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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.

Monday, October 1, 2007

ENDA: The Sound of One Hand Clapping

Yesterday, after several days of lobbying by many LGBT organizations to the Democratic leadership, it was announced that gender identity would not be pulled from ENDA. I am as pleased tonight as I was upset yesterday, and I take back all those petty, ungenerous thoughts.

The mobilization of so many organizations to retain the transgender community in ENDA created an opportunity for legislators to be educated about the meaning and importance of gender identity. In fact, I heard from those in the know that part of the reason that some legislators expressed hesitancy about supporting a gender-inclusive ENDA was that they were not sure what "gender identity" meant.

By this, I assume, they did not refer to a mere definition, as there is one in the bill and they've been hearing about this for months. Rather, I take it that they did not understand the importance and significance of including it. And this is no surprise to me, as I have spent the last several years leading full-day trainings and marathon policy meetings with corporate leaders who also had a hard time understanding this, even though on another level they surely did understand, as they were paying me to explain it to them in full. The significance of "gender identity" to the project of anti-discrimination law is much more than its definition. On this point, a page of history is worth a volume of logic, as Supreme Court Justice Oliver Wendell Holmes famously said.

In 2001, Taylor Flynn,a prominent lesbian attorney and professor of law (now at Northeastern University) published an essay in the influential Columbia Law Review. [TRANSforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 10 COLUM. L. REV. 392 (2001).] She argued that transgender rights should be included as a central issue in the struggle for sex and sexual orientation equality, rather than relegated to the periphery. Her essay analyzed a series of court cases on sexual orientation issues, including workplace, public accommodation, asylum, marriage, and custody cases. She demonstrated that, without a more accurate and multifaceted understanding of sex and gender, sexual orientation law is significantly hampered in its ability to address the core of sex and sexual orientation discrimination. That core, according to Professor Flynn, is hostility based on failure to conform to conventional gender norms. Courts conflate sexual orientation and gender premised upon the traditional understanding of "sex," as determined by anatomy at birth. The presumption typically following from this reduction of sex to anatomy is the notion that certain gendered attributes are inherent in biological male- or femaleness. Thus, protection of sexual orientation without protection of gender identity and gender expression leads to a jurisprudence in which lesbians and gay men receive with the right hand, while it is taken away with the left.

Legislators have a primarily political function. Though many are lawyers, few are legal scholars, and they may not grasp the legal implications of their actions down the road. They have not read the burgeoning case law on this subject, nor are many of them clear about the nuances of LGBT identity that may influence court decisions of tomorrow. At this point, they are up to their necks in trying to get the thing passed, and the Taylor Flynns of the world are left to worry about the nuances. But both the legislators and Flynn have the same ultimate goal - ensuring that the law protects the GLBT community from employment discrimination. The significance of gender identity to ENDA must not go unnoticed if that goal is to be reached.

To those legislators who have not previously concerned themselves with understanding gender identity, I say now is the time for understanding. For long centuries, transgender expression was seen as a version of gay expression, and it only in the past fifty years that the two began to be considered separate. (The history of this is clear.) In fact, the first statute on this issue, Minnesota's 1975 statute, subsumed gender identity in its definition of "affectional preference." (Minneapolis Municipal Code, Title 7, Chapter 139.20 Affectional preference: Having or manifesting an emotional or physical attachment to another consenting person or persons, or having or manifesting a preference for such attachment, or having or projecting a self-image not associated with one's biological maleness or one's biological femaleness.) However, as the 60s turned into the 70s, the idea that being gay and being transsexual were qualitatively different came to be increasingly regarded as true, and that generation of gay men, lesbians and transsexuals are ones who, in my experience, are most likely to hold it. This idea had taken firm root by the 80s, and the first statute to explicitly refer separately to the term "gender identity" appeared in Seattle in 1986. Thus, the idea that "sexual orientation" and "gender identity" are severable is one with great appeal to those coming of age at that time.

The younger generation, however, may not all hold this opinion so firmly. In my recent article in The Journal of Lesbian Studies, I point out that there are signs of a growing convergence between sexual orientation and gender identity among the younger generation, such as changing meanings of ‘lesbian’ and ‘FTM’, blending of sexuality and gender, and understanding these as personal, rather than identity, differences. The tension between identities, the need to distinguish clearly between them, and the arguments about who is ‘really’ lesbian or ‘really’ transgender are increasingly unimportant to a new generation. Thus, the notion that sexual orientation and gender identity are completely unrelated is increasingly rejected by the next generation of the queer community. To them, the idea of a radical separation between sexual orientation and gender identity held by their elders appears bizarre and dated.

I am not arguing that one should conflate sexual orientation and gender identity. However, the idea that gender identity has no relationship whatsoever to sexual orientation is problematic (and, in many parts of the world, clearly incorrect). Riki Wilchins of GenderPAC has argued forcefully and, I believe, correctly, that "gender is a gay issue," meaning that the oppression of gays and lesbians occur primarily because of their failure to fit into stereotypical gender norms. In other words, the oppression of gays and lesbians occurs primarily when straight people see an effeminate gay man or a masculine lesbian -- when their gendered behavior is in question. Such oppression is not on the basis of sexual orientation, because it is not based on that person’s partner, but that person’s gender expression. Thus, not only transgenders, but also gays and lesbians are oppressed on the basis of gender, making gender a gay issue.

To those legislators who are now trying to figure out the significance of gender identity in ENDA, I suggest that they begin to understand it, not as a separate category to be accommodated as a form of identity politics, but as an intrinsic moiety of the larger whole that is the GLBT community. The question is not, "what is gender identity?" but rather, "what is sexual orientation without gender identity?"

I say it is the sound of one hand clapping.

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