At Yeshiva University in New York City, an Orthodox Jewish institution (and my alma mater), a professor has transitioned from male to female and the story is in the news this week. The story began two years ago, when the award-winning Fulbright scholar-poet (who used to teach at Princeton), Joy Ladin, notified the school that she was planning to transition. She went on leave last year, and is returning this year for the first time as a female. While the school appeared initially to have been unsure what to do, the administration has now accepted her back without public comment. Teachers and students appear to be largely supportive. Below is a clip from a local television station, CW11, which asked me for an interview. (Click on the arrow on the bottom left of the video to play.)
The reference I made in the video to "gay students wanting to room together" is that of a situation involving a lesbian graduate student enrolled at Yeshiva University's Albert Einstein College of Medicine in NYC. She requested housing for herself and her partner of five years, but Yeshiva's policy only permitted non-student housing if a married couple, and at that time (the mid 90s), no U.S. state permitted same-sex marriage and New York State did not recognize same-sex marriages.
The student sued for discrimination under the New York City law. Yeshiva won the first round, when the trial court dismissed the complaint, before trial, on the grounds that the university policy did not create a disparity for lesbian students. The appeals court agreed, but New York's highest court reversed those decisions, saying that it might have created a disparate impact on gay students, and sent the case back to the trial court for a trial.
It's hard to tell what happened after that, as the case seems to have dropped from public view afterwards. However, knowing the law as I do, I imagine both sides were war-weary and drained of resources and happy to let the matter drop. My guess on the legal fees for Yeshiva is in the $100,000-$250,000 range. The case generated lots of press for Yeshiva, but not the good kind. Meanwhile, the plaintiffs were represented by the ACLU, and so incurred little monetary cost, although I imagine the emotional toll was high. I also surmise that Yeshiva does not want to go through a similar experience with Professor Levin. Despite what religious ideologues may say, sometimes discretion is the better part of valor.
It is the way of television to talk in snippets, and although I gave many stirring quotes about freedom, civil rights and the role of religion, they now lie discarded on the cutting room floor. (Do they still do that in the digital age?) Ah well. The story was well done, so I have no complaints.
Stories in the News and the Blogosphere
There are stories in the New York Post, and the Chronicle of Higher Education.
The blogosphere has exploded with the story. The Jewish blog community is divided on the question. There are positive comments (DovBear Jewneric, Hirhurim, Jewschool) and negative comments (Vosisneias and The Yeshiva World). Dozens more here.
Jewish Community Resources on Transgender Issues
Of note in the Jewish community are Reuben Zellman, a transgender rabbinical student at Hebrew Union College and Rabbi Levi Alter, a transgender rabbi who has a congregation in San Francisco. There is also a listserv for transgender Orthodox Jews with dozens of participants. Reform Judaism has created blessings to be said upon sex reassignment surgery. Jvoices regularly has posts on transgender issues.
There are also some Jewish blogs that have looked at the issue of gender transition from the point of view of Orthodox legal principles, and though there are a lot of Hebrew and Aramaic Talmudic terms sprinkled about, it gives a useful insight into the real issues in Orthodox Judaism beyond the prejudice spouted in the NY Post article. Using careful logic (which is nonetheless hampered by an apparent lack of understanding of biological principles underlying gender), it allows some room for the idea that gender reassignment may, in fact, accomplish a change of gender according to Jewish law. Read it in Sfas ha Nachal
There is also some interesting information about transgender issues in Judaism in the more reform-minded website TransTorah.
Larger Issue of Religious Opt-Out
There is a larger issue here, and that is the question of religious opt-out of anti-discrimination laws. That has been discussed in detail here, as it came up in an issue last year regarding another religious university, Spring Arbor University in Michigan. I discussed in detail the "BFOQ defense", which exempts certain religious institutions from federal EEO law. The "Bona Fide Occupational Qualification" defense lifts EEO requirements in certain circumstances. However, those circumstances were probably not satisfied in the Spring Arbor case, and Spring Arbor settled the lawsuit that ensued after they fired the professor, probably for a hefty sum.
According to a quote from Mara Keisling, executive Director of NCTE, this is the only religious university in the US that is now employing a transgender person.
The BFOQ is also probably not applicable in the Yeshiva situation. The BFOQ is also intimately connected to another religious freedom principle, the First Amendment of the US Constitution. That is also probably not applicable here. That's also discussed in the prior posts.
Meanwhile...
