First Fruits of the Trans-Free ENDA

Scales on their eyes...

From now on, no one will understand what we're talking about. It's already begun, the LGB, without a "T". Practically speaking, "written in stone"...

 

                                                                        Phyllis

I'd rather be a lion for one day, than a sheep for my entire life.

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by: PhyllisMs @ Thu Nov 29, 2007 at 23:46:28 PM CST

Pessimist

I'm a pessimist...so maybe I should mention this for a "ray" of hope. I'm sure many of you have already seen the story about the Commander. Do you think this will help our inclusion into a near future gender inclusive ENDA?

Maybe this will aid our "T":

Rejecting the federal government's attempt to throw
out a transgender veteran's sex discrimination lawsuit against the
Library of Congress, a federal judge ruled today that the case can go
forward. The American Civil Liberties Union brought the lawsuit in
June 2005 on behalf of 25-year U.S. Army veteran Diane Schroer who... ...etc.

I'd rather be a lion for one day, than a sheep for my entire life.

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by: PhyllisMs @ Thu Nov 29, 2007 at 23:53:37 PM CST

In Context

The ultimate decision was that the Title VII complaint would NOT be dismissed... and that the discrimination based on non-conformity with sexual steorotypes still constitutes sex discrimination under Title VII.  In fact, the judge holds that he doesn't have to decide if transgenderism itself is protected under Title VII before making the observation that it might not be.  This decision does not represent any negative change in the law.

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by: tony2 @ Fri Nov 30, 2007 at 15:30:45 PM CST

No, this wasn't caused by the trans-free ENDA

Should Title VII be found inapplicable to this person's circumstances, which is still unknown, the judge will have to take into account that Congress took up a bill that would have solved her problem but rejected it.

As I'm sure you recall, there was a debate before either bill was ever carried to committee about whether it could hurt anything to try to pass an inclusive ENDA knowing that we might well have it amended down or fail.

We have an answer: Yes, it can hurt Diane Schorer. Whether it costs her job specifically is an open question, depends on whether Title VII is interpreted as protecting against this particular act of discrimination.

I wanted badly to be wrong. 

But wait, there's more!

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by: PhoenixRising @ Fri Nov 30, 2007 at 18:08:30 PM CST

and so it comes

So, not only will we not get an ENDA. as it is now dead in the Senate but the precious few protections that we won in decisions like Tronetti v. TLC that pretty much protected everyone who could claim the discrimination was based upon failutre to conform to gender stereotype are lost.  A fragmented community and fewer protections that we possessed to being with---what a victory! It certainly pust the lie to the statements of those like Chris Crain.

I tell you Chica that no greater abomination exists than women denying their spirit of sisterhood and instead becoming the oppressor. -Rebeca, Universidad Complutense de Madrid

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by: MauraHennessey @ Sat Dec 01, 2007 at 14:10:46 PM CST

wish we had a better test case

I feel for Diane Schroer, and I hope she wins-- But-- I hear from lots of transsexuals who feel she mishandled her own transition in a way that does not bring credit on us. She interviewed and got the job offer as a man. Only then did she spring her little surprise on her boss-to-be. She may not have lied, but the way she went about it would give a poorer impression of her honesty than if she had been up front about it, either interviewed as a woman, or saved her transition until after she'd established herself as a good employee. Try to see it from the boss's point of view, apart from the trans issue: It looks as though she played bait-and-switch. Her timing was unwise, and it might harm her case when she gets her day in court. We need test cases that win us clear-cut sympathy.

Here's what I find about compromise--
don't do it if it hurts inside,
'cause either way you're screwed,
eventually you'll find
you may as well feel good;
you may as well have some pride

--Indigo Girls

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by: Hypatia @ Sat Dec 01, 2007 at 17:52:37 PM CST

I don't agree

that "the intent of Congress is clear".  Only the House has entertained the ENDA bills.  Half of Congress, the Senate, remains silent on the issue.  All that is clear is that ENDA is an unsettled issue.  The judge acknowledged that this isn't a very powerful piece of the puzzle by stating

in an age when legislative history has been dramatically devalued as a tool for statutory interpretation

i'm optimistic.

