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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.

Friday, December 15, 2006

More on the NJ law

I made a mistake yesterday in writing that the language included "gender identity and expression." The bill used the phrase "gender identity OR expression." "OR" might seem an unimportant word, but if you asked for either ketchup OR mustard on your hotdog and you got both ketchup AND mustard, you'd know why OR is an important word.

Thus, using the "OR" formulation, I am protected from discrimination whether I identify as a sex different from my sex assigned at birth, OR if I simply express my gender in a nontraditional fashion.

Also, it turns out that the version on the NJ Legislature website wasn't the actual text of the bill that was passed. The correct version is here: http://www.njleg.state.nj.us/2006/Bills/S0500/362_I1.HTM The main difference seems to be that the language in 10:5-5 (rr) regarding "transgender status" was removed. As you saw from my post yesterday, I was a bit concerned about the "transgender status" language.

Here's an except from a letter from Lisa Mottet, legislative lawyer for the Transgender Civil Rights Project of the National Gay and Lesbian Task Force. In it, she delineates why the language should be removed, and I think she did an excellent job of explaining clearly and comprehensively why the term "transgender" is not useful for legislative drafting.

However, the amendment that would add "Gender identity or expression includes transgender status" is inadvisable and I urge the Senate to reconsider its inclusion.

My understanding is that this amendment was suggested to clarify who was intended to benefit from this legislation. While laudable in goal, the consequences of including this phrase are unpredictable, and I and my colleagues fear potentially damaging.

During my review of this amendment, I communicated with two other transgender rights legal experts, Shannon Minter, Legal Director of the National Center for Lesbian Rights, author of Transgender Equality: A Handbook for Activists and Policymakers (2000) and editor of Transgender Rights (University of Minnesota Press, 2006), and Cole Thaler, Staff Attorney for Transgender Rights at Lambda Legal. I also conferred with the National Center for Transgender Equality. I am authorized to pass on our joint concerns to you as the Senate and Assembly further consider this legislation and amendments.

There are several interrelated reasons I and my colleagues are concerned. The first reason is that the meaning of the term "transgender" is in constantly in flux and is likely to be historically limited. The term "transgenderist" was developed decades ago to refer to people who crossdressed but did not want or could not access sex reassignment surgery. Over the following decades, "transsexual" was reserved for people who had surgery and "transgender" meant those who did not. "Transvestite" was often used as an umbrella term. In the 1990s, transgender started to become an umbrella term that referred to the entire community: transsexuals, crossdressers,
androgynous people, and gender-nonconforming people. "Transsexual" came to mean anyone who transitions from one gender to the other socially and/or medically
(surgery not required).

Although most LGBT activists still use the term "transgender" as an umbrella term, in my experience, the general public and LGBT people who are not activists tend to believe that transgender and transsexual are precise synonyms. In addition, there is much current debate within the LGBT community about whether or not the term "transgender" inherently includes "gender non-conforming people." Different LGBT and transgender organizations use these terms differently. For example, the Sylvia Rivera Law Project, a legal services group for transgender people in New York, consistently uses “transgender and gender non-conforming people” instead of just "transgender" as my organization chooses to do.

As another demonstration of how quickly this term is changing meaning, in 2000 my
organization published Transgender Equality and in it, we included drag queens,
drag kings and intersex people in the transgender umbrella. In our 2003
publication, Transitioning Our Shelters: A Guide to Making Homeless Shelters
Safe for Transgender People, we made the decision to remove those identities
from the definition of transgender. If history is to be any guide, I expect the
definition of transgender within the transgender community, in the LGBT
community, and in the larger public arena will continue to be debated. And, I
believe the meaning of the term will continue to evolve, and it is possible that
it will fall out of use entirely.

Moreover, I am concerned that "transgender" may not retain its positive, non-derogatory meaning. In an example from the transgender context, in the early 1980s, Seattle passed a trans-inclusive nondiscrimination law using the broad term (they thought): transvestite. This term has since taken a negative and more limited connotation, causing the Seattle City Council to need to revise its nondiscrimination law only about twenty years later. Terms from other contexts involving groups of people who experience discrimination that demonstrate my concern about popular terminology acquiring a negative connotation include "colored people" and "handicapped." "Transgender" may not always have a positive connotation and may
fall out of favor.

The second concern is that the bill, before the amendment, utilized the best approach for discrimination protections: it used terminology that covers all people, rather than a specific, protected group of people. American non-discrimination laws are generally framed to prohibit discrimination on the basis of certain characteristics, like sex or race, not specific examples of people within those categories, like women or African-Americans. Just as it was unnecessary and would have been inadvisable to add "Race includes black status" to race discrimination laws, this "transgender status" clarifying amendment could unintentionally have a
limiting or confusing effect on interpretations of the law. Adding just this one
group-based identity to the bill’s language makes the bill conceptually
incoherent and inconsistent with similar laws; either problem could negatively
affect the interpretation of its provisions.

Our third concern is that this language is out-of-step with other laws protecting transgender and gender non-conforming people from discrimination. Eight states have passed similar laws, and none of them use the term "transgender people" or any similar term. No other state legislature, administrative agency or court has found that this type of clarifying amendment was necessary, nor has there been confusion that transgender people are not covered by these laws. Also, in drafting the federal Employment Non-Discrimination Act, which is expected to be introduced
this Spring, the LGBT attorneys involved in drafting, including myself,
specifically rejected using the term "transgender" for many of the reasons
covered in this letter. For consistency throughout the nation, and for New
Jersey to be in-step with the federal bill that will eventually become law, it
is best that New Jersey use relatively similar language. With similar language
throughout the U.S., courts can utilize each other’s interpretations to develop
a common case law that all jurisdictions can draw upon. For your reference, the
definitional language of the eight states is attached as an Appendix.

Our fourth concern is about the term "status." How it would be interpreted in this context is unclear. Would transgender people have to prove that they have achieved "status?" Would someone in the early stages of transition (often when discrimination occurs) qualify as having attained that status? "Status" implies a fixity that does not capture or address the reality of discrimination against transgender people.

Our fifth concern is not about New Jersey's interpretations, but is about future
interpretations of other state and federal laws. Including this term in New
Jersey's law could cast doubt on what is covered by laws in other jurisdictions
that do not include such language. It could beg the question, are transgender
people not covered if the law only includes "gender identity or expression?"
From a national perspective, the language used in New Jersey could influence
other jurisdictions to either adopt the same language (cause for concern by
itself for the above-mentioned reasons) and/or could negatively affect the
interpretation of similar laws that lack New Jersey's additional

Thus, in conclusion, nondiscrimination laws should use terminology that is not subject to historical limitations and that is sure to cover everyone exhibiting the protected characteristic, regardless if they are amongst the class or group of people most often discriminated against. Furthermore, New Jersey’s statutory scheme is best served by adopting language similar to those eight other states that have already enacted protections based on gender identity and/or expression. No other state has used the term "transgender" or "transgender status" in its discrimination law and doing so opens up the bill to unknown and potentially negative interpretations in the future.


In an appendix to the letter, she adds the definitions for each state law on the books. That's a useful thing to have all in one place, so I'm adding it here.

California (2003)
Cal. Gov’t Code § 12926(p):
“Sex” includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person's gender, as defined in Section 422.56 of the Penal Code.

Cal. Penal Code, § 422.56:"Gender" means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.

Hawai’i (housing and public accommodations discrimination only) (2005)
HI ST § 515-2:
"Gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.

Illinois (2005)
775 ILCS 5/1-102:
“Sexual orientation” means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth. "Sexual orientation" does not include a physical or sexual attraction to a minor by an adult.

Maine (2005)
ME ST T. 5 § 4553(9-C):
“Sexual orientation means a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.

Minnesota (1993)
Minn. Stat. Ann. § 363A.03(44):
“Sexual orientation means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness. “Sexual orientation” does not include a physical or sexual attachment to children by an adult.

New Mexico (2003)
N.M. Stat. Ann. § 28-1-2(Q):
“Gender identity” means a person’s self-perception, or perception of that person by another, of the person’s identity as a male or female based upon the person’s appearance, behavior or physical characteristics that are in accord with or opposed to the person’s physical anatomy, chromosomal sex or sex at birth.

Rhode Island (2001)
R.I. Gen. Laws § 11-24-2.1(l):
The term “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.

Washington State (2006)
Wash. Rev. Code § 49.60.040 (15):
“Sexual orientation” means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a 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 sex assigned to that person at birth.

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