Meanwhile, Joy Ladin quietly goes about her business - writing poetry and teaching students about the joys of English. You can see some of her poetry here.
I don't think this is the end of the story. There are many ways for an employer to come up with a facially non-discriminatory reason to fire someone. It might be a precipitous decline in student enrollment in classes. It might be some negative comments from students. It might be mis-interpretation of a thoughtless statement made in class. It might be a reaction to protest at an 8am overload schedule of classes every day of the week, or assignment to only remedial reading classes. It might be complaints from students and staff about feeling harrassed or upset by her presence, voice, or clothing. It might be an issue about which bathroom to use. Time will tell.
Showing posts with label New York. Show all posts
Showing posts with label New York. Show all posts
Tuesday, September 9, 2008
Tuesday, February 19, 2008
Brooklyn Court Rules Trans Customer Protected Against Discrimination by Transit Worker
Professor Art Leonard reports in his blog on an opinion regarding a transgender customer’s harassment suit against the New York Transit Authority. This opinion should be well-heeded by any employer that deals with the public -- rude treatment of transgender customers may result in a lawsuit. Employers can benefit from reviewing the facts of this complaint to determine how situations can rapidly get out of control. The right sort of training for employees can avoid this type of situation.
While the legal technicalities of this case are uninteresting except to state agencies granted immunity from local municipal laws, the immunity question does raise an issue of interest to those who drafted SONDA, the New York State anti-discrimination law that prohibited discrimination based on sexual orientation. Had that law, passed in 2002, included "gender identity or expression," the argument made here would never have arisen.
The plaintiff, Tracy Bumpus, alleges that she was having trouble using her metrocard in July 2006, and asked a transit worker, Smith, for assistance. She further alleged that the transit employee "using a loud voice, spoke a steady stream of discriminatory, transgender-phobic epithets in a pointed manner towards the plaintiff, for a period of approximately ten minutes and in the presence of other commuters; Other passengers who had witnessed Smith speaking to Bumpus followed the plaintiff off the subway car she had taken and proceeded to verbally harass and threaten her. Rather than slinking off in humiliation, Bumpus immediately contacted the Transit Authority and complained about this treatment. Unfortunately, as is all too often the case, the Transit Authority did not take effective action to stop the harassment, for Bumpus alleged that she ran into the same transit worker a few days later at the station, who pointed her out to other transit employees and they all laughed at Bumpus.
The TA initiated disciplinary proceedings against Smith through the union grievance procedure, but Bumpus never attended the scheduled disciplinary hearings. (As is often the case, notices from agencies like the TA conveniently never arrive.) The TA dropped the charges. Smith also filed a motion to dismiss the lawsuit, arguing that TA employees are immune to suit under the city’s Human Rights Law. She pointed to the New York Public Authorities Law § 1266(8), which states that:
Smith argued that this section meant that the local New York City Human Rights law was not applicable to the Transit Authority or its employees. She relied on a 2007 ruling by Justice Lawrence Knipel, specifically ruling that the law meant that the TA could not be sued under the city law. The judge in this case, however, disagreed with the prior ruling, interpreting the law to mean only that local laws may not conflict with the normal operations of the TA. The judge eloquently described the significance of the human rights law:
Since the application of the law in this case presented no conflict with the normal operations of the TA, the court refused to toss out the complaint.
Read the rest of the Leonard Link post here: http://newyorklawschool.typepad.com/leonardlink/2008/02/brooklyn-court.html
While the legal technicalities of this case are uninteresting except to state agencies granted immunity from local municipal laws, the immunity question does raise an issue of interest to those who drafted SONDA, the New York State anti-discrimination law that prohibited discrimination based on sexual orientation. Had that law, passed in 2002, included "gender identity or expression," the argument made here would never have arisen.
The plaintiff, Tracy Bumpus, alleges that she was having trouble using her metrocard in July 2006, and asked a transit worker, Smith, for assistance. She further alleged that the transit employee "using a loud voice, spoke a steady stream of discriminatory, transgender-phobic epithets in a pointed manner towards the plaintiff, for a period of approximately ten minutes and in the presence of other commuters; Other passengers who had witnessed Smith speaking to Bumpus followed the plaintiff off the subway car she had taken and proceeded to verbally harass and threaten her. Rather than slinking off in humiliation, Bumpus immediately contacted the Transit Authority and complained about this treatment. Unfortunately, as is all too often the case, the Transit Authority did not take effective action to stop the harassment, for Bumpus alleged that she ran into the same transit worker a few days later at the station, who pointed her out to other transit employees and they all laughed at Bumpus.
The TA initiated disciplinary proceedings against Smith through the union grievance procedure, but Bumpus never attended the scheduled disciplinary hearings. (As is often the case, notices from agencies like the TA conveniently never arrive.) The TA dropped the charges. Smith also filed a motion to dismiss the lawsuit, arguing that TA employees are immune to suit under the city’s Human Rights Law. She pointed to the New York Public Authorities Law § 1266(8), which states that:
"... no municipality or political subdivision, including but not limited to a county, city, village, town or school or other district shall have jurisdiction over any facilities of the authority and its subsidiaries, and New York City Transit Authority and its subsidiaries, or of their activities or operations. The local laws, resolutions, ordinances, rules and regulation of a municipality or political subdivision, heretofore or hereafter adopted, conflicting with this title or any rule or regulation of the authority or its subsidiaries, or New York City Transit Authority or its subsidiaries, shall not be applicable to the activities or operation of the Authority and its subsidiary, and the New York City Transit Authority and its subsidiaries except such facilities that are devoted to purposes other than transportation or transit purposes."
Smith argued that this section meant that the local New York City Human Rights law was not applicable to the Transit Authority or its employees. She relied on a 2007 ruling by Justice Lawrence Knipel, specifically ruling that the law meant that the TA could not be sued under the city law. The judge in this case, however, disagreed with the prior ruling, interpreting the law to mean only that local laws may not conflict with the normal operations of the TA. The judge eloquently described the significance of the human rights law:
"By riding the subway, a transgender person doesn’t become less of a person and lose the protection of the Human Rights Law. Clearly, the discriminatory behavior of the transit worker is not within the function of the NYCTA."
Since the application of the law in this case presented no conflict with the normal operations of the TA, the court refused to toss out the complaint.
Read the rest of the Leonard Link post here: http://newyorklawschool.typepad.com/leonardlink/2008/02/brooklyn-court.html
Sunday, April 29, 2007
New York State gender identity bill moves onward
GENDA, the New York State bill that would add gender identity to the State's non-discrimination statute, is slowly moving through the legislative process. It passed the Governmental Operations Committee, and now it has to go to the Codes Committee and then the Rules Committee. In 2003 it died in committee, so this doesn't mean much. But I'm proud of my representative, Michael Benedetto (D-Bronx) who voted YES. Good for you, Michael.
I discussed the bill and the state of the law in New York previously here. I also just noticed a great post on the Empire State Pride Agenda blog with links to some interesting articles and the text of the bill.
I know Empire State Pride Agenda is working on this, but I don't hear much from the wider gay community. I remember when they passed SONDA in 2002, and they told the transgender advocates to lobby for it despite the fact that it left transgender people out, that they would push for another bill to protect gender identity -- and it's 5 years later, and there's a few advocates talking about this but the wide public support needed seems absent. Now we're on to New York State same-sex marriage and DP benefits and everything else. Where's the love, people?
I discussed the bill and the state of the law in New York previously here. I also just noticed a great post on the Empire State Pride Agenda blog with links to some interesting articles and the text of the bill.
I know Empire State Pride Agenda is working on this, but I don't hear much from the wider gay community. I remember when they passed SONDA in 2002, and they told the transgender advocates to lobby for it despite the fact that it left transgender people out, that they would push for another bill to protect gender identity -- and it's 5 years later, and there's a few advocates talking about this but the wide public support needed seems absent. Now we're on to New York State same-sex marriage and DP benefits and everything else. Where's the love, people?
Monday, April 2, 2007
NY State Gender Non-Discrimination Legislation
From Autumn Sandeen over at Pam's House Blend, March 16th:
Over in New York, the Gender Expression Non-Discrimination Act (GENDA), which would ban discrimination on the basis of gender identity and expression in New York State, was reintroduced into that Legislature this week --the bill was introduced with a record 53 Assembly sponsors and 9 Senate sponsors.
As reported in The Advocate, Gay.com and PlanetOut.com: "Assemblyman Richard Gottfried and State Sen. Tom Duane, both Manhattan Democrats, re-introduced the bill after failed attempts in 2003 and 2006. The Empire State Pride Agenda has been working closely with Gottfried and Duane for several months. Both chambers will assign bill numbers to the legislation this week. "
The bill summary on the New York Assembly website, where the full text of the bill may also be viewed, notes that the bill defines "gender identity or expression" as "having or being perceived as having a gender identity, self image, appearance, behavior or expression whether or not that gender identity, self image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth; further includes offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes." It also notes that there is prior legislative history: A.7438/S.4794-A of 2005-06, which was not passed.
I note that there was a great deal of controversy when SONDA, the New York State Sexual Orientation Non-Discrimination Act, was passed in 2002. Transgender advocates wanted the bill to include gender identity, but the Empire State Pride Agenda and other NY gay advocacy organizations were against it. They promised to lobby for gender identity protection in the future. In the Open Letter from NYAGARA, written in 2002, during the internecine fight over SONDA, the NY Association for Gender Rights Advocacy pointed out the problem for gay employees posed by the failure to include gender identity in the bill, noting the Dawn Dawson case. It also gives an interesting interpretation of the history of SONDA and transgender advocacy in New York.
It's interesting that the NY attorney general says that transgender persons are protected by SONDA when they lose their jobs due to "perceived" sexual orientation. Of course, as readers of this blog know, sexual orientation is different from gender identity, but an employer who discriminates may not realize this, and consider a transgender person to be "gay", regardless of their actual sexual orientation.
Here is the state of the law as viewed by HRC:
NEW YORK
Gender identity protected? In some cases. While gender identity is not explicitly included in the state’s anti-discrimination law, courts have ruled that transsexual individuals can pursue anti-discrimination claims under the category of sex.
Sexual orientation protected? Yes. New York law explicitly prohibits discrimination on the basis of sexual orientation in public and private employment, public accommodations, housing, education and credit. Citations: Rentos v. OCE-Office Systems, 1996 U.S. Dist. LEXIS 19060 (S.D.N.Y. 1996); Buffong v. Castle on the Hudson, 2005 N.Y. Misc. LEXIS 3194 (N.Y. Sup. Ct. 2005); NY EXEC. LAW§ 296, 296-a.
As I have noted previously, new laws of this sort are seen by some as a signal that a community is favorable to a high tech economy, as suggested by the Florida Thesis (no relation to recent events in Florida). There are 7 cities and counties in New York that have enacted such laws prohibiting employment discrimination on the basis of gender identity: Albany, Buffalo, Ithaca, New York City, Rochester, Suffolk County, and Tompkins County.
The following 25 Fortune 1000 corporations in New York have policies prohibiting employment discrimination based on gender identity: Starwood Hotels, Pfizer, Viacom, ITT, CBS, Merrill Lynch, JP Morgan Chase, PepsiCo, Citigroup, North Fork, Lehman Brothers, MetLife, Corning, Moody's, Eastman Kodak, New York Times, Morgan Stanley, Con Ed, Bristol-Myers Squibb, Keyspan, American Express Co., IBM, Estee Lauder, Liz Claiborne, and Goldman Sachs.
The following 24 major New York employers also have such policies: CBS, Deloitte & Touche, Nixon Peabody, Cary Kane LLP, Loehmann's, ITT, HarperCollins, Barclays, gfn.com, Credit Suisse, New York Life, Cadwalader Wickersham & Taft, Con Ed, Ernst & Young, PricewaterhouseCoopers, KPMG, CMP Media, Accenture, Moody's, Deutsche Bank, Goldman Sachs, McKinsey & Co., Bausch & Lomb, and Corning.
I note that the Advocate article says that 86 New York-based companies have such policies, but the above is what I was able to find in HRC's database, and that number totals 49.
There are 68 Fortune 1000 companies in New York that do not have policies against this form of employment discrimination, and would be affected by this bill, if enacted: American Intl. Group, Verizon Communications, Altria Group, Morgan Stanley, Time Warner, Alcoa, TIAA-CREF, News Corp., Amerada Hess, Cendant, Loews, Marsh & McLennan, Bear Stearns, Colgate-Palmolive, Arrow Electronics, Omnicom Group, L-3 Communications, Guardian Life of America, Bank of New York, Avon, ITT Industries, Assurant, IAC/InterActiveCorp, Dover, Interpublic Group, McGraw-Hill, Asbury Automotive Group, Foot Locker, CIT Group, Cablevision Systems, Barnes & Noble, Henry Schein, Constellation Brands, M&T Bank Corp., NTL, CA, Warner Music Group, Polo Ralph Lauren, Jarden, Forest Laboratories, MasterCard, Leucadia National, ETrade Financial, Vornado Realty Trust, Reader's Digest, Tiffany, MBIA, Volt Info Sciences, Scholastic, Systemax, AnnTaylor Stores, National Fuel Gas, Sequa, Intl. Flavors & Frag., Phillips-Van Heusen, Pall, Dow Jones, Symbol Technologies, NBTY, Mutual of America Life, Coach, Jetblue Airways, Ambac Financial Group, Duane Reade, Warnaco Group, Jefferies Group, and Paychex
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Over in New York, the Gender Expression Non-Discrimination Act (GENDA), which would ban discrimination on the basis of gender identity and expression in New York State, was reintroduced into that Legislature this week --the bill was introduced with a record 53 Assembly sponsors and 9 Senate sponsors.
As reported in The Advocate, Gay.com and PlanetOut.com: "Assemblyman Richard Gottfried and State Sen. Tom Duane, both Manhattan Democrats, re-introduced the bill after failed attempts in 2003 and 2006. The Empire State Pride Agenda has been working closely with Gottfried and Duane for several months. Both chambers will assign bill numbers to the legislation this week. "
The bill summary on the New York Assembly website, where the full text of the bill may also be viewed, notes that the bill defines "gender identity or expression" as "having or being perceived as having a gender identity, self image, appearance, behavior or expression whether or not that gender identity, self image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth; further includes offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes." It also notes that there is prior legislative history: A.7438/S.4794-A of 2005-06, which was not passed.
I note that there was a great deal of controversy when SONDA, the New York State Sexual Orientation Non-Discrimination Act, was passed in 2002. Transgender advocates wanted the bill to include gender identity, but the Empire State Pride Agenda and other NY gay advocacy organizations were against it. They promised to lobby for gender identity protection in the future. In the Open Letter from NYAGARA, written in 2002, during the internecine fight over SONDA, the NY Association for Gender Rights Advocacy pointed out the problem for gay employees posed by the failure to include gender identity in the bill, noting the Dawn Dawson case. It also gives an interesting interpretation of the history of SONDA and transgender advocacy in New York.
It's interesting that the NY attorney general says that transgender persons are protected by SONDA when they lose their jobs due to "perceived" sexual orientation. Of course, as readers of this blog know, sexual orientation is different from gender identity, but an employer who discriminates may not realize this, and consider a transgender person to be "gay", regardless of their actual sexual orientation.
Here is the state of the law as viewed by HRC:
NEW YORK
Gender identity protected? In some cases. While gender identity is not explicitly included in the state’s anti-discrimination law, courts have ruled that transsexual individuals can pursue anti-discrimination claims under the category of sex.
Sexual orientation protected? Yes. New York law explicitly prohibits discrimination on the basis of sexual orientation in public and private employment, public accommodations, housing, education and credit. Citations: Rentos v. OCE-Office Systems, 1996 U.S. Dist. LEXIS 19060 (S.D.N.Y. 1996); Buffong v. Castle on the Hudson, 2005 N.Y. Misc. LEXIS 3194 (N.Y. Sup. Ct. 2005); NY EXEC. LAW§ 296, 296-a.
As I have noted previously, new laws of this sort are seen by some as a signal that a community is favorable to a high tech economy, as suggested by the Florida Thesis (no relation to recent events in Florida). There are 7 cities and counties in New York that have enacted such laws prohibiting employment discrimination on the basis of gender identity: Albany, Buffalo, Ithaca, New York City, Rochester, Suffolk County, and Tompkins County.
The following 25 Fortune 1000 corporations in New York have policies prohibiting employment discrimination based on gender identity: Starwood Hotels, Pfizer, Viacom, ITT, CBS, Merrill Lynch, JP Morgan Chase, PepsiCo, Citigroup, North Fork, Lehman Brothers, MetLife, Corning, Moody's, Eastman Kodak, New York Times, Morgan Stanley, Con Ed, Bristol-Myers Squibb, Keyspan, American Express Co., IBM, Estee Lauder, Liz Claiborne, and Goldman Sachs.
The following 24 major New York employers also have such policies: CBS, Deloitte & Touche, Nixon Peabody, Cary Kane LLP, Loehmann's, ITT, HarperCollins, Barclays, gfn.com, Credit Suisse, New York Life, Cadwalader Wickersham & Taft, Con Ed, Ernst & Young, PricewaterhouseCoopers, KPMG, CMP Media, Accenture, Moody's, Deutsche Bank, Goldman Sachs, McKinsey & Co., Bausch & Lomb, and Corning.
I note that the Advocate article says that 86 New York-based companies have such policies, but the above is what I was able to find in HRC's database, and that number totals 49.
There are 68 Fortune 1000 companies in New York that do not have policies against this form of employment discrimination, and would be affected by this bill, if enacted: American Intl. Group, Verizon Communications, Altria Group, Morgan Stanley, Time Warner, Alcoa, TIAA-CREF, News Corp., Amerada Hess, Cendant, Loews, Marsh & McLennan, Bear Stearns, Colgate-Palmolive, Arrow Electronics, Omnicom Group, L-3 Communications, Guardian Life of America, Bank of New York, Avon, ITT Industries, Assurant, IAC/InterActiveCorp, Dover, Interpublic Group, McGraw-Hill, Asbury Automotive Group, Foot Locker, CIT Group, Cablevision Systems, Barnes & Noble, Henry Schein, Constellation Brands, M&T Bank Corp., NTL, CA, Warner Music Group, Polo Ralph Lauren, Jarden, Forest Laboratories, MasterCard, Leucadia National, ETrade Financial, Vornado Realty Trust, Reader's Digest, Tiffany, MBIA, Volt Info Sciences, Scholastic, Systemax, AnnTaylor Stores, National Fuel Gas, Sequa, Intl. Flavors & Frag., Phillips-Van Heusen, Pall, Dow Jones, Symbol Technologies, NBTY, Mutual of America Life, Coach, Jetblue Airways, Ambac Financial Group, Duane Reade, Warnaco Group, Jefferies Group, and Paychex
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Tuesday, December 5, 2006
NYC rejects birth certificate change regs
The New York City Board of Health voted unanimously today to turn down the proposed regulations permitting transgender people to change their birth certificates prior to sex reassignment surgery. I blogged on this issue two weeks ago, reviewing the issue in detail.
The reason given by the health commissioner is that officials need to look more carefully at the issue, particularly to insure that it would not conflict with federal identity document rules being developed. But the Board of Health's own staff and an eight-member panel of transgender experts and vital records offices across the country reviewed this issue in depth for four years and made a strong recommendation in favor of the proposed regs. This would seem to constitute "in depth." And those federal identity rules are the only going to affect drivers' licenses, so the proposed Board regs couldn't conflict with it. (Here's the Real ID Act - check out Title II.)
One friend of mine who was involved with this effort was initially very optimistic, as the Board members seemed very positive, but then turned increasingly pessimistic as the media coverage mounted. It was his guess that the Board was going to fold under pressure. He was right.
The Reuters article also provides the following quote "For example, how can you send a person with a penis to a women's prison?" said one health department official who requested anonymity because he was not authorized to speak for the department. This statement betrays ignorance of the issues, because a change in birth certificate would not send require sending people with penises to women's prisons. As noted in my last blog on this issue, the recognition of a change of gender on a birth certificate does not mean that the change must be recognized for all purposes. At the same, I also note that placement of transgender persons by gender identity rather than physical anatomy in correctional institutions has been successfully instituted in facilities around the county. In addition, sex-segregated situations like homeless shelters has been accomplished successfully for years around North America, now including Boston, Toronto, San Francisco and, yes, New York. Based on this, the unnamed official's naive response suggests that the official has not done his homework.
While the Board voted down the proposal to allow a change of birth certificate before surgery, they did vote to provide new certificate with a changed gender, rather than the blanked out gender previously provided.
The reason given by the health commissioner is that officials need to look more carefully at the issue, particularly to insure that it would not conflict with federal identity document rules being developed. But the Board of Health's own staff and an eight-member panel of transgender experts and vital records offices across the country reviewed this issue in depth for four years and made a strong recommendation in favor of the proposed regs. This would seem to constitute "in depth." And those federal identity rules are the only going to affect drivers' licenses, so the proposed Board regs couldn't conflict with it. (Here's the Real ID Act - check out Title II.)
One friend of mine who was involved with this effort was initially very optimistic, as the Board members seemed very positive, but then turned increasingly pessimistic as the media coverage mounted. It was his guess that the Board was going to fold under pressure. He was right.
The Reuters article also provides the following quote "For example, how can you send a person with a penis to a women's prison?" said one health department official who requested anonymity because he was not authorized to speak for the department. This statement betrays ignorance of the issues, because a change in birth certificate would not send require sending people with penises to women's prisons. As noted in my last blog on this issue, the recognition of a change of gender on a birth certificate does not mean that the change must be recognized for all purposes. At the same, I also note that placement of transgender persons by gender identity rather than physical anatomy in correctional institutions has been successfully instituted in facilities around the county. In addition, sex-segregated situations like homeless shelters has been accomplished successfully for years around North America, now including Boston, Toronto, San Francisco and, yes, New York. Based on this, the unnamed official's naive response suggests that the official has not done his homework.
While the Board voted down the proposal to allow a change of birth certificate before surgery, they did vote to provide new certificate with a changed gender, rather than the blanked out gender previously provided.
Thursday, November 23, 2006
NYC Birth Certificate Changes
There has recently been much public debate on the issue of NYC's proposed regulations regarding change of sex on birth certificates. This is an issue that has been addressed by state legislatures for a long time. (HRC has lots of information about changing sex on birth certificates on its website.) NYC has long permitted changing the birth certificate of those who get sex reassignment surgery. Interestingly, the old rule simply blanks out the sex, and no sex is listed. The twist here is that NYC will now recognize put the opposite sex marker on the certificate, and permit this to be done for transgender people who have not yet had genital surgery, but could show substantial proof that they have undertaken other steps to irrevocably alter their gender-identity, such as hormone therapy. This is in recognition of the catch-22 faced by transgender people who obtain sex reassignment surgery: they can't get the surgery until they live for at least a year in the opposite gender role, but the government insists on outing them whenever they have to show government ID, including a birth certificate. I think the whole issue is a tempest in a teapot, but I submit it here for your consideration.
(I've previously blogged about this issue, contrasting the NYC proposal with the opposite direction taken by the Social Security Administration, which until recently had rules recognizing change of sex without requiring proof of surgery, as well as commenting on the privacy issues.)
The issue for corporate HR, of course, is what to do when government-issued IDs don't match. Many government-issued IDs don't require sex reassignment surgery, and the proposed NYC regs are a step forward in creating IDs that match.
Misconception: A changed birth certificate changes your sex
Before we get to the public debate, however, I think it important to clear up one misconception. The recognition of sex change on a birth certificate does not mean that the person is regarded as the new sex for all purposes. So far, courts have interpreted statutes and regulations recognizing change of sex on birth certificates very narrowly, finding that they do not require recognition of the new sex for purposes such as marriage, inheritance, employment, military service, and incarceration.
A recent example where the courts were squarely faced with this issue and the case received full appellate process, up to and including the U.S. Supreme Court (which denied certiorari), is the case of In Re Gardiner, 42 P.3d 120 (Kan. 2002). J’Noel Ball was assigned to the male sex at birth. She was diagnosed by mental health professionals with gender identity disorder, lived successfully for a period as the opposite sex, was administered cross-sex hormones and sex reassignment surgery and changed her birth certificate as authorized by state law to reflect her female status. On the authority of this, she married her husband, Marshall Gardiner. When Mr. Gardiner died without a will, Mrs. Gardiner was entitled, as his spouse, to half of his $3 million estate under Kansas law. However, Marshall’s estranged son, Joe Gardiner, contested this in the courts of Kansas on the grounds that J’Noel was, in fact, a male, who was not legally entitled to marry his father, and was therefore not entitled to the usual spousal share of the estate.
Mrs. Gardiner argued that the U.S. Constitution required the Kansas courts had to respect her Wisconsin birth certificate, which had been amended pursuant to Wisconsin statutes to state that she was female. She pointed to the section of the Contitution that says "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." J'Noel argued that this required the Kansas courts to credit the public record of the Wisconsin birth certificate that declared her female. Joe, the estranged son, argued that the Kansas courts could ignore the Wisconsin birth certificate.
Three different Kansas courts came up with three different rulings. The trial court ignored the Wisconsin birth certificate, ruling that medical and surgical intervention does not change sex, awarding the entire estate to the son. The case was appealed to the Kansas Court of Appeals, which also ignored the Wisconsin birth certificate, but ruled that sex can be changed with certain medical, surgical and legal procedures. Therefore, it was possible that J’Noel Gardiner was female at the time of her marriage. It sent the case back to the trial court to investigate whether the correct procedures were followed. Before that occurred, however, the son appealed to the highest court of Kansas, the Supreme Court of Kansas, which ignored the Wisconsin birth certificate for purposes of marriