I've been invited this weekend to a symposium sponsored by the University of Wisconsin Law School's Journal of Law, Gender and Society, on the subject of Transcending Gender Lines: Title IX and Transgender Rights. I thought I'd take a break from my recent series on filing employment discrimination complaints to talk about Title IX and transgender students.
There are a lot of other fabulous people coming, and the full line up is here.
My paper is entitled "Protecting Transgender Students: Application of Title IX to Gender Identity or Expression and the Constitutional Right to Gender Autonomy." The bottom line of this paper? If you're filing a case to protect transgender students' rights to proper forms of address, dress codes, facilities usage and protection from invasive questioning, then you can't count on Title IX alone. You should also file a claim under the U.S. Constitution for the right to gender autonomy.
You may remember me banging on about the "right to gender autonomy," in a post right here on The Bilerico Project, some years ago when I was writing a law review article on it. That article eventually was published in the Touro Journal of Race, Gender and Ethnicity. Anyway, after the jump is my brief take on the application of this constitutional right to Title IX and transgender students. There are a few typos -- it's just a conference draft -- but look for a much expanded and polished version this coming Fall in the Wisconsin Journal of Law, Gender and Society.
Reposted from Bilerico.com. Click here to read more...
Showing posts with label Dr. Weiss Articles and Interviews. Show all posts
Showing posts with label Dr. Weiss Articles and Interviews. Show all posts
Saturday, February 23, 2013
Friday, September 11, 2009
National LGBT Bar Association Panel: Constitutional Gender
The National LGBT Bar Association Conference begins today. Much interesting grist for the mill here.
I will be presenting in a panel on constitutional rights to gender autonomy today, along with three highly-regarded law professors whose work in this area is very interesting.
My presentation will center on the right to privacy, and the full-length article will be coming out this Fall in the Touro Journal of Gender, Race and Ethnicity. The title of the article is "Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas."
Others will discuss rights to due process, equal protection, the First Amendment and question whether positing "a right to gender autonomy" is the right question in the first place.
In a nutshell, my opinion is that there is a constellation of issues that comprise a potential "right to gender autonomy," and that the "right to privacy" is the wellspring.
There are two strands of constitutional jurisprudence from which this right develops: the first is a right of self-determination of gender, based on privacy cases that promoted self-determination of private decision-making of important life choices, and the other is a right of self-identification of gender, based on other privacy cases that promoted privacy protection of sensitive information .
“The right to gender autonomy” may therefore be defined as the right of self-determination of one’s gender, free from state control, and the right to self-identify as that gender, free from state contradiction.
However, there is a problem with this idea: it's not clear how it squares with the US Supreme Court's landmark 2003 decision in Lawrence v. Texas, which found that the right to privacy protects gay relationships from being marked as criminal by the state. That case has been taken by many as meaning that the right to privacy hinges on the relationship aspect, which marks a "fundamental" right. Since being transgender involves no relationship aspect, upon what is the state intruding that would be considered private?
I started looking at this issue in my 2001 law review article, in which I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy”, an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy.
This article looks to review the work that has been done since that time on the issue of substantive due process as it has been discussed in regard to the right of gender autonomy, and also focusing specifically on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas3, impacts this putative right to gender autonomy.
I suggest that my 2001 argument in favor of gender autonomy as a fundamental right, while potentially valid, has been devitalized by Lawrence. Instead, Lawrence has made a “rational basis” standard of review not only possible for the right of gender autonomy, but much stronger than an argument in favor of a “fundamental right” approach, or any attempt to mix the two.
This “heightened” rational basis, an approach that has previously been seen in equal protection jurisprudence as “minimal scrutiny with bite,” clarifies the ambiguities and opacity that have plagued interpretation of Lawrence. It sidesteps the problems created by a judiciary that is looking to avoid recognition of new “fundamental rights.”
If this is correct, then the emphasis of advocate of gender autonomy should not be on trying to prove the existence of a “fundamental right,” but on trying to identify the putative state interests that can be asserted in favor of gender regulations that refuses to recognize sex reassignment, and explaining how they are either illegitimate or have insufficient rational nexus to the law.
Legal and social advocates for a right of gender autonomy should further pursue detailing the factual record and historical analysis that demonstrates the long history of legal and social gender autonomy.
You can download the materials for the session in a zip file by clicking here.
I will be presenting in a panel on constitutional rights to gender autonomy today, along with three highly-regarded law professors whose work in this area is very interesting.
My presentation will center on the right to privacy, and the full-length article will be coming out this Fall in the Touro Journal of Gender, Race and Ethnicity. The title of the article is "Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas."
Others will discuss rights to due process, equal protection, the First Amendment and question whether positing "a right to gender autonomy" is the right question in the first place.
In a nutshell, my opinion is that there is a constellation of issues that comprise a potential "right to gender autonomy," and that the "right to privacy" is the wellspring.
There are two strands of constitutional jurisprudence from which this right develops: the first is a right of self-determination of gender, based on privacy cases that promoted self-determination of private decision-making of important life choices, and the other is a right of self-identification of gender, based on other privacy cases that promoted privacy protection of sensitive information .
“The right to gender autonomy” may therefore be defined as the right of self-determination of one’s gender, free from state control, and the right to self-identify as that gender, free from state contradiction.
However, there is a problem with this idea: it's not clear how it squares with the US Supreme Court's landmark 2003 decision in Lawrence v. Texas, which found that the right to privacy protects gay relationships from being marked as criminal by the state. That case has been taken by many as meaning that the right to privacy hinges on the relationship aspect, which marks a "fundamental" right. Since being transgender involves no relationship aspect, upon what is the state intruding that would be considered private?
I started looking at this issue in my 2001 law review article, in which I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy”, an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy.
This article looks to review the work that has been done since that time on the issue of substantive due process as it has been discussed in regard to the right of gender autonomy, and also focusing specifically on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas3, impacts this putative right to gender autonomy.
I suggest that my 2001 argument in favor of gender autonomy as a fundamental right, while potentially valid, has been devitalized by Lawrence. Instead, Lawrence has made a “rational basis” standard of review not only possible for the right of gender autonomy, but much stronger than an argument in favor of a “fundamental right” approach, or any attempt to mix the two.
This “heightened” rational basis, an approach that has previously been seen in equal protection jurisprudence as “minimal scrutiny with bite,” clarifies the ambiguities and opacity that have plagued interpretation of Lawrence. It sidesteps the problems created by a judiciary that is looking to avoid recognition of new “fundamental rights.”
If this is correct, then the emphasis of advocate of gender autonomy should not be on trying to prove the existence of a “fundamental right,” but on trying to identify the putative state interests that can be asserted in favor of gender regulations that refuses to recognize sex reassignment, and explaining how they are either illegitimate or have insufficient rational nexus to the law.
Legal and social advocates for a right of gender autonomy should further pursue detailing the factual record and historical analysis that demonstrates the long history of legal and social gender autonomy.
You can download the materials for the session in a zip file by clicking here.
Sunday, June 7, 2009
Webinar Recording available
I recently held a series of online webinars for corporate, government and higher education personnel on transgender workplace diversity, described here.
Click here to view Recording, or Click here to download Recording. Please let me know if you have problems with either of these links at jtwassociates@gmail.com
The webinar is approximately 40 minutes long. A link will open up in a new tab, where a slide labelled "Transgender Workplace Diversity Webinar" will appear. When it downloads (which should take about a minute), you can click on the arrow in the center of the side to begin the viewing. You will begin to hear my voice discussing the slides.
Move your cursor to the bottom of the slide to find controls that will allow you to pause, to move the viewing forward or backward, and to change the volume. These are translucent and may be hard to see. You can click your cursor anywhere on the slide to pause and to continue. I also suggest listening using earphones at a lower volume because of a slight buzz in the background.
Here is a general timeline of the webinar:
0:00 Introduction
1:15 Harvard Business Review Case Study Discussion (click here to see the full case)
3:45 Subject areas of webinar
4:00 Terminology
8:10 Law
13:45 Policies, Procedures and Guidelines
19:25 Facilities Usage (bathrooms and dressing rooms)
23:30 Co-worker Training
26:10 Publicly Available Resources
27:15 What might you need an outside consultant for?
34:10 Q&A
41:30 End
A series of 90 minutes webinars will be offered over the next 6 months on specific subtopics important to HR managers. Please email me if you would like to register at jtwassociates@gmail.com. The schedule is as follows:
Wednesday July 15, 2009
Policy Drafting 12-1:30 pm (ET)
Tuesday, October 6, 2009
HR Generalist Training 12-1:30 pm (ET)
Tuesday, December 8
Coworker Training 12-1:30 pm (ET)
Tuesday, February 9, 2010 Client/Customer/Public Communications
12-1:30 pm (ET)
Click here to view Recording, or Click here to download Recording. Please let me know if you have problems with either of these links at jtwassociates@gmail.com
The webinar is approximately 40 minutes long. A link will open up in a new tab, where a slide labelled "Transgender Workplace Diversity Webinar" will appear. When it downloads (which should take about a minute), you can click on the arrow in the center of the side to begin the viewing. You will begin to hear my voice discussing the slides.
Move your cursor to the bottom of the slide to find controls that will allow you to pause, to move the viewing forward or backward, and to change the volume. These are translucent and may be hard to see. You can click your cursor anywhere on the slide to pause and to continue. I also suggest listening using earphones at a lower volume because of a slight buzz in the background.
Here is a general timeline of the webinar:
0:00 Introduction
1:15 Harvard Business Review Case Study Discussion (click here to see the full case)
3:45 Subject areas of webinar
4:00 Terminology
8:10 Law
13:45 Policies, Procedures and Guidelines
19:25 Facilities Usage (bathrooms and dressing rooms)
23:30 Co-worker Training
26:10 Publicly Available Resources
27:15 What might you need an outside consultant for?
34:10 Q&A
41:30 End
A series of 90 minutes webinars will be offered over the next 6 months on specific subtopics important to HR managers. Please email me if you would like to register at jtwassociates@gmail.com. The schedule is as follows:
Wednesday July 15, 2009
Policy Drafting 12-1:30 pm (ET)
Tuesday, October 6, 2009
HR Generalist Training 12-1:30 pm (ET)
Tuesday, December 8
Coworker Training 12-1:30 pm (ET)
Tuesday, February 9, 2010 Client/Customer/Public Communications
12-1:30 pm (ET)
Wednesday, May 6, 2009
New Dates for Free Diversity Webinar for Government and Education Officials on Transgender Issues in the Workplace
Due to overwhelming demand by government agencies and higher education officials, new dates have been scheduled for free webinars on transgender issues in the workplace. A webinar for government agency personnel will be held on Wednesday, May 27, 2009, from 12 to 1 p.m. (ET). A webinar for higher education personnel will be held on Wednesday, June 3, 2009, from 12 to 1p.m. (ET). Again, attendance is limited to 20 on a first come, first serve basis. These webinars will be specifically directed towards the particular environments encountered in government and in higher education. If you work in government or higher education, and you are interested, please see the information below "How to Register." If you have already been registered, there is no need to re-register.
Please feel free to forward this information to government and education professionals you think might be interested.
How to Register
Please email your name, title, organization name, street address and email address to jtwassociates@gmail.com. You will be issued an invitation to the webinar by email via dimdim.com, along with instructions for accessing the site. You should check your spam filter to ensure that the email can be received. Attendance is limited to 20 on a first come, first serve basis. The webinar for government agency personnel is limited to those currently employed in government agencies, and the webinar for higher education officials is limited to those working in a college or university.
Please feel free to forward this information to government and education professionals you think might be interested.
How to Register
Please email your name, title, organization name, street address and email address to jtwassociates@gmail.com. You will be issued an invitation to the webinar by email via dimdim.com, along with instructions for accessing the site. You should check your spam filter to ensure that the email can be received. Attendance is limited to 20 on a first come, first serve basis. The webinar for government agency personnel is limited to those currently employed in government agencies, and the webinar for higher education officials is limited to those working in a college or university.
Tuesday, May 5, 2009
Free Webinar for HR Professionals
On May 20, 2009, I will be holding a free webinar for HR Professionals on transgender issues in the Workplace, from 12-1 p.m. (ET). Attendance is limited to 20 on a first come, first serve basis. This webinar is specifically designed for human resources professionals. If you are interested, please see the information below "How to Register." If there is sufficient interest, I will schedule another one on an alternate date. The purpose of the seminar is to introduce human resources professionals to the issues they must address when an employee transitions in the workplace.
I will be presenting the seminar using the free web conferencing available through dimdim.com. I have used this conferencing site successfully to train research personnel, and it seems ideal for this purpose, too. During the webinar, participants can see information presented online as a series of slides, along with a live voice commentary. They are able to ask questions and hear my response.
The information I'll be presenting is specifically geared to HR managers, who face a series of unique challenges that other functions don't have: what is the effect of a change on government recording requirements, what documents are required to effect the change, how should co-workers, clients and customers be alerted in a way calculated to retain a positive workplace environment, bathroom and dressing room usage, insurance coverage, federal, state and local laws, internal policy changes, and risk management. There are a variety of resources and expert consulting services available on these issues, but often HR managers unfamiliar with these issues don't know where to look or what questions to ask in order to effectively utilize these. With transgender discrimination prohibited in more than 20 states and over 100 cities, this issue is at the leading edge of workplace diversity issues.
Please feel free to forward this information to HR professionals you think might be interested. If the maximum number of participants is reached, and there is sufficient interest, an alternate date will be opened to accommodate the additional interest.
HOW TO REGISTER
Please email your name, title, company name, street address and email address to jtwassociates@gmail.com. You will be issued an invitation to the webinar by email via dimdim.com, along with instructions for accessing the site. You should check your spam filter to ensure that the email can be received. You will also receive a free copy of my book, Transgender Workplace Diversity, by regular mail. Attendance is limited to 20 on a first come, first serve basis. This webinar is limited to those currently employed as human resources professionals in an organizational setting.
I will be presenting the seminar using the free web conferencing available through dimdim.com. I have used this conferencing site successfully to train research personnel, and it seems ideal for this purpose, too. During the webinar, participants can see information presented online as a series of slides, along with a live voice commentary. They are able to ask questions and hear my response.
The information I'll be presenting is specifically geared to HR managers, who face a series of unique challenges that other functions don't have: what is the effect of a change on government recording requirements, what documents are required to effect the change, how should co-workers, clients and customers be alerted in a way calculated to retain a positive workplace environment, bathroom and dressing room usage, insurance coverage, federal, state and local laws, internal policy changes, and risk management. There are a variety of resources and expert consulting services available on these issues, but often HR managers unfamiliar with these issues don't know where to look or what questions to ask in order to effectively utilize these. With transgender discrimination prohibited in more than 20 states and over 100 cities, this issue is at the leading edge of workplace diversity issues.
Please feel free to forward this information to HR professionals you think might be interested. If the maximum number of participants is reached, and there is sufficient interest, an alternate date will be opened to accommodate the additional interest.
HOW TO REGISTER
Please email your name, title, company name, street address and email address to jtwassociates@gmail.com. You will be issued an invitation to the webinar by email via dimdim.com, along with instructions for accessing the site. You should check your spam filter to ensure that the email can be received. You will also receive a free copy of my book, Transgender Workplace Diversity, by regular mail. Attendance is limited to 20 on a first come, first serve basis. This webinar is limited to those currently employed as human resources professionals in an organizational setting.
Monday, April 27, 2009
Fortune Small Business Magazine on Transgender Workers
Fortune Small Business magazine put out an article on transgender workers today, available on the CNNMoney.com site. Entitled "When a staffer switches genders," the subtitle emphasizes tolerance and respect: "Coping with major changes can flummox a workplace, but you can protect your bottom line and your employees by promoting tolerance and respect."
