrimination against women; instead, they ban discrimination against anyone, male or female, man or woman, based on “sex.”
Lastly, and, perhaps, most importantly, this approach fulfills one of the most important founding principles of our county: the belief in “equal justice for all,” not just the rich, not just whites, and not just men, and not just those who are poor, black or female.
How does this apply to protections for trans people?
What does all this mean when we start talking about protecting members of the trans community (however broadly or narrowly you want to define that community) from discrimination because of who we are? If anti-discrimination statutes intended to protect our community used terminology like “transsexual” or “transgender,” whenever any of us tried to invoke those protections, we would find ourselves in the same endless discussions about what those terms mean and who belongs in which category that have been taking place over the last several months, and which I believe are highly damaging to the goal of ensuring that we can all live our lives as who we are. Any such statute would, thus, be unconstitutional as both “void for vagueness” and a violation of equal protection. Why equal protection? Because everyone has a gender, gender identity and gender expression. Therefore, everyone should be protected against discrimination on that basis, since none of those characteristics are relevant to whether a particular person can do a particular job or should be allowed to buy a house or rent an apartment, regardless of how they identify. (As for the problem of bathrooms and other sex-segregated facilities, see below.)
Consequently, when you look at the proposed Employment Nondiscrimination Act (ENDA) or any of the state or local statutes protecting our community from discrimination, you’ll see that most of them ban discrimination based on “gender identity” or “gender identity and expression,” not based on whether someone is “transsexual” or “transgender.” (A few subsume those categories under the definition of “sexual orientation” and then prohibit discrimination based on that term.) Under this approach, everyone is protected against discrimination based on their gender identity (i.e., the gender they identify as internally), regardless of whether or how that identity is expressed outwardly, and against discrimination based on their appearance, mannerisms and other behavior that are interpreted by others as an expression of gender, regardless of the person’s gender identity. In other words, everyone has a gender identity and a gender expression; therefore, everyone is protected against discrimination on that basis. Thus, the housewife who is too harried with housework and delivering kids to and from school to put on makeup or a dress can’t be kicked out of the grocery store for wearing her husband’s flannel shirt and buzz cutting her hair because she doesn’t have time to care for it (or simply likes it that way.) Similarly, the straight man who, for whatever reason, talks with a lisp or has what others see as effeminate gestures, and the straight woman who has a square jaw, large hands and feet and facial hair, are protected from discrimination simply because someone decides they’re not masculine or feminine enough to qualify as a man or a woman. Those people, too, suffer the effects of prejudice deriving from our society’s gender norms and deserve protection against discrimination just as much as trans people.
(One of the most famous cases relevant to protecting trans people against discrimination involved a cisgender woman, not a trans woman. In that case – Price Waterhouse v. Hopkins, Ann Hopkins was a CPA working for the accounting firm who was eligible to become a partner. She was denied partnership, however, because some of the existing partners thought she was too aggressive for a woman, and needed to dress and act more femininely. When she got to the U.S. Supreme Court, the Court held that Price Waterhouse had violated the ban on sex discrimination under Title VII by discriminating against her because she failed to comply with the “sex stereotypes” held by the existing partners for how women should look and act. This is the legal theory that has since been applied to protect trans people against discrimination under state and federal statutes that ban sex discrimination, even though they don’t explicitly bar discrimination based on gender identity or expression. The best and most recent example of this is Diane Schroer’s decisive victory over the Library of Congress.)
But what about bathrooms?
But what about sex-segregated facilities like bathrooms, locker rooms and showers? Personally, I wish we could do away with such segregation and people could just get over their discomfort and fear concerning their own and other people’s bodies and bodily functions. That’s not likely to happen in my lifetime, however, and sex-segregated facilities are going to continue to exist. So what do we do?
When we are challenged for entering a restroom, it’s because someone doesn’t think we look feminine or masculine enough, or, if you wish, because we look too masculine or feminine, for the sex that restroom is designated for. When those who oppose trans women’s use of women’s restrooms are asked why, they invariably respond with fears about men in the women’s room and the risk of rape or other sexual predation. When pressed, they will usually expand that by explaining that they don’t want anyone with a penis in the women’s room. But, of course, no one knows what genitalia any of us, cis or trans, carries when we use such spaces (at least, not in the absence of criminal activity or a close, personal relationship). Instead, people decide who is a man or a woman based on their perception of the other’s gender expression (clothes, makeup, mannerisms, etc.) and visible portions of the person’s body (face, hands, feet, etc.), and then make the assumption that this person must have a penis or a vagina and, therefore, is a man or a woman. It is this process that leads to masculine women and effeminate men, whether gay or straight, being confronted, ejected and even arrested for using a restroom for which, if anatomy is the determining factor, they are certainly qualified to use. It is also this process that results in post-op trans women, and, less frequently, trans men, being subjected to the same treatment even though a “panty check” would reveal the same genitalia as the intended users of that space. Finally, it is because this process results in even post-op trans people being excluded from sex-segregated facilities to which their genitalia should give them access that limiting trans people’s access to such facilities based on whether they have had genital surgery, or plan to do so at some point in the future, is unworkable. (It also grants doctors, psychiatrists, therapists and/or the government the power to determine who is and is not “woman” or “man” enough to use such facilities, a power I am not willing to cede to anyone.)
So, again, what do we do about sex-segregated facilities? Here’s my proposal: If the statutes we pass bar discrimination based on gender identity and/or expression, then it is unlawful to deny someone access to a bathroom, for example, simply because someone thinks that person’s gender expression isn’t masculine or feminine enough for that space. In other words, if someone is presenting as a woman, she has the right to use the women’s room, and vice versa for men’s rooms, regardless of whether zie is post-op, pre-op or non-op, and regardless of whether zie identifies as transsexual, transgender, genderqueer, crossdresser, drag queen or whatever other gender category zie cares to claim. Since, barring illegal activity or a close, personal relationship, no one knows what’s in another person’s pants, if it’s wrong to exclude a butch, cisgender woman from a women’s room, then it’s equally wrong to exclude anyone expressing hir gender as a woman from that same space. In either case, the exclusion would be based not on the person’s actual anatomy, but on someone else’s assumptions and prejudice about who is “really” a woman. Our country has always opposed unequal treatment based on personal assumptions or prejudices about who is and isn’t entitled to the benefits of our society, and I see no reason that we should deviate from that principle when it comes to sex-segregated facilities. (Of course, the same arguments apply to men’s rooms and people who present as men.)
Okay, you say, that takes care of bathrooms. What about showers and locker rooms where nudity sometimes takes place? Here, I believe the best solution is that proposed in ENDA, since it gives proper respect both to concerns about personal privacy and to each individual’s gender identity. As introduced, ENDA contains a specific exclusion that provides that an employer’s “denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable” would not violate that statute, “provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity” at the time the person was hired or as established by a later notice to the employer “that the employee has undergone or is undergoing gender transition.” (ENDA, Sec.8(a)(3); my italics.) In other words, employers could continue to maintain sex-segregated locker rooms and showers. However, in determining who is allowed access to the men’s or women’s facilities, the employer must recognize the employee’s announced gender identity with the sole exception that, where nudity is “unavoidable,” the employer may require someone whose presence may make other employees uncomfortable to use separate facilities, but only if those separate facilities conform to the person’s gender identity. (In other words, an employer couldn’t make a trans woman use the men’s locker room, or vice versa. Note also, that this could be applied to cisgender, not just trans, men and women. When butch women and effeminate men start getting excluded from the men’s and women’s locker rooms, I suspect that we’ll win over quite a few allies to the idea that segregation based on someone else’s perception of our gender expression is patently ridiculous.)
(Some people reading this may wonder how this principle applies with respect to things like dress codes. Basically, if an employee is hired as a man, ENDA allows the employer to require him to conform to the dress code for men until such time as the employee informs the employer that zie is transitioning to female, or vice versa. (Sec. 8(a)(5).) After the employee transitions to living full time in hir affirmed gender, zie must then conform to the dress code for that gender. This scheme is actually quite elegant and workable in practice. In addition, it has the advantage of not requiring the transitioning employee to prove to the employer that zie is “really” a woman or vice versa by providing a letter from a doctor or therapist, or proving zie has undergone SRS, hormone therapy or any other medical treatment. Instead, it allows the employee complete freedom to work as the person zie knows hirself to be, without interference or second-guessing by anyone else.)
So, there it is. It isn’t necessary to determine whether someone is transsexual, transgender or anything else to provide legal protections for everyone, cis or trans, against arbitrary discrimination because zie doesn’t fit someone else’s concepts of who is “really” a woman or a man, or to determine who can use sex-segregated bathrooms and other facilities. Therefore, I, for one, intend to ignore that debate and get on with the business of enacting fair and just legal protections that allow all of us to simply be who we are.
Labels:
civil rights,
guest post,
legal/justice,
transgender issues
Saturday, May 28, 2011
Mike Alvear Teaches How Not to Date A Trans Woman
TransGriot Note: This guest post is courtesy of Renee of Womanist Musings As you all know, I am a cisgender woman in a long term relationship. This means that I have no idea about the various issues that trans women face when it comes to dating and in fact being in a relationship means that when it comes to dating I am the equivalent of a fish out of water. I do however have the good sense to see when someone has left the arena of friendly advice, and gone straight into demeaning and oppressive. From beginning to end, Mike Alvear the so-called Sexorcist, gets it wrong.
Let's start with the letter itself which claims to be interested in a woman who "is clearly in the process of or has already been sexually reassigned to a female." This immediately left me questioning, because while some women do go through an awkward stage, many pass successfully (please note: I hate the word pass but am unaware of a word that can be substituted). Something about the letter itself did not feel right and this feeling only intensified as I read the response.
Dear In Love,
You can always break the ice with jokes like, "Do you know where they put pictures of missing transsexuals? On cartons of half-and-half!" Or, "What do you call a transsexual woman with a strap-on? Nostalgic!" I kid. So, all you trannies out there, hold your fire.
It's unclear whether you want to meet her to be friends, date or have a swollen, slapping session of T-sex. I'm going to go out on a limb and assume you want to date her. In that case, you need to follow some general common-sense rules.
First, look your best. You're dealing with somebody who takes extraordinary measures to look like an appealing woman. She is going to expect her men to have some pride in their appearance.
I would also haul out your inner gentleman. T-girls are often even more feminine than G-girls (genetic). If you want to impress her, a robust application of manners will take you a long way. Whatever you do, don't try to get her in bed right away. One friend begged his T-date to go home with him with this classic line: "Come on, you can't get pregnant!" It didn't work.
Close your mouth before you catch a fly. Yes, this was supposedly advice on how to date a trans woman. Even as a cis woman who has made mistake after mistake, I can see the issues with this. Telling a transphobic joke and then using a slur to tell a group of people to be quiet about your bigotry is beyond offensive. You don't get to use a slur and then demand silence. So much for TLBG unity on this one. In case you are wondering, Alvear is a gay man.
If he has simply stuck to stressing not to fetishize the woman that the advice seeker was interested in, he would have been on point, but his continual use of the term "t girl," along with the suggestion that trans women treat femininity as some sort of artifice to be preformed, rather than just a simple expression of who they are, tells me that this man has no business discussing trans women period. Femininity much like masculinity, is a social construction because we are all raised from birth to perform our assigned genders, regardless of whether or not we feel that this performance matches who we are as individuals.
His privilege further comes shining through when he asserts that T-girls are often even more feminine than G-girls (genetic). Really? What makes this man think that he has the right to sit in judgement of femininity period? Oh I know, not content with spewing transphobic hatred in public, he had to throw in a touch of sexism for extra spice and to round out his privilege. This is about disciplining behaviour and it is not complimentary to get into a debate about who is more feminine simply because when it comes to trans women and cis women, the operative word is women. We are all women and we certainly do not need any man to decide who is and is not doing it better. It is also an extremely inflammatory and divisive comment to make beause it encourages us to see difference rather than commonality. This is not to say that trans women and cis women experience womanhood in the exact same fashion but that as women we share similar experiences despite whatever differences we may have. Mike Alvear is simply engaging the ever popular divide and conquer strategy to support his privilege.
I must say that none of this is surprising from a man who describes himself as a resident of Midtown, who "lives with Zack, his 60-pound girlie-boy vizsla, who likes to prance around Piedmont Park like a pre-op trannie". I can only wonder when people will realize that comedy does not hide bigotry and in fact, only silences those who are socially marginalized, because then we are deemed to be unable to take a joke. Nothing Alvear had to say was amusing or even remotely helpful, because while suggesting to the advice seeker that he should be respectful of trans women, Mike completely forgot to do so himself. You cannot give advice, until you learn how to be respectful of the group that you are speaking about.
Wednesday, February 23, 2011
Cristan Williams-Transsexual not Transgender: A Paroxysm of Histrionics
Cristan Williams is one of our kick azz leaders here in the Houston area and executive director of the Transgender Foundation of America. She was part of the team that recently got Covenant House Texas to come up with a written policy that mandates respectful treatment of TBLG clients.
So fresh off that success, she tried to dialogue with the WWBT's and their current spokesmodel.
I'll give you a taste and link to her post describing what happened when she attempted to try and reason with the 'transsexuelle uber alles' crowd.
I give up. I’ve tried time and time again to dialogue with those in the transsexuals aren’t transgender camp! Every time I try to instigate a dialogue, they flip out.
First, I notice that the TS-not-TG camp loves to segregate the trans community into a TS/IS (IS = intersex) camp and crossdressers + everyone else is into some other camp that can never be associated with TS people. I thought that this was funny because some non-Houston IS people freak out when TS people try to group TS and IS people together.
I’ve tried over and over again to engage this segregationist group in dialogue and I guess today I finally have had enough of trying to talk to them. They’re exactly like trying to talk to a young-earth creationist fundi. Today, I once again tried to reach out to this group and, for the last time, had the door slammed in my face:
So fresh off that success, she tried to dialogue with the WWBT's and their current spokesmodel.
I'll give you a taste and link to her post describing what happened when she attempted to try and reason with the 'transsexuelle uber alles' crowd.
I give up. I’ve tried time and time again to dialogue with those in the transsexuals aren’t transgender camp! Every time I try to instigate a dialogue, they flip out.
First, I notice that the TS-not-TG camp loves to segregate the trans community into a TS/IS (IS = intersex) camp and crossdressers + everyone else is into some other camp that can never be associated with TS people. I thought that this was funny because some non-Houston IS people freak out when TS people try to group TS and IS people together.
I’ve tried over and over again to engage this segregationist group in dialogue and I guess today I finally have had enough of trying to talk to them. They’re exactly like trying to talk to a young-earth creationist fundi. Today, I once again tried to reach out to this group and, for the last time, had the door slammed in my face:
Saturday, February 19, 2011
Dilemma Or Decision-Sandy Rawls Speaks
TransGriot Note: Sandy Rawls is the Executive Director of Trans-United in Baltimore.
There has been an ongoing controversy in the trans community there and nationwide around the fact that Equality Maryland penned and introduced HB 235, a trans civil rights bill that does not cover public accommodations.
Sandy made the decision to pull her organization's support for the bill and explains why in this guest post.
Trans-United is a respected voice for many people in Baltimore City and Maryland. But when Trans-United's voice is used to give political cover for a problematic piece of legislation, the dilemma that is occurring is causing political and emotional backlash and discord in our community.
I've heard the various voices in our community expressing their concerns about Maryland HB 235 and the lack of public accommodations language. I did as the executive director of Trans-United what Equality Maryland should have done in the first place before introducing this bill and consulted with the community and an attorney well versed in civil rights law..
There has been an ongoing controversy in the trans community there and nationwide around the fact that Equality Maryland penned and introduced HB 235, a trans civil rights bill that does not cover public accommodations.
Sandy made the decision to pull her organization's support for the bill and explains why in this guest post.
DILEMMA OR DECISION?
By Sandy Rawls, Executive Director Trans-United
As the executive Director of Trans-United, a grass-roots community based resource and advocacy program based in Baltimore I was faced with a tough decision.
As the executive Director of Trans-United, a grass-roots community based resource and advocacy program based in Baltimore I was faced with a tough decision.
Do I support Maryland House Bill 235 or see it for what it is, a feel good tranquilizer that won't help my community, which a dilemma by all means.
Trans-United is a respected voice for many people in Baltimore City and Maryland. But when Trans-United's voice is used to give political cover for a problematic piece of legislation, the dilemma that is occurring is causing political and emotional backlash and discord in our community.
It is also a dilemma
that can have damaging consequences to the transgender community’s push for equal
rights not only in our state but across the nation as well..
I've heard the various voices in our community expressing their concerns about Maryland HB 235 and the lack of public accommodations language. I did as the executive director of Trans-United what Equality Maryland should have done in the first place before introducing this bill and consulted with the community and an attorney well versed in civil rights law..
After hearing from a majority of the community who have urged us to oppose the bill and having the attorney confirm that HB 235 would not protect the Maryland transgender community from discrimination, I made the painful decision to withdraw Trans-United's support for this bill and oppose it.
While I am the Executive Director and face of Trans-United, this organization is a community based one first and foremost. That means we belong
to this community, not political endeavors who would seek to use it as cover for their political propaganda purposes or to push a bill that is harmful to the transgender community of Maryland. .
The community should have had their voices heard by Equality Maryland before Maryland HB 235 was introduced, especially in light of the fact that the wounds still haven't healed from the transgender community being cut out of a previous inclusive bill in 2001 that only protects GL Marylanders.
The community should have had their voices heard by Equality Maryland before Maryland HB 235 was introduced, especially in light of the fact that the wounds still haven't healed from the transgender community being cut out of a previous inclusive bill in 2001 that only protects GL Marylanders.
Because that wasn't done and the current wording of HB 235 reflects that, I am deeply
saddened that I can’t support the bill this session. Perhaps those Equality Maryland people who are the lead advocates for the bill will learn from their mistake and try a more
all inclusive approach next time.
My fears are also shared by the community that HB 235 will have a negative effect on future transgender community civil rights legislation. If we try an incremental rights approach that we know has failed elsewhere and accept a flawed bill just to say we passed something, I fear that when we try to amend this bill, an opposing legislator will say in the future, ”If public accommodation did not need to be
in the bill back then, why does it need to be amended in now?”
What will we say in response to that question?
.
.
This is why we need to have public
accommodations language in Maryland House Bill 235 in this 2011 session, not 2012, 2013, 2014, 2020 or whenever Equality Maryland deems it important enough to push to amend it in.
And in the meantime while they dither, our community will continue to suffer from anti-transgender discrimination we desperately need legislative relief from.
Labels:
civil rights,
guest post,
transgender issues
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