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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Thursday, March 30, 2006

Issue: What Does "Transgender" Mean?

I am glad to report that this blog is proving popular. I started this weekend and as of last night there were more than 400 hits. And I received an email from a reader yesterday morning, who raised the issue of surgical intervention.

"I was disappointed that you equated 'transgender' with'transitioning'. . . your dissertation [on your personal website] contains a much more nuanced understanding of the term 'transgender.' My main concern is that the equation of 'transgender' with 'transitioning' will not take into account those who do not or cannot have surgery."

This is an important point, and one that deserves mention. The most complex issue for HR and Diversity professionals is that of a transgender employee who is transitioning from one gender to another on the job. That issue merits a lot of discussion, but it is not the only issue. It is incorrect to say transgender = transitioning.

I find the definition from the Oxford English Dictionary useful: "identity that does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these." Although this elides some issues, it points up today's issue: "transgender" is not the same as "transition." There are many transgender people who have inconsistent or androgynous gender presentation, or simply have internal feelings that are transgender.

With this in mind, it is important for HR and Diversity professionals to note that protection of "gender identity" does not refer to surgical intervention. Most statutes defining "gender identity" make reference to a formulation similar to NYC's Human Rights Code: "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."

The main idea contained in this jaw-cracking formulation is that it prohibits discrimination based on a person's gender identity, self-image, etc. whether or not different from "birth sex." In other words, the subject of the law is my view of myself as female, male, or other. This self-determinative view is to be honored, despite the fact that my birth certificate says "male" or "female." This makes discrimination based on my female gender identity illegal, regardless of my anatomical sex now or in the past. Like it or not, that is what the plain words of the statute appear to mean.

Such statutory formulations rely on a distinction between "sex" and "gender." This can be confusing for some, because for a long time, no distinction was made between these two, and the words represented the same thing. In the 1950s, some academicians began to note the possibility that these two could be separate. This idea has gradually seeped into the culture, and to anyone who attended college in the past ten years, it is probably old hat. For the rest of us, however, it is very new hat. To put it in non-academic language, "sex" is between the legs, and "gender" is between the ears. Based on this distinction, one may not discriminate based on the fact that someone identifies as a female, acts like a female, looks like a female -- regardless of what anatomical configuration he or she may have. In addition, this would also seem to cover those who who have inconsistent or androgynous gender presentation, or simply have internal feelings that are transgender. For example, this may apply if it becomes known to the employer that the employee enjoys cross-dressing at home. Since cross-dressing at work may contravene dress codes, this area is less clear. See Rosa v. Park West Bank for an example of a court addressing "crossdressing", albeit in the different context of lending discrimination. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=992309.

To some of you, who are very liberal, this presents no problem. You may be of the opinion that one's gender identity is a personal matter. It is important for liberals to note that our society has had a dual-gender system for eons, and that system change requires more than one's personal opinion. To others, who are more conservative, this raises many concerns about system change. What about facilities usage*, like bathrooms, locker rooms and shower rooms? What about K-12 teachers? Female-only rape crisis counseling groups? Courts and other government bodies have begun to grapple with these questions, creating some important precedents.

Transgender workplace diversity raises many issues, social, organizational and legal. I will respect the blog format and not try, though I am tempted, to raise and answer all of these questions right now. Suffice it to say that I will address these issues as they come up, and I am writing a law review article on the subject. If you have any specific questions, please feel free to make a comment by clicking on the word "Comment" below.

*If you want to see a sample policy for facilities usage that discusses the reasons for not using surgery as a factor, see http://phobos.ramapo.edu/~jweiss/policy.htm#_Toc130383572.

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