The article features the story of Tony Ferraiolo, who transitioned from female to male while working at a small business. The theme here is that such transitions can work well, though there are some issues to be ironed out. Ferraiolo, incidentally, is the founder of the Jim Collins Foundation, which provides financial assistance to transgender people for gender-confirming surgeries.
The stories of several other trans people are also mentioned, the author discusses the evolution of discrimination law, and there is an interesting sidebar discussing the steps businesses should take regarding diversity. I have a curmudgeonly little quote at the end, grousing about the importance of workplace civility. I would have liked to see some more specifics discussed about the types of issues that employers face when employee transition, but there are plenty of resources out there, Overall, I think it is wonderful that there is another article in the mainstream business press. Eventually, these will reach enough members of the business community that this issue becomes a non-issue.
The article mentions the Smith case as the first US Circuit Court to acknowledge the rights of transgender plaintiffs under Title VII. It would be appropriate to note that the first federal opinion to do so was in 1983, by Judge Grady of the Northern District of Illinois, in Ulane v. Eastern Airlines, 581 F.Supp. 821 (N.D.Ill. 1983), but his carefully written opinion was reversed by the Seventh Circuit. The first standing opinion on Title VII was in 2001, by Judge O'Malley of the Northern District of Ohio, in Doe v. United Financial Services, 2001 WL 34350174 (N.D.Ohio 2001). There were also decisions in favor of transgender plaintiffs in 2000 on statutes similar to Title VII. I was recently lucky enough to have Miranda Bernabei, who successfully argued the Smith case, as well as a number of others (see below, Doe v. United Financial and Kastl v. Maricopa College) out to Ramapo College to discuss her strategy. Her discussion of the interplay between the underlying precedents was nothing less than brillant.
In addition to the Sixth Circuit's decision in Smith v. Salem, the First and Ninth Circuits have given indications that they might rule similarly. District courts in the Second , Third , Fifth and Seventh Circuits have ruled in favor of transgender plaintiffs, as has the Federal District Court for the District of Columbia . These developments suggest that “sex” refers to more than the traditional binary distinction of sex that it once connoted. A review of the historical progression of the term “sex” demonstrates that it now includes elements of “gender”. I have an article coming out on this in the fall in the Temple Political and Civil Rights Law Review.
Here's the cases in favor of transgender plaintiffs currently. First Circuit: Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214-215 (1st Cir. 2000)(non-Title VII case), Second Circuit: Tronetti v. TLC HealthNet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. 2003), Third Circuit: Morales v. ATP Health & Beauty Care, Inc., 2008 WL 3845294 (D.Conn 2008); Mitchell v. Axcan Scandipharm, Inc., 2006 WL 456173 (W.D.Pa. 2006), lv. to app. den. 2006 WL 986971(W.D.Pa. 2006), Fifth Circuit: Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008), Seventh Circuit: Creed v. Family Express Corp., 2007 WL 2265630 (N.D.Ind. 2007) (distinguishing Ulane), Ninth Circuit: Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)(non-Title VII case), Kastl v. Maricopa County Community College Dist., 2004 WL 2008954 (D.Ariz. 2004); Fischer v. City of Portland, 2004 WL 2203276 (D.Or. 2004); Sturchio v. Ridge, 2005 WL 1502899 (E.D.Wash. 2005), DC Circuit: Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008).
The article features the story of Tony Ferraiolo, who transitioned from female to male while working at a small business. The theme here is that such transitions can work well, though there are some issues to be ironed out. Ferraiolo, incidentally, is the founder of the Jim Collins Foundation, which provides financial assistance to transgender people for gender-confirming surgeries.
The stories of several other trans people are also mentioned, the author discusses the evolution of discrimination law, and there is an interesting sidebar discussing the steps businesses should take regarding diversity. I have a curmudgeonly little quote at the end, grousing about the importance of workplace civility. I would have liked to see some more specifics discussed about the types of issues that employers face when employee transition, but there are plenty of resources out there, Overall, I think it is wonderful that there is another article in the mainstream business press. Eventually, these will reach enough members of the business community that this issue becomes a non-issue.
The article mentions the Smith case as the first US Circuit Court to acknowledge the rights of transgender plaintiffs under Title VII. It would be appropriate to note that the first federal opinion to do so was in 1983, by Judge Grady of the Northern District of Illinois, in Ulane v. Eastern Airlines, 581 F.Supp. 821 (N.D.Ill. 1983), but his carefully written opinion was reversed by the Seventh Circuit. The first standing opinion on Title VII was in 2001, by Judge O'Malley of the Northern District of Ohio, in Doe v. United Financial Services, 2001 WL 34350174 (N.D.Ohio 2001). There were also decisions in favor of transgender plaintiffs in 2000 on statutes similar to Title VII. I was recently lucky enough to have Miranda Bernabei, who successfully argued the Smith case, as well as a number of others (see below, Doe v. United Financial and Kastl v. Maricopa College) out to Ramapo College to discuss her strategy. Her discussion of the interplay between the underlying precedents was nothing less than brillant.
In addition to the Sixth Circuit's decision in Smith v. Salem, the First and Ninth Circuits have given indications that they might rule similarly. District courts in the Second , Third , Fifth and Seventh Circuits have ruled in favor of transgender plaintiffs, as has the Federal District Court for the District of Columbia . These developments suggest that “sex” refers to more than the traditional binary distinction of sex that it once connoted. A review of the historical progression of the term “sex” demonstrates that it now includes elements of “gender”. I have an article coming out on this in the fall in the Temple Political and Civil Rights Law Review.
Here's the cases in favor of transgender plaintiffs currently. First Circuit: Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214-215 (1st Cir. 2000)(non-Title VII case), Second Circuit: Tronetti v. TLC HealthNet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. 2003), Third Circuit: Morales v. ATP Health & Beauty Care, Inc., 2008 WL 3845294 (D.Conn 2008); Mitchell v. Axcan Scandipharm, Inc., 2006 WL 456173 (W.D.Pa. 2006), lv. to app. den. 2006 WL 986971(W.D.Pa. 2006), Fifth Circuit: Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008), Seventh Circuit: Creed v. Family Express Corp., 2007 WL 2265630 (N.D.Ind. 2007) (distinguishing Ulane), Ninth Circuit: Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)(non-Title VII case), Kastl v. Maricopa County Community College Dist., 2004 WL 2008954 (D.Ariz. 2004); Fischer v. City of Portland, 2004 WL 2203276 (D.Or. 2004); Sturchio v. Ridge, 2005 WL 1502899 (E.D.Wash. 2005), DC Circuit: Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008).
Saturday, April 11, 2009
Transgender Constitutional Rights: How Justice Kennedy Killed the Sex Police
I will be giving a talk, titled as above, at Hampshire College on April 17 in Western Mass. The working title was “Lawrence v. Texas and the Constitutional Right to Gender Autonomy,” but that put even me to sleep, and it would be nice to get more than the usual three people to show up on a warm spring afternoon, hence the provocative title.
Justice Kennedy didn’t really kill anyone, but he did seemingly kill off police supervision of sexual morality, writing a Supreme Court opinion in the case of Lawrence v. Texas (2003) that strongly defended the sexual freedom of gay people. That same reasoning could be used to secure the right of transgender people to legal recognition of their gender identity. I’ve discussed transgender constitutional rights here before, but for my next trick, I’d like to try to apply that to a case. That’s always the hard part of law: the neat rules don’t always fit the messy facts.
I’ve constructed a fictional case, captioned “The State versus Sam Spade,” that I will discuss with the students during my talk at Hampshire. I thought I would share it here with my online family, and invite you all, as well as Hampshire students, to discuss it online.
Read More...
