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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.

Sunday, October 21, 2007

Would ENDA Protect?

Marti Abernathey over at Bilerico has a great post: Would ENDA Protect? She poses the question of which version of ENDA would protect a modern-day Paul Lynde, complete with video. For younger readers, Mr. Lynde was one of the great television personalities of the mid-twentieth century. That got me to thinking about the specific language in ENDA protecting gender expression. It struck me as a bit unusual when I first read it, as I mentioned when it was first introduced. It's different from most U.S. state and local laws. Like Paul Lynde and the characters he affected, it is an odd choice of words: mannerisms

In most state and local laws, the phrase "gender identity or expression" is used. This phrase first began appearing in the late 1980s. The first statute to explicitly refer separately to the term "gender identity" appeared in Seattle in 1986. Prior to that, transgender identity was thought of as a part of homosexual identity. For example, 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.)

"Gender identity" is generally defined to mean something along the lines of actual or perceived gender, which includes 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. (That's Rhode Island's definition. If you want to see more, see the letter from Lisa Mottet http://transworkplace.blogspot.com/2006/12/more-on-nj-law.html)

The many phrases in this definition are meant, I believe, to illustrate the ways in which gender manifests. "Identity" refers to one's outward identification as male or female (or both or neither), "self-image" seems to refer to one's internal identification to one's self as male or female, "appearance" refers to outward signs such as makeup, hairstyling, and clothing, and "expression" suggests behaviors, such as manner of speaking and walking.

In that definition, Lynde would be protected by the "gender-related expression" part. As I have understood his self-definition, he was born a male, identified as a male and his self-image and appearance were male. However, his "gender-related expression" could be seen as feminine (or, using the more pejorative but more prevalent term, effeminate). Of course, it could equally be argued that being male does not include only one way of expression, and that it would be unduly restrictive to put his style outside of the realm of masculine expression. Nonetheless, our society does have gendered modes of expression, and whether or not it is possible or desirable to discard these, they currently exist, as does prejudice in favor of those who conform to these gendered modes.

By contrast, in HR 2015, it says in Section 3a-
6: The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

I haven't seen that term "mannerisms" used in a statute or ordinance before. How does "mannerisms" differ from "expression"? I offer here the Oxford English Dictionary definition of "expression" relevant to this discussion: "The action or process of manifesting (qualities or feelings) by action, appearance or other evidences or tokens." Judges do not, and should not decide on the meaning of laws by merely consulting a dictionary. Dictionaries do, however, provide important evidence as to the meaning of the words used in statutes. Thus, "gender expression" would refer to the action or process of manifesting gender by action, appearance or other evidences or tokens." This would presumably include manner of speaking that manifests a gendered meaning, such as in the Lynde example.

If one looks at the OED on "mannerisms," one finds quite a different story:

"1. The adoption, to a pronounced or (according to some writers) excessive degree, of a distinctive style, manner, or method of treatment, esp. in art and literature. 2. A habitual peculiarity of style or manner; an idiosyncratic habit, gesture, way of speaking, etc. 3. Psychiatry. An ordinary movement, expression, or gesture which becomes abnormal through exaggeration or repetition, usually as a symptom of mental disorder.

Definition 2 is the one that is invoked by this law (though the others color the meaning and cannot be entirely ignored). Thus, "gender-related mannerisms" would refer to gender-related "habitual peculiarity of style or manner, and idiosyncratic habits, gestures, ways of speaking, etc. The Dictionary, as usual, gives a series of quotes to illustrate this usage.

"a1834 S. T. COLERIDGE Lit. Remains (1836) II. 378 Hints obiter are: not..to permit beauties by repetition to become mannerisms. 1841 MACAULAY in W. B. Scoones Four Centuries Eng. Lett. (1880) 537 You were less tolerant than myself of little mannerisms. 1873 W. BLACK Princess of Thule xi. 178 Her harsh way of saying things..is only a mannerism. 1893 Times 29 Apr. 13/3 He has abandoned his mannerisms and been content to make a beautiful picture. 1908 E. M. FORSTER Room with View i. 13 Of course, he has all his father's mannerisms, and it is quite possible that he, too, may be a Socialist. 1960 C. DAY LEWIS Buried Day ii. 33 Both his mannerisms and his taciturnity ingrained in him by some crying need for self-protection. 1985 J. MORRIS Last Letters from Hav v. 41 He has..an odd mannerism of pursing his mouth between sentences. 1997 H. KUREISHI Love in Blue Time 159 They copied Rocco's mannerisms and peculiar dress sense, wearing, for instance, a jean jacket over a long raincoat or fingerless gloves."

These quotes stress the peculiarity of "mannerisms", giving them much a more unconventional and unusual tone than the "expression" used in most modern statutes.

The American Heritage Dictionary echoes this idea, distinguishing "mannerism" from other similar nouns as follows:

"These nouns refer to personal behavior assumed for effect. An affectation is artificial behavior, often adopted in imitation of someone, that is perceived as being unnatural: "His [Arthur Rubinstein's] playing stripped away . . . the affectations and exaggerations that characterized Chopin interpretation before his arrival" (Michael Kimmelman).
Pose denotes an attitude adopted to call favorable attention to oneself: His humility is only a pose.
Air, meaning a distinctive but intangible quality, does not always imply sham: The director had an air of authority.
In the plural, however, it suggests affectation and self-importance: The movie star was putting on airs.
Mannerism denotes an idiosyncratic trait or quirk, often one that others find obtrusive and distracting: His mannerism of closing his eyes as he talked made it seem as if he were deep in thought.

Dictionary.com, listing several definitions from other sources, refers to mannerisms as "annoying," "ebullient," "excessive," "unusual," "affected," "exaggerated,"
and "odd."

I wonder at the use of the term "mannerisms" in HR 2015. The meaning seems to be clear enough, but a bit of the pejorative clings to it. Odd, indeed.

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