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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.

Tuesday, July 15, 2008

Fear and Loathing in Gainesville, Florida

According to the college newspaper at the University of Florida in Gainesville, Florida, a local group opposing the recently-passed gender identity civil rights ordinance will have enough signatures by July 29 to put the issue to the voters. It sets out the opponents' objections in great detail.

Paradoxically, I think this well-written article is of immense value to proponents of gender identity law and policy, and should be scrutinized with care. It is an excellent categorization of some of the strongest arguments marshalled against gender identity laws and policies. While proponents feel strongly that such arguments are incorrect, their ability to counteract such arguments in the court of public opinion has been limited, as demonstrated by the removal of gender identity from the federal ENDA bill this past year.

The reason that it has been so hard to counteract these arguments is because they are based on prejudices. Social research, such as that by Gordon Allport, shows that prejudices do not change based on logical arguments, because they are emotional beliefs not susceptible to change by means of reason. Rather, prejudice is inversely related to intergroup contact, that is, the more people are in contact with the hated group, the less prejudice exists within those people. The mechanism is assumed to be that people will see with their own eyes and through their own experience that the negative judgments are not as generally true as they had been led to believe. Other researchers have found that reducing prejudice in the classroom setting cannot be effected by arguing logically with expressions of prejudice, but is most effectively done by supressing such expressions, in addition to providing education on the issues. This is why civil rights laws are important in themselves as a means of reducing prejudice, even at the same time that education must be provided in order to pass the law. Prejudice feeds on itself, and repetitions of prejudicial actions breed more prejudice, which is not susceptible to logical argument. Reading the arguments of the law's opponents, one sees that the arguments themselves are based on a worldview in which these arguments make plenty of sense, if one has no experience whatsoever of transgender people or gender identity law on which to base one's judgment. Let us examine the community organization's objection to the Gainesville ordinance.

The community organization is Citizens for Good Public Policy. The organization's website is http://citizensforgoodpublicpolicy.org/. The organization's main argument is based on the premise that gender identity is psychological in nature, rather than tied to biological sex. Therefore, it is not susceptible of objective proof, and the law allows anyone, including sexual predators, to gain access to private women's spaces if they claim that they have an "inner sense" of being female. The website further argues that, based on statistics, there are likely less than 10 transgender people in Gainesville, but there are 263 registered sex offenders, thereby placing women and children at risk. I enjoy good statistical research, as it can be more persuasive than anecdotal evidence. In fact, I teach research methods. However, there are three categories of statistical flaws that most commonly show up in erroneous research: flawed research question or hypothesis, errors in data collection, and improper assumptions about the connection between the evidence and the ultimate conclusion. This shows signs of all three.

"The ordinance defines gender identity as “an inner sense of being a specific gender...with or without regard to the individual’s sex at birth.” In practice this means a male can follow a female of any age into a female restroom and/or wait inside for her to enter and be legally protected in doing so. If a police officer were called to have the male removed from the restroom, the innocent female would be advised that the male has just as much legal right to be in the restroom as she. This troubling and potentially dangerous practice will also negatively affect businesses, who stand to lose patrons and/or find themselves in the middle of legal disputes between offended parties."

The article quotes an official of the group, who expresses concerns that the ordinance does not require any form of registration or official proof of being transgender, other than simply saying so, which can lead to people taking advantage of the ordinance.

This is a novel twist on an old argument. Variations of this argument have been used in Montgomery County, Md. and other places.) The usual argument is that transgender people themselves are sexual predators seeking to gain access to women's spaces. The twist here is that there is no claim that transgender people are sexual predators, but there are those who will take advantage of the law to prey on women and girls. Thus, the argument is not based on any inherently negative quality of transgender people themselves, but upon the possibility that others with nefarious intent will game the system.

In another article, the following example was given by the Thomas More Law Center, a non-profit law firm working with the Gainesville group: "For example, Tampa Police arrested Robert Johnson in February 2008 for hanging out in the women’s bathroom at ‘Lifestyle Fitness’ and watching women in an undressed state. The ‘gender identity’ category, which is unique to the City of Gainesville, would provide legal protection to a similar offender in Gainesville." The Thomas More Law Center is mistaken in its assertion that the gender identity category is unique to Gainesville, as Key West, Monroe County, West Palm Beach and Largo have gender identity civil rights laws. More significantly, notably absent from the example given is any false claim of gender identity. The accused, a teenager, claimed that he had not realized that he had entered the women's room, and, afraid to be seen, had hidden until he worked up the courage to emerge, when he was spotted. Thus, it is not necessary to invent a new gender identity in order to work up a defense for a male in a female dressing room. In fact, a false defense of non-traditional gender identity can be easily disproven because those who have a non-traditional gender identity typically have worked with health professionals and others who can document a prior expression of non-traditional gender identity. Thus, if someone were acting as Mr. Johnson did, and then claimed to police that he had a female gender identity, it would be easy for that person to give evidence of a prior expression of female gender identity.

I saw this "gaming the system" argument when I trained 300 homeless shelter staff for the New York City Department of Homeless Services. In each training session of about 20 people, there were one or two staff members who loudly proclaimed that they were not prejudiced, but that they had long experience with the homeless, and some guys would do anything to get with the women. I patiently explained that there were several documented examples of transgender people being abused in the system, and no examples of women being abused by transgender people (or those falsely claiming to be). They had no information to the contrary, but refused to budge. After a while, I sensed that their arguments had nothing to do with logic, and were related to stereotypes and fears that I could not reach. Ultimately, I had to argue that I was there to inform them about the Department's policy, not to change their minds.

I have heard this objection about "gaming the system" not only in the homeless shelter environment, where violence and fears of violence are daily realities, but also in corporate and school settings in which violence had never occurred. I addressed this argument in my book:

From "Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals", Book Surge Publishing (2007), page 16 (section II):

"Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: what if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.

My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law.

Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not. "

The logic of the argument against the ordinance rests upon an assumption that those who are registered sex offenders will use false claims of gender identity disorder to gain access to women's spaces in order to commit sex crimes. This assumption is disproven by experience. There are 13 states and a hundred cities with gender identity civil rights ordinances, beginning with Minneapolis in 1975. There are over 491,000 registered sex offenders in the U.S. There are over 270,000 sexual assaults per year in the U.S. How many cases involving false claims of gender identity disorder in order to commit sexual assault have there been in any year? Zero.

I also note that the idea that statistics suggest there are only 10 transgender people in Gainesville, a city with a population of 115,000, is mistaken. There might only be a few out transgender people, particularly if the area is very conservative (as I understand it is). However, depending upon how one defines transgender, there could be as many as 1,000 transgender people in a city of that size. The number of post-operative transsexuals, however, might be closer to 10.

This objection deserves little credence. I have been tossing around the idea of doing a study on the issue, and have written a research design. Unfortunately, my time has been taken up by other things, and I don't think I'm in a position to do all the work by myself, but this is pretty important. If anyone is interested in working with me on such a study, please get in touch. You don't have to be an academic to help.

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