Click HERE and sign up: Campaign For Military Partners.

Lurleen on Twitter.

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by: Lurleen @ Sat Dec 01, 2007 at 19:26:26 PM CST

What the Federal Courts have ruled in the Recent Past

I'm not. Optimistic that is.

Schroer's case now depends very much on the Price Waterhouse decisions on stereotyping.

From the original judgment on Etsitty vs Utah Public Transport: See http://www.aele.org/law/2005FPSEP/etsitty.html

Since the decision in the Ulane case, members of Congress have repeatedly tried to amend Title VII to prohibit discrimination based on sexual orientation, and all of these attempts have failed.
The court in Oiler v. Winn-Dixie Louisiana, Inc., 2002 U.S. Dist. Lexis 17417, 2002 WL 31098541 *4 n. 53 (E.D.La. Sept. 16, 2002) (listing proposed bills), noted that from 1981 through 2001, thirty-one proposed bills were introduced in the United States Senate and the House of Representatives which attempted to amend Title VII to prohibit employment discrimination on the basis of affectional or sexual orientation. None of them passed. The rejection of these proposed amendments indicates that Congress intended the phrase in Title VII prohibiting discrimination on the basis of sex to be narrowly interpreted. A narrow interpretation would exclude protection for transsexuals. This court agrees with the rationale of the Ulane court when it stated as follows:

In our view, to include transsexuals within the reach of Title VII far exceeds mere statutory interpretation. Congress had a narrow view of sex in mind when it passed the Civil Rights Act, and it has rejected subsequent attempts to broaden the scope of its original interpretation. For us to now hold that Title VII protects transsexuals would take us out of the realm of interpreting and reviewing and into the realm of legislating.

... If Congress believes that transsexuals should enjoy the protection of Title VII, it may so provide. Until that time, however, we decline in behalf of the Congress to judicially expand the definition of sex as used in Title VII beyond its common and traditional interpretation.

...If the term “sex” as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress.

In our view, to include transsexuals within the reach of Title VII far exceeds mere statutory interpretation. Congress had a narrow view of sex in mind when it passed the Civil Rights Act, and it has rejected subsequent attempts to broaden the scope of its original interpretation. For us to now hold that Title VII protects transsexuals would take us out of the realm of interpreting and reviewing and into the realm of legislating.

... If Congress believes that transsexuals should enjoy the protection of Title VII, it may so provide. Until that time, however, we decline in behalf of the Congress to judicially expand the definition of sex as used in Title VII beyond its common and traditional interpretation.

...If the term “sex” as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress.

This reasoning, based on past Congressional rejections of GLB-only protection, has been strongly reinforced by explicit deletion of transgender protection now. 

Worse, this is the court's decision on a Price Waterhouse argument: 

There is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman. Such drastic action cannot be fairly characterized as a mere failure to conform to stereotypes.

Taken to the extreme, the theory in the Smith case would mean that if an employer cannot bar a transsexual male from dressing and appearing as a woman (because it would be sex stereotyping under Price Waterhouse), then a non-transsexual male must also be allowed to dress and appear as a woman. In fact, if something as drastic as a man’s attempt to dress and appear as a woman is simply a failure to conform to the male stereotype, and nothing more, then there is no social custom or practice associated with a particular sex that is not a stereotype. And if that is the case, then any male employee could dress as a woman, appear and act as a woman, and use the women’s restrooms, showers and locker rooms, and any attempt by the employer to prohibit such behavior would constitute sex stereotyping in violation of Title VII. Price Waterhouse did not go that far.

If this is precedent, then no Price Waterhouse argument can succeed.

 

There is no situation so complex it can't get even worse

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by: ZoeB @ Sun Dec 02, 2007 at 02:54:36 AM CST

[ Parent ]

"a transsexual male"

Notice they still don't get it.