Justice Kennedy didn’t really kill anyone, but he did seemingly kill off police supervision of sexual morality, writing a Supreme Court opinion in the case of Lawrence v. Texas (2003) that strongly defended the sexual freedom of gay people. That same reasoning could be used to secure the right of transgender people to legal recognition of their gender identity. I’ve discussed transgender constitutional rights here before, but for my next trick, I’d like to try to apply that to a case. That’s always the hard part of law: the neat rules don’t always fit the messy facts.
I’ve constructed a fictional case, captioned “The State versus Sam Spade,” that I will discuss with the students during my talk at Hampshire. I thought I would share it here with my online family, and invite you all, as well as Hampshire students, to discuss it online.
Read More...
Wednesday, March 25, 2009
Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas
I've been thinking a lot lately about the relationship between gender identity and sexual orientation. I just finished an article that is coming out in the Touro Journal of Race, Gender and Ethnicity. That's the title of the article above. Pretty fancy, eh? They like those fancy titles in professorland. This has been keeping me pretty busy, and thank goodness it's done.
The law specifically ties gender identity to physical sex. Even those few states that allow a change on the birth certificate don't necessarily recognize that change, or, they impose restrictions, when it comes to bathrooms, homeless shelters, drug treatment centers, domestic violence shelters, prisons, sports, youth, foster care group homes, transgender parent custody or visitation of children in a divorce, adoption, health care, insurance coverage, employment discrimination, marriage, and military service laws.
The law has imposed similar restrictions on gay sexuality, and in fact it was a crime in over two dozen states. That is, until 2003, when the Supreme Court said that such laws violated the "due process" clause of the U.S. Constitution in Lawrence v. Texas.
Being gay is now protected by the U.S. Constitution. So I've been thinking: can we use this due process clause to loosen the chokehold that the law has on transgender people?
Read More...
The law specifically ties gender identity to physical sex. Even those few states that allow a change on the birth certificate don't necessarily recognize that change, or, they impose restrictions, when it comes to bathrooms, homeless shelters, drug treatment centers, domestic violence shelters, prisons, sports, youth, foster care group homes, transgender parent custody or visitation of children in a divorce, adoption, health care, insurance coverage, employment discrimination, marriage, and military service laws.
The law has imposed similar restrictions on gay sexuality, and in fact it was a crime in over two dozen states. That is, until 2003, when the Supreme Court said that such laws violated the "due process" clause of the U.S. Constitution in Lawrence v. Texas.
Being gay is now protected by the U.S. Constitution. So I've been thinking: can we use this due process clause to loosen the chokehold that the law has on transgender people?
Read More...
Thursday, January 29, 2009
Free Symposium on Transgender Law at Touro Law Center in February
Touro Law Center’s Journal of Race, Gender and Ethnicity is holding a symposium, Transgender Law: Challenging the Boundaries of Law and Gender, on Friday, February 20, 2009 at the Touro Law Center in Central Islip, New York. I will be speaking, as will many other legal scholars. There is no fee to attend the program. To register, follow this link.There are three sessions. The first is "Gender and Access to Justice," featuring speakers on immigration Law, Prop 8, and criminal law. The second is " Gender as Legal Boundary," and features speakers on sex-testing in sports, access to healthcare, and name/gender changes. The third is "Transgender Identity and Framing Transgender Equality," featuring speakers on GID reform, constitutional right to privacy, transitional discrimination, and disability, gender and race.
A transcript of the symposium will be published on the Journal’s website. The schedule is published below.
8:30 a.m. - 9:10 a.m. REGISTRATION AND CONTINENTAL BREAKFAST
WELCOME REMARKS Dean Lawrence Raful, Touro Law Center9:20 a.m. – 10:40 a.m.
SESSION 1: GENDER AND ACCESS TO JUSTICE
Moderator: James G. Durham, Head of Public Services, Gould Law Library, Touro Law Center
- Immigration Law and the Transgender Client (Speaker: Victoria Neilson, Esq, Legal Director, Immigration Equality
- Eight - Hate or Too Late? Did California Transsexuals Survive the Proposition Eight Vote? (Speaker: Katrina Rose, Esq., Doctoral Candidate, Department of History, University of Iowa)
- Transgender Issues in Criminal Law: Finding a Place for Transgender Individuals in Prisons (Speaker: Benish Shah, Esq., Associate, Stroock & Stroock & Lavan, LLP)
10:50 a.m. – 12:10 p.m. SESSION 2: GENDER AS LEGAL BOUNDARY
Moderator: Mik Kinkead, Transgender Services Coordinator, Long Island GLBT Services Network
- From Sex-Testing to the Stockholm Consensus: The Tenuous Lex Sportiva of the Transgender Athlete (Speaker: Professor Shayna Sigman, Associate Professor of Law, Touro Law Center)
- Transgender Access to Healthcare and the Role of Medicine in Transgender Civil Rights (Speaker: Michael D. Silverman, Esq., Executive Director, Transgender Legal Defense & Education Fund)
- Transgender Name Changes and Legal Adjudications of Gender (Speaker: Franklin Romeo, Esq., Staff Attorney, Sylvia Rivera Law Project)12:10 p.m. – 1:00 p.m.
LUNCH1:00 p.m. – 2:50 p.m.
SESSION 3:TRANSGENDER IDENTITY AND FRAMING TRANSGENDER EQUALITY Moderator: David Kilmnick, PhD, MSW, Chief Executive Officer, Long Island GLBT Services Network
- The Debate over GID Reform: How Does it Play Out in the Courts? (Speaker: M. Dru Levasseur, Esq., Staff Attorney, Transgender Legal Defense & Education Fund)
- Rights to Gender Self-Determination as a Component of the Constitutional Right to Privacy (Speaker: Dr. Jillian T. Weiss, Esq., Professor of Law and Society, Ramapo College)
- Transitional Discrimination (Speaker: Professor Elizabeth Glazer, Associate Professor of Law, Hofstra Law School)
- Interlocking Systems of Oppression: Disability, Gender and Race in the Context of Transgender Legal Claims (Speaker: Kyle Kirkup, Candidate for Baccalaureate of Law and Senior Editor of Ottawa Law Review, University of Ottawa)
Professor Meredith R. Miller, Assistant Professor of Law, Touro Law Center
Tuesday, December 30, 2008
Harvard Business Review and the Interest Convergence Principle
I recently wrote a laudatory post about Harvard Business Review's case study on gender transition in the workplace. A reader of this blog raised a strong objection, apologizing for "raining on my parade."
I see this as a very, very important question that goes to the heart of "workplace diversity.
Read more...
Dr. Weiss,
According to the 2008 2nd edition of HRC's "Transgender Inclusion in the Workplace" report, you and a few other transgender "activists/consultants" are listed in the report as the "go to" people that companies should contact for diversity training about transgender workplace issues.
My question then is if you folks are going to "consult" companies already as to how the rest of us should transition in our workplaces, then why promote a case study in the first place soliciting outside opinions? It would appear to me that companies will take both your, Out and Equal, and HRC's advice as gospel anyway, like they have already done in the past when adopting transgender policies, so why bother with anyone else's opinion? The little cottage industry already seems to be firmly in place with little hope of new people coming in to educate...
I see this as a very, very important question that goes to the heart of "workplace diversity.
Read more...
Wednesday, December 17, 2008
December Harvard Business Review Features "When Steve Becomes Stephanie"
As I discussed a while back, the Harvard Business Review, one of the world's foremost business publications and read by business elites in every country in the world, is weighing in on transgender workplace issues this month. Every month, HBR contains a "case study," a complex fictional scenario designed to illustrate an issue that businesses face, inviting three industry experts to comment.
The December issue of HBR features a case entitled "When Steve Becomes Stephanie." The subtitle is "What does a star player's gender change imply for a traditional company's culture?" Readers are invited to comment online, and there are some interesting comments.
HBR has succeeded in bringing out transgender workplace issues to the world business community in a way that invites serious intellectual thought about how businesses can and should handle gender transition in the workplace, other than the traditional "you're fired" method. There were a lot of ways this project could have gone wrong, but HBR really did its homework.
At the same time, it should be recognized that the HBR case study does not, can not and should not be required to do all the work necessary to address the severe and systemic problems that transgender employees face. It is a giant step in the right direction, but it focuses on a star performer in a Fortune 1000 company earning megabucks. As some Bilerico readers have so cogently pointed out, few transgender people are so fortunate. Nonetheless, this is the perfect scenario to attract the attention of the corporate high-flyers who comprise HBR's audience. It's also an entertaining read.
Read more...
The December issue of HBR features a case entitled "When Steve Becomes Stephanie." The subtitle is "What does a star player's gender change imply for a traditional company's culture?" Readers are invited to comment online, and there are some interesting comments.
HBR has succeeded in bringing out transgender workplace issues to the world business community in a way that invites serious intellectual thought about how businesses can and should handle gender transition in the workplace, other than the traditional "you're fired" method. There were a lot of ways this project could have gone wrong, but HBR really did its homework.
At the same time, it should be recognized that the HBR case study does not, can not and should not be required to do all the work necessary to address the severe and systemic problems that transgender employees face. It is a giant step in the right direction, but it focuses on a star performer in a Fortune 1000 company earning megabucks. As some Bilerico readers have so cogently pointed out, few transgender people are so fortunate. Nonetheless, this is the perfect scenario to attract the attention of the corporate high-flyers who comprise HBR's audience. It's also an entertaining read.
Read more...
Tuesday, October 21, 2008
Harvard Business Review weighs in on transgender workplace issues
I remember reading in 1996 an advice book for transsexuals that read like Cassandra and Nostradamus reminiscing about the End of Days: "You're starting over as a woman, so you need to hide your past life as a man. Say goodbye to your career. Prepare to leave your job and find something with half the pay. Cut out half of the things on your resume, lest you be outed. Count yourself lucky not to be out on the street."
This is but a sample of the type of advice I received prior to my transition. It was right on the money.
It's still on the money. Most employers remain ignorant and/or somewhat hostile to policy changes for transgender workers. I have received hundreds of emails from transgender workers who are having difficulty getting their employers to treat them right. Nonetheless, there is light at the end of the tunnel. Hundreds of leading companies have now put policies in place to address issues of gender identity in the workplace.
And today, Harvard Business Review begins an in-depth examination of the topic.
(Read More...)
This is but a sample of the type of advice I received prior to my transition. It was right on the money.
It's still on the money. Most employers remain ignorant and/or somewhat hostile to policy changes for transgender workers. I have received hundreds of emails from transgender workers who are having difficulty getting their employers to treat them right. Nonetheless, there is light at the end of the tunnel. Hundreds of leading companies have now put policies in place to address issues of gender identity in the workplace.
And today, Harvard Business Review begins an in-depth examination of the topic.
(Read More...)
Wednesday, September 3, 2008
New York Times article on gender transition in the workplace
The New York Times has an article on gender transition in the workplace in Thursday's "Life's Work" column. The writer, Lisa Belkin, creates an interesting contrast between gender transition a decade ago and those of more recent vintage, as well as the changes in legal protections. I was quoted, along with a number of others who have had extensive experience with gender identity issues in the workplace, such as Dr. Mary Ann Horton (Sempra Energy), Lori Fox (Out & Equal) and William Tate (General Motors). I note that the number of Fortune 500 companies protecting gender identity is now up to 153 in the latest Corporate Equality Index, as compared to 125 in 2007. The other item to note is that I wouldn't agree that the rapid rise of private employer policies is mostly due to the Corporate Equality Index. Rather, I would say that it was one of the most visible causes. A lot of the credit goes to GLBT advocates and organizations like Taylor Flynn, Riki Wilchins, Shannon Minter, GenderPAC, NCLR and NGLTF for putting transgender issues in the forefront of GLBT concerns. More about that in upcoming posts. You can find the article here.
Sunday, August 17, 2008
San Francisco Bay Times Article
An article about my work has appeared in the San Francisco Bay Times (and is syndicated to several websites), entitled
Former Attorney Tackles Workplace Issues, FTM Borderlands and Transphobia," written by Jacob Anderson-Minshall. He's done a great job of summarizing my work so far. You may read the full version here.
(The SF Bay Times version is shorter.)
Former Attorney Tackles Workplace Issues, FTM Borderlands and Transphobia," written by Jacob Anderson-Minshall. He's done a great job of summarizing my work so far. You may read the full version here.
(The SF Bay Times version is shorter.)
Changing Sex in Corporate America
Last year, I was interviewed by two students from Columbia University's School of Journalism. Their senior project was to create a website about transgender issues in the workplace. Their final product is now up on the web, and I think is does an excellent job of laying out the issues. It features the stories of three transgender people in Corporate America, and includes answers to frequently asked questions. You can find it here: http://web.jrn.columbia.edu/newmedia/2008/masters/transgender/
Sunday, July 27, 2008
Upcoming Workshop 11/14/08
I will be offering another seminar on Transgender Workplace Diversity Issues on Friday, November 14, 2008, from 10 a.m. to 4 p.m. It will be held in New York City in the midtown area, location to be announced. The seminar is targeted to human resources professionals, lawyers, and transgender individuals who are facing these issues in the workplace.
Schedule and Registration Information
SCHEDULE
AM
Transgender basics
Legal compliance issues
How to address policy issues:
Bathroom and locker room facilities
Insurance and benefits
Name/gender changes on government and corporate records
Roleplaying scenarios - learn to do by doing
LUNCH (provided)
PM
How to train co-workers and managers
How to communicate changes to customers and clients
Recruiting issues
Diversity index requirements
Roleplaying scenarios - learn to do by doing
The teaching method includes the latest collaborative learning and roleplaying techniques, which insures that you leave the seminar with experience, as well as knowledge. HRCI certification credits will be available.
REGISTRATION INFORMATION
The workshop fee of $299 includes lunch, the book, and sample training slideshow. If you register by September 5, pay only $254. Registration is limited to 20 participants, so don't delay.
To register, please email your name, organizational affiliation and mailing address to jtwassociates@gmail.com to reserve your place and receive seminar materials, and send a check payable to Dr. Jillian T. Weiss, P.O. Box 57, Smallwood, NY 12778. Payment may also be made via credit card using the button below. For the earlybird discount, payment must be postmarked or received on or before 9/5. Refund policy: Cancellation required by November 6 ($50 non-refundable registration fee). When you register, we will send your copy of the book (by mail) and sample training slideshow (by email).
For more information, you may also email Dr. Weiss at jtwassociates@gmail.com or call 845-709-3237.
Participants in the previous workshops offered these comments:
About the Presenter:
Professor Jillian T. Weiss, J.D., Ph.D., is Associate Professor of Law and Society at Ramapo College. Her area of research is transgender workplace diversity issues, and she has conducted research involving hundreds of companies and public agencies that have adopted "gender identity" policies. She has written a doctoral dissertation on the subject, as well as books and journal articles, and has been featured in numerous media articles, which you can see by clicking here. She has consulted with Fortune 500 companies, small businesses and public agencies regarding training, policy development and communications strategies in the area of gender transition, including Boeing, HSBC, KPMG, Viacom, the New York City Department of Homeless Services and the Bergen County Utilities Authority. Her work has been featured in news stories by The Associated Press, The New York Post, The Bergen Record, the St. Petersburg Times, NJ Biz Magazine, Echelon Magazine, Workforce Management Magazine, and the Society for Human Resource Management. Dr. Weiss is on the Board of Advisors of the National Center for Transgender Equality.
Schedule and Registration Information
SCHEDULE
AM
Transgender basics
Legal compliance issues
How to address policy issues:
Bathroom and locker room facilities
Insurance and benefits
Name/gender changes on government and corporate records
Roleplaying scenarios - learn to do by doing
LUNCH (provided)
PM
How to train co-workers and managers
How to communicate changes to customers and clients
Recruiting issues
Diversity index requirements
Roleplaying scenarios - learn to do by doing
The teaching method includes the latest collaborative learning and roleplaying techniques, which insures that you leave the seminar with experience, as well as knowledge. HRCI certification credits will be available.
REGISTRATION INFORMATION
The workshop fee of $299 includes lunch, the book, and sample training slideshow. If you register by September 5, pay only $254. Registration is limited to 20 participants, so don't delay.
To register, please email your name, organizational affiliation and mailing address to jtwassociates@gmail.com to reserve your place and receive seminar materials, and send a check payable to Dr. Jillian T. Weiss, P.O. Box 57, Smallwood, NY 12778. Payment may also be made via credit card using the button below. For the earlybird discount, payment must be postmarked or received on or before 9/5. Refund policy: Cancellation required by November 6 ($50 non-refundable registration fee). When you register, we will send your copy of the book (by mail) and sample training slideshow (by email).
For more information, you may also email Dr. Weiss at jtwassociates@gmail.com or call 845-709-3237.
Participants in the previous workshops offered these comments:
- Interesting, useful and relevant material, and an excellent presentation style!
- I found all parts interesting and thought-provoking.
- The guidebook - excellent resource! I like the step-by-step guidelines.
- The most useful part is the roleplay scenarios and the group discussions.
About the Presenter:
Professor Jillian T. Weiss, J.D., Ph.D., is Associate Professor of Law and Society at Ramapo College. Her area of research is transgender workplace diversity issues, and she has conducted research involving hundreds of companies and public agencies that have adopted "gender identity" policies. She has written a doctoral dissertation on the subject, as well as books and journal articles, and has been featured in numerous media articles, which you can see by clicking here. She has consulted with Fortune 500 companies, small businesses and public agencies regarding training, policy development and communications strategies in the area of gender transition, including Boeing, HSBC, KPMG, Viacom, the New York City Department of Homeless Services and the Bergen County Utilities Authority. Her work has been featured in news stories by The Associated Press, The New York Post, The Bergen Record, the St. Petersburg Times, NJ Biz Magazine, Echelon Magazine, Workforce Management Magazine, and the Society for Human Resource Management. Dr. Weiss is on the Board of Advisors of the National Center for Transgender Equality.
Monday, April 21, 2008
HRC issues second edition of "Transgender Inclusion in the Workplace"
The Human Rights Campaign Foundation has released the second edition of its manual on "Transgender Inclusion in the Workplace." Many transgender advocates, including myself, have deep reservations about HRC because of its controversial stance on inclusion of "gender identity" in ENDA. Nonetheless, these reservations do not change the fact that many employers will likely be looking to this document to address transgender inclusion issues, and it deserves comment. I also have a great deal of respect personally for Samir Luther, who is the author of the report, and I believe there is some significance to the fact that the report comes from the HRC Foundation, an educational foundation separate from the political lobbying organization known as the Human Rights Campaign. But whatever the significance of all that, my initial read-through suggests that this second edition is head and shoulders above the previous effort. I'm also happy the inartful double-entendre subtitle, "A Tool For Managers", has been removed.
This document is far more comprehensive, and more willing to delve into the specifics of transgender issues. When I reviewed the first edition, my criticism focused on its vague generality. This problem has been largely rectified. The original document was 27 pages long, whereas the current version is 41 pages long. Even the definitions on page 2 are more comprehensive than those in the first edition. It's also important that there is a discussion of non-transitioning transgender employees, although there probably should be more about how to accommodate these employees. (There may have been a political decision on this to avoid this controversy.) I particularly liked the discussion of "gender transition guidelines" on page 26 (wink wink), short though it was, but much more important is the discussion of restroom and locker room access on page 33. Rather than two short paragraphs for this all-consuming issue, as in the original version, there is a two page discussion with specific suggestions for how to make reasonable restroom access available. I particularly like the suggestion that coworkers uncomfortable with a transgender employee's use of the same restroom may use separate restroom facilities, the specifics regarding locker rooms and the specific reference to the OSHA standards for restroom access.
This document is a usable guide with implementable solutions, as opposed to a general rough draft of some basic good ideas about how to tolerate transgender employees. I like the specifics about how to go about making health insurance coverage changes on page 36. A lot of people have come to me because they understood how to implement policy changes in the corporate boardroom and in the HR suite, but not at the insurance company level. As a former insurance coverage attorney, this holds no surprises for me, but it is a mystery to many even in the benefits department. However, I must admit I was surprised to read about IBM bringing Dr. Marci Bowers in-network (p. 40). It never ceases to amaze me: as much as I know about this area, there are so many things I don't know. I was heartened to read about this, and it is important information, for it blazes a trail for those to come who are mystified about how to make transgender health benefits a reality.
One of the things I would like to see more of in the future is a discussion of the privacy issue on page 29. This version is more accurate about the effects of HIPAA, and correctly tags state privacy laws as fundamental to the issue, but I would like to see future versions give a bit more discussion about the types of questions that one should not ask, such as "can you give us an affidavit from your doctor swearing that you have had bottom surgery." (I've seen this type of intrusive questioning.)
Of course, I must roll my eyes at the the coy discussion of federal law on page 12, which drily recites the fact that ENDA, introduced as HR 2015 "would add gender identity to existing non-dscrimination law," but that "a version of the bill with just sexual orientation, HR 3685, was passed in November 2007 by the US House of Representatives." I suppose they had to say something.
I note that I am mentioned three times in the text of this document. For the record, I did not know that I would be mentioned, and I was not consulted regarding these mentions. However, I don't object, as my goal in doing research in the area of transgender workplace diversity is to help transgender people by whatever means possible. I only pray that HRC and the wise politicians who lead our country begin to open their eyes to the fact that the fairness and equality message of the Employment Non-Discrimination Act cannot be premised on unfairness and inequality.
This document is far more comprehensive, and more willing to delve into the specifics of transgender issues. When I reviewed the first edition, my criticism focused on its vague generality. This problem has been largely rectified. The original document was 27 pages long, whereas the current version is 41 pages long. Even the definitions on page 2 are more comprehensive than those in the first edition. It's also important that there is a discussion of non-transitioning transgender employees, although there probably should be more about how to accommodate these employees. (There may have been a political decision on this to avoid this controversy.) I particularly liked the discussion of "gender transition guidelines" on page 26 (wink wink), short though it was, but much more important is the discussion of restroom and locker room access on page 33. Rather than two short paragraphs for this all-consuming issue, as in the original version, there is a two page discussion with specific suggestions for how to make reasonable restroom access available. I particularly like the suggestion that coworkers uncomfortable with a transgender employee's use of the same restroom may use separate restroom facilities, the specifics regarding locker rooms and the specific reference to the OSHA standards for restroom access.
This document is a usable guide with implementable solutions, as opposed to a general rough draft of some basic good ideas about how to tolerate transgender employees. I like the specifics about how to go about making health insurance coverage changes on page 36. A lot of people have come to me because they understood how to implement policy changes in the corporate boardroom and in the HR suite, but not at the insurance company level. As a former insurance coverage attorney, this holds no surprises for me, but it is a mystery to many even in the benefits department. However, I must admit I was surprised to read about IBM bringing Dr. Marci Bowers in-network (p. 40). It never ceases to amaze me: as much as I know about this area, there are so many things I don't know. I was heartened to read about this, and it is important information, for it blazes a trail for those to come who are mystified about how to make transgender health benefits a reality.
One of the things I would like to see more of in the future is a discussion of the privacy issue on page 29. This version is more accurate about the effects of HIPAA, and correctly tags state privacy laws as fundamental to the issue, but I would like to see future versions give a bit more discussion about the types of questions that one should not ask, such as "can you give us an affidavit from your doctor swearing that you have had bottom surgery." (I've seen this type of intrusive questioning.)
Of course, I must roll my eyes at the the coy discussion of federal law on page 12, which drily recites the fact that ENDA, introduced as HR 2015 "would add gender identity to existing non-dscrimination law," but that "a version of the bill with just sexual orientation, HR 3685, was passed in November 2007 by the US House of Representatives." I suppose they had to say something.
I note that I am mentioned three times in the text of this document. For the record, I did not know that I would be mentioned, and I was not consulted regarding these mentions. However, I don't object, as my goal in doing research in the area of transgender workplace diversity is to help transgender people by whatever means possible. I only pray that HRC and the wise politicians who lead our country begin to open their eyes to the fact that the fairness and equality message of the Employment Non-Discrimination Act cannot be premised on unfairness and inequality.
Wednesday, February 13, 2008
Echelon Magazine: Transgender HRC Business Council Resignations Raise Questions About Future of Transgender Advocacy
I wrote this article for the Jan/Feb 2008 issue of Echelon Magazine, the GLBT business magazine. In it, I discuss the resignations of Donna Rose and Jamison Green, two highly-regarded transgender advocates, from the Human Rights Campaign's Business Council, and what that portends for transgender advocacy.
Transgender HRC Business Council Resignations Raise Questions About Future of Transgender Advocacy
The transgender community has made large strides towards acceptance in the halls of business during the past several years, due in major part to the Human Rights Campaign, and particularly its active Business Council, which has, until recently, included two well-regarded transgender advocates, Jamison Green and Donna Rose. Calling their decision “an extremely difficult one,” they have resigned from the Council, an advisory body within HRC focusing on workplace issues. Rose, who had also been a member of HRC’s Board of Directors, resigned from that position earlier, immediately after HRC’s October decision not to join some 350 LGBT organizations of United ENDA in opposing HR 3685, a version of the Employment Non-Discrimination Act (ENDA) that excluded gender identity protections. As Green and Rose noted in a public statement, "Recent HRC policy decisions - to actively support a version of the Employment Non-Discrimination Act (ENDA) that excludes our transgender brothers and sisters as well as gender-variant lesbian, gay, and bisexual people - have placed us in an untenable position.” These resignations raise significant questions about the future of transgender advocacy in what seems to be a changed LGBT advocacy climate.
The recent resignations came after HRC’s president, Joe Solmonese, had refused for over three weeks to arrange a meeting to address their concerns. The concerns also included HRC’s controversial abrupt about-face regarding ENDA. Less than a month before, Solmonese stood in front of the annual Southern Comfort conference, a prominent transgender convention, and publicly reiterated promises to support only an inclusive ENDA. While many transgender leaders, such as Mara Kiesling, Executive Director of the National Center for Transgender Equality, took this in good faith, there were darker interpretations by long-time opponents of HRC, such as Ethan St. Pierre, Board Chair of the National Transgender Advocacy Coalition. Unfortunately, Kiesling’s trust turned out to be misplaced, fueling bitter rivalries within the transgender community. “It was, frankly, unethical,” Kiesling said.
Green and Rose were reluctant to resign because the Council had achieved much for transgender people in the area of workplace policies and protections, as evidenced by HRC’s 2007 State of the Workplace Report and 2008 Corporate Equality Index, as well as a number of important new initiatives detailed in Rose’s public statement. HRC’s operating budget is generally understood to be the largest, and it is considered the most politically influential of all LGBT advocacy organizations. Despite all this, Rose stated that she and Green could no longer in good conscience remain on the Council, noting that “principles are not for compromise.” This leaves only one transgender person officially working with HRC: Dana Beyer of Maryland, a retired physician who has had respectable showings in campaigns for state public office, on the HRC Board of Governors. Beyer said that it is in the best interests of the transgender community that someone have access to HRC and its resources, though she acknowledges that a large organization “can sometimes lose touch with the grassroots ethics it had as a smaller organization.”
In response to the resignations, Darryl Herrschaft of the HRC said, “We at HRC look forward to continuing our groundbreaking work to build support for policies that support transgender people. We wish Donna Rose and Jamison Green well in their future endeavors.”
These events suggest the ascendancy of a more conservative trend on transgender issues within the LGBT community. While HRC suggests that it simply acknowledged political reality, the organization’s actions imply that some of its leadership and constituency are moving to reduce the importance of trans issues. Although many organizations opposed a non-inclusive ENDA, none of these have the level of power and influence of HRC, as evidenced by its $35 million budget reported in 2006 by the Movement Advancement Project, the largest chunk of the $108 million GLBT advocacy dollars funds reported for that year. A number of influential gay-rights advocates, such as John Aravosis and Chris Crain, have supported HRC’s decisions. HRC also commissioned a poll prior to the vote purporting to show that 70% of gay men and lesbians in the United States endorsed the non-inclusive ENDA, though the research methodology has since been questioned. HRC lobbyists met with legislators and, using the poll, advocated for the non-inclusive bill. In addition, HRC has actively opposed the argument, made by organizations such as Lambda Legal, that the failure of the bill to include gender identity would hurt gender non-conforming gays and lesbians, as well as transgender people, in the courts. Tiffany Dean, the Board Relations Manager of HRC, recently issued “talking points” to the HRC Board of Governors, which cites the opinion of Dale Carpenter, a law professor who publicly identifies himself as a libertarian-leaning political conservative. “As the prominent professor Dale Carpenter has publicly explained, proponents of this view have been unable to produce a single case in support of it. Although reasonable minds can differ regarding the strategy surrounding our progress toward ENDA, it is clear that the legal argument is untenable.” Opponents of Carpenter’s legal views, including Lambda Legal, have cited examples of such court interpretations, along with detailed explanations that seem to bear out the legal concerns about a non-inclusive ENDA, but Carpenter views these as unpersuasive. HRC sides with Carpenter’s conservative viewpoint, and, although it protests vigorously that it will continue to support transgender rights, it appears that transgender advocates may have to adapt to a new reality.
While this new LGBT advocacy climate poses significant challenges to traditional models of transgender advocacy, there is hope of a bright future. St. Pierre, who has long publicly stated that HRC is not to be trusted, believes that the resignations are a blow to transgender advocacy, but thinks they might have some good effects because they will refocus advocacy on a less centralized model that will function more effectively in the new LGBT advocacy climate.“We’re pulling away and saying all the work we’ve done under the banner of HRC doesn’t have to remain there, because 350 plus organizations are standing alongside us, and HRC isn’t the groundbreaking organization for the transgender community. There are a lot of tables for us to sit at, and we don’t need HRC for that.” Kiesling, who has long collaborated with HRC, says she feels very differently about HRC now. She suggests that recent events, particularly the creation of United ENDA, “show that there is a strong activist core in the LGBT movement, and the decentralized nature of our community is a big plus.” In regard to public education on transgender issues, her organization plans to concentrate on creating materials supporting education efforts by individuals around the country.
In the midst of this new climate, Green and Rose have announced the launch of a new organization to promote transgender workplace education, the Transgender Education Partnership (TransEducate.com). It is not based on the classic 501(c)(3) non-profit model, but on a business model that emphasizes the types of education that business organizations prize more highly. This partnership will look to provide education focused on business diversity issues regarding transgender employees in the workplace, targeted to executives, business owners, diversity and EEO managers, supervisors and workgroups who desire better working relationships with their transgender, transsexual, or gender variant co-workers, customers, and business partners. Their organization is an association of experienced and respected local and national transgender trainers and advocates working together to provide best-of-breed education, tools, and resources regarding gender variant, transgender, and transsexual people with respect to workplace issues, insurance and wellness benefits, EEO functions and diversity training, best practices for workplace transitions, and train-the-trainer solutions. Their education initiative appears poised to take advantage of a decentralized model that will function well in this new climate of post-ENDA transgender advocacy. In this way, it may well turn out that the resignations of Green and Rose herald the start of a new era of transgender advocacy.
Transgender HRC Business Council Resignations Raise Questions About Future of Transgender Advocacy
The transgender community has made large strides towards acceptance in the halls of business during the past several years, due in major part to the Human Rights Campaign, and particularly its active Business Council, which has, until recently, included two well-regarded transgender advocates, Jamison Green and Donna Rose. Calling their decision “an extremely difficult one,” they have resigned from the Council, an advisory body within HRC focusing on workplace issues. Rose, who had also been a member of HRC’s Board of Directors, resigned from that position earlier, immediately after HRC’s October decision not to join some 350 LGBT organizations of United ENDA in opposing HR 3685, a version of the Employment Non-Discrimination Act (ENDA) that excluded gender identity protections. As Green and Rose noted in a public statement, "Recent HRC policy decisions - to actively support a version of the Employment Non-Discrimination Act (ENDA) that excludes our transgender brothers and sisters as well as gender-variant lesbian, gay, and bisexual people - have placed us in an untenable position.” These resignations raise significant questions about the future of transgender advocacy in what seems to be a changed LGBT advocacy climate.
The recent resignations came after HRC’s president, Joe Solmonese, had refused for over three weeks to arrange a meeting to address their concerns. The concerns also included HRC’s controversial abrupt about-face regarding ENDA. Less than a month before, Solmonese stood in front of the annual Southern Comfort conference, a prominent transgender convention, and publicly reiterated promises to support only an inclusive ENDA. While many transgender leaders, such as Mara Kiesling, Executive Director of the National Center for Transgender Equality, took this in good faith, there were darker interpretations by long-time opponents of HRC, such as Ethan St. Pierre, Board Chair of the National Transgender Advocacy Coalition. Unfortunately, Kiesling’s trust turned out to be misplaced, fueling bitter rivalries within the transgender community. “It was, frankly, unethical,” Kiesling said.
Green and Rose were reluctant to resign because the Council had achieved much for transgender people in the area of workplace policies and protections, as evidenced by HRC’s 2007 State of the Workplace Report and 2008 Corporate Equality Index, as well as a number of important new initiatives detailed in Rose’s public statement. HRC’s operating budget is generally understood to be the largest, and it is considered the most politically influential of all LGBT advocacy organizations. Despite all this, Rose stated that she and Green could no longer in good conscience remain on the Council, noting that “principles are not for compromise.” This leaves only one transgender person officially working with HRC: Dana Beyer of Maryland, a retired physician who has had respectable showings in campaigns for state public office, on the HRC Board of Governors. Beyer said that it is in the best interests of the transgender community that someone have access to HRC and its resources, though she acknowledges that a large organization “can sometimes lose touch with the grassroots ethics it had as a smaller organization.”
In response to the resignations, Darryl Herrschaft of the HRC said, “We at HRC look forward to continuing our groundbreaking work to build support for policies that support transgender people. We wish Donna Rose and Jamison Green well in their future endeavors.”
These events suggest the ascendancy of a more conservative trend on transgender issues within the LGBT community. While HRC suggests that it simply acknowledged political reality, the organization’s actions imply that some of its leadership and constituency are moving to reduce the importance of trans issues. Although many organizations opposed a non-inclusive ENDA, none of these have the level of power and influence of HRC, as evidenced by its $35 million budget reported in 2006 by the Movement Advancement Project, the largest chunk of the $108 million GLBT advocacy dollars funds reported for that year. A number of influential gay-rights advocates, such as John Aravosis and Chris Crain, have supported HRC’s decisions. HRC also commissioned a poll prior to the vote purporting to show that 70% of gay men and lesbians in the United States endorsed the non-inclusive ENDA, though the research methodology has since been questioned. HRC lobbyists met with legislators and, using the poll, advocated for the non-inclusive bill. In addition, HRC has actively opposed the argument, made by organizations such as Lambda Legal, that the failure of the bill to include gender identity would hurt gender non-conforming gays and lesbians, as well as transgender people, in the courts. Tiffany Dean, the Board Relations Manager of HRC, recently issued “talking points” to the HRC Board of Governors, which cites the opinion of Dale Carpenter, a law professor who publicly identifies himself as a libertarian-leaning political conservative. “As the prominent professor Dale Carpenter has publicly explained, proponents of this view have been unable to produce a single case in support of it. Although reasonable minds can differ regarding the strategy surrounding our progress toward ENDA, it is clear that the legal argument is untenable.” Opponents of Carpenter’s legal views, including Lambda Legal, have cited examples of such court interpretations, along with detailed explanations that seem to bear out the legal concerns about a non-inclusive ENDA, but Carpenter views these as unpersuasive. HRC sides with Carpenter’s conservative viewpoint, and, although it protests vigorously that it will continue to support transgender rights, it appears that transgender advocates may have to adapt to a new reality.
While this new LGBT advocacy climate poses significant challenges to traditional models of transgender advocacy, there is hope of a bright future. St. Pierre, who has long publicly stated that HRC is not to be trusted, believes that the resignations are a blow to transgender advocacy, but thinks they might have some good effects because they will refocus advocacy on a less centralized model that will function more effectively in the new LGBT advocacy climate.“We’re pulling away and saying all the work we’ve done under the banner of HRC doesn’t have to remain there, because 350 plus organizations are standing alongside us, and HRC isn’t the groundbreaking organization for the transgender community. There are a lot of tables for us to sit at, and we don’t need HRC for that.” Kiesling, who has long collaborated with HRC, says she feels very differently about HRC now. She suggests that recent events, particularly the creation of United ENDA, “show that there is a strong activist core in the LGBT movement, and the decentralized nature of our community is a big plus.” In regard to public education on transgender issues, her organization plans to concentrate on creating materials supporting education efforts by individuals around the country.
In the midst of this new climate, Green and Rose have announced the launch of a new organization to promote transgender workplace education, the Transgender Education Partnership (TransEducate.com). It is not based on the classic 501(c)(3) non-profit model, but on a business model that emphasizes the types of education that business organizations prize more highly. This partnership will look to provide education focused on business diversity issues regarding transgender employees in the workplace, targeted to executives, business owners, diversity and EEO managers, supervisors and workgroups who desire better working relationships with their transgender, transsexual, or gender variant co-workers, customers, and business partners. Their organization is an association of experienced and respected local and national transgender trainers and advocates working together to provide best-of-breed education, tools, and resources regarding gender variant, transgender, and transsexual people with respect to workplace issues, insurance and wellness benefits, EEO functions and diversity training, best practices for workplace transitions, and train-the-trainer solutions. Their education initiative appears poised to take advantage of a decentralized model that will function well in this new climate of post-ENDA transgender advocacy. In this way, it may well turn out that the resignations of Green and Rose herald the start of a new era of transgender advocacy.
Wednesday, October 31, 2007
Radio Interview Sunday 9pm on TransFM.org
On Sunday, November 4, 2007 at 9pm, my interview with Ethan St. Pierre of TransFM Radio will air. In this interview about my new book, "Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals," we discuss the realities facing transgender workers, the laws designed to protect them, and the types of issues that they face in the employment environment. An archive of the interview will be available on Tuesday.
For the interview and the archive, go to The Radicalguy.
For the interview and the archive, go to The Radicalguy.
Monday, October 29, 2007
The END of ENDA?
It looks like ENDA is off the House calendar, though I understand that doesn't necessarily mean it won't miraculously reappear. My guess is they're playing a political shell game to see who's looking.
Several other blogs have discussed the issue quite well, and if you would like to see them, here's my "Shared Items" feed from Google Reader. (Tip: You can also see my shared items in the box at the bottom of my blog, labelled "Useful Posts From Other Blogs")
Here's the posts I'm referring to:
ENDA Not On Next Week’s Congressional Calendar
The T is officially out of the ENDA
The Hill: “Freshman Democrats kill transgender amendment”
ENDA Update: The Fork In The Road
Several other blogs have discussed the issue quite well, and if you would like to see them, here's my "Shared Items" feed from Google Reader. (Tip: You can also see my shared items in the box at the bottom of my blog, labelled "Useful Posts From Other Blogs")
Here's the posts I'm referring to:
ENDA Not On Next Week’s Congressional Calendar
The T is officially out of the ENDA
The Hill: “Freshman Democrats kill transgender amendment”
ENDA Update: The Fork In The Road
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