Here's what I find about compromise--
don't do it if it hurts inside,
'cause either way you're screwed,
eventually you'll find
you may as well feel good;
you may as well have some pride

--Indigo Girls

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by: Hypatia @ Sun Dec 02, 2007 at 07:56:04 AM CST

[ Parent ]

What We Can Do to Fix the Damage

I'm not into blogging and thus don't know how to post a new item on this website.  On Thursday, I sent the following e-mail to Autumn, hoping she would post it for me.

Before getting to that e-mail, I want to note that Diane Schroer is a dream plaintiff for a lawyer.  If you saw her on 20/20, she has an excellent persona, presents extremely well (she doesn't exude a guy-in-a-dress image), and is very articulate.  More importantly, the way the facts played out, there is absolutely no doubt why she isn't presently employed at the LofC.  You couldn't pray for a better fact pattern.  What you would have prayed for was to have her living in one of the states with a law with a law barring gender identity discrimination.

It is interesting that this "after the fact" legislative history is precisely the type of legislative history that the conservative block on the US Supreme Court don't like.  Nonetheless, they will also give Title VII a non-expansive reading and read "sex" extremely literally and narrowly.

The legislative history that worried me in the past was the Americans With Disabilities Act, with two sections of the law saying "transvestites" aren't covered, one section saying "transsexuals" aren't covered (with a limited exception for gender identity disorders), and another section saying "homosexuals" aren't covered.

 ****

Hi Autumn,
 
Two news items passed through my inbox today [Thursday].  The first, with a positive sounding subject line, was a press release from the ACLU, advising that federal Judge Robertson issued his second opinion in Diane Schroer's lawsuit against the Librarian of Congress.  See http://www.aclu.org/lgbt/transgender/32896prs20071128.html.  As you know, the ACLU is representing Diane. 
 
I immediately went to read Judge Robertson's opinion, wherein he again decided that Diane's case should not be dismissed and should proceed forward toward trial.  See http://www.aclu.org/images/asset_upload_file132_32894.pdf.  While it is great to see that the Court is allowing Diane's lawsuit to proceed, it is sad to see that the judge's decision was negatively impacted by the recent jettisoning of gender identity from the ENDA bill.  The ACLU's press release understandably didn't mention the damage done to our community.
 
Let me explain.  In Judge Robertson's first opinion, issued 20 months ago (see http://www.aclu.org/images/asset_upload_file95_24842.pdf), he laid out a novel theory that "sexual identity" (which, IMHO, is not the best way to refer to gender identity, though the judge did also refer to gender dysphoria) is part-and-parcel of the concept of "sex" as that word is used in Title VII of the Civil Rights Act of 1964.
 
This was a positive development because I believe the the other theory used to protect "trans" people under Title VII  --  "sex stereotyping" under the Price Waterhouse line of cases  --  doesn't hold water in the case of gender identity.  [This is because the employer isn't going to hire any "transsexuals", whether male or female.]  I think it does hold water in the case of gender expression.
 
In his opinion issued yesterday, Judge Robertson indicated that his conviction regarding his novel reading of Title VII in his first summary judgment opinion was weakened by the new legislative history emanating from Congress with respect to ENDA over the last few months.  See pages 9 to 10 in his second opinion.
 
We have only the HRC to blame for this.  They committed to a trans-inclusive ENDA, having made a calculated decision.  I was not in agreement with HRC's 2004 decision because I felt a trans-free ENDA had far better chance of moving through Congress and, pragmatically, I'd like to see 95% of the LGBT community protected sooner than none at all for several more years.  Like it or not, trans people are the Willie Horton of today's hatemongers.
 
When the House had hearings on ENDA a few months ago, HRC didn't present a single witness who has personally dealt with gender dysphoria.  So much for trying to make a case for a trans-inclusive ENDA.
 
Because of HRC's lack of moral courage, we have ended up with the clearly foreseeable fallout that has begun to appear, as evidenced in Judge Robertson's latest opinion.  HRC has put trans people, especially folks with gender dysphoria, in a worse position than they were before.
 
The second item I read today is the interesting article "Transforming Coverage: Transgender issues get greater respect -- but anatomy remains destiny", by Fairness & Accuracy in Reporting.  See http://www.fair.org/index.php?page=3216.
 
As the article notes, and as reflected on this blog, there has been a major, positive shift in media portrayals of trans people.  We still have, as the article notes and we all know all-to-well, the prurient interest in the "sex change operation", which seems to be a fixation of Larry King.
 
As we move beyond the current ENDA debate, I'd like to suggest that we can better improve the dialogue of discourse, and our chances of procuring state and federal legal protections for trans people, if we start to use language that better reflects who people with gender dysphoria are and the journey they travel.
 
Let's start with jettisoning the word "transsexual".  To many, it is just as pejorative as the term "transvestite".  In our community, we don't use the word transvestite anymore.
 
More importantly, what does "sexual" have to do with gender dysphoria?  Nothing.  It is not pc to use the word "homosexual"; yet "sexual" does have a fair degree to do with sexual orientation!  Here again, HRC (as well as other groups) does us a disservice.  HRC stays 100 miles away from the word "homosexual", but will easily use the word "transsexual".
 
Of course Larry King is fixated on genitalia and sexual functioning!  We give credence to this because we don't distance ourselves from "transsexual".
 
I don't want to read another article or see another HRC video that says someone had a "sex change operation".  For most, the operation isn't what decides our sex and gender.  We were born with a birth condition that deviated from the norm and some may have corrective surgery, no different from other corrective surgeries many people have to fix so-called "birth defects".
 
In reality, we all are born with some sort of "variability in sex development".  (I still can't figure out why some intersex folks now want to have their medical condition called a "disorder of sex development".  I don't care for "gender identity disorder"!) 
 
If we buy into the concept that there is a norm that is perfection (e.g., blue-eyed blond), then we undermine our fight for the right to be who we are and to express ourselves accordingly.
 
Call the surgery what it is:  "genital reconstructive surgery" (GRS).  Not sex or gender reassignment surgery.  GRS is a 100% accurate description of the surgery.  Moreover, it eliminates the belief that one has to have a sex-change operation in order be gender-affirmed.
 
And stop calling folks "MtFs" and "MtFs".  These folks are simply (and, in some cases, finally) accepting who they have always been.  As Leah Zicari sings:
 

     This is me

     This is who I am

     This is where I come from

     And who I've always been

In reality we aren't transversing (the "trans" in "transsexual") anything.  We are merely affirming who we are.  So let's use terminology consistent with this reality (if, in fact, we so need to define ourselves):  "gender affirmed females" and "gender affirmed males", who go through "a process of gender affirmation" (not a "transition").
 
Critics tell me that the average person won't understand these positive words of affirmation.  Some might not, but in time they will.
 
My experience has been 99% positive.  I have yet to meet a single person who didn't understand what I was saying in a conversation when I used these words.  Indeed, using words of affirmation allows you to open a conversation in a positive way, without the otherwise immediate image that comes to mind if you start the conversation with words such as "transsexual" and "sex change operation".
 
If you haven't tried this new language, go ahead and try using these words when you are explaining gender dysphoria to someone who doesn't know you.  I'm sure you will see how more positive the conversation will be.  And in time, people will be less confused about gender identity and less likely to ask "well, isn't gender dysphoria a type of (or the same as) sexual orientation?"
 
If all of us start to use words of affirmation, in time major newspapers and magazines will update their style manuals and their writers will start to use the words as well.

Take care Autumn!
 
Christine

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by: christine @ Sun Dec 02, 2007 at 08:58:21 AM CST

It sounds very positive to me...

Thank you. The best I've heard yet on the issue of our sex or identity. I never liked the word "transgender", and likewise I felt the same about "trans" in the transgender(Quote:"In reality we aren't transversing (the "trans" in "transsexual") anything". Unquote), because my gender remains consistant, as stated: 

This is me

This is who I am

This is where I come from

And who I've always been... 

We're getting closer but we're not home yet. We keep getting different terminology, like the "gender varient" which arose sometime back, another term I don't personally use for myself. Transsexual worked well for me for a time.

 I learned to hide a part of me due to harassment and hazing but nothing was moving or changing from one to another. My identity of who I was and what I was like, the real me, was always, me. I didn't feel like a transgender, but, it's been a long road, actual comprehension of my gender begining around 6 or 7 years old but the descriptions and nailing it down to one specific thing has been confusing and frustrating, ever since I first read the word "transvestite" at 13 years old and learning, "there's others similar to me", all along trying to associate myself with one of the descriptions, trying to figure out what I was, who I was, all the way up to "transgender" with which I never could sincerely identify. I always affirmed with myself I was a girl. ( I like that word, affirmed. ) 

Thank you again Christine. Personally, I like your political take on it and it feels like it would be a positive move for us legally, politically and for us in societal perceptions. It would also be nice not to have the mental health industry tag us, but let us tell them who we are, since we should know more than anyone. I like these sayings. You make some very valid points and while the book is still being written on us, we do need to keep thinking and being wise, and unify, about how others, (HRC, Congress, Judges, etc. ) are deciding our confluence, in society and within the rights guarenteed it's citizens by this country.  

I admit, I have used the term "transgender" for discussion in public because it was easier and left out "sex" which I didn't want to talk about so I know how that feels to have to address "transsexual" in a social setting.

 I will begin to use these terms right away, because I like moving away from the "trans" in "transgender" and the sex thing too. I look forward to hearing what others say about this.

(Wow, I feel like my mom just corrected me, teaching me proper etiquette. Now, I know more how to act. I know more about me and I like the reference to female which is lost in all those other terminologies. ) I'm a female, a "gender affirmed female"

 Let us continue navigating our destiny...

When navigating a ship one must know their course

I'd rather be a lion for one day, than a sheep for my entire life.

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by: PhyllisMs @ Sun Dec 02, 2007 at 17:55:20 PM CST

[ Parent ]

More on Language

Hi Phyllis,

You hit a key point, one I still struggle with.  We have becomes so use to the T terminology and the easy acronym LGBT that we use them unthinkingly, simply as an expedient to move the discussion along. 

I do a fair amount of speaking on workplace issues.  I explain the terminology of affirmation and people who ask questions use those words back to me, even though I have used both sets of words in my presentation.  They do appreciate the nuance, and they try to respect me as a person by using the words I feel most comfortable with. 

Nonetheless, I occasionally fall back into the habit of using the words "transition" and "transgender".  You see those words everyday, so it is hard not to use them.  Indeed, I occasionally use my former "male" name by mistake, especially when I'm cursing at myself for doing something really stupid.  In time the new words become natural and flow easily.

I haven't come up with a better word for "transgender" that I'm happy with.  I'm leaning toward "gender fluid" and "multi-gendered".  I think the former is a bit better; something about "mutli" bothers me, though I have been using "multi-gender" in my presentations because I talk about 15 continuums (e.g., race, ancestry, culture, physical size) and geometry creeps in.

In fact, Phyllis, you have prompted me to make a choice this morning:  henceforth, I will use "gender fluid" until someone offers me a better word for "transgender".  I will update my PowerPoint today, including a slide that reads:

"Gender identity, gender expression, sexual orientation, and biological sex are very distinct concepts, but ultimately they are totally interrelated in a four-dimensional matrix, where each person finds a place on each of the four continuums, creating a unique point that represents the special person that person is.  And that point can, and does, change over time as we experience life.

"All people are GENDER FLUID.  By recognizing our diversity, we see our similarity in our common humanity."

I hope others will chime in with their thoughts on a T-free language.

Warmly,

Christine

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by: christine @ Mon Dec 03, 2007 at 07:43:57 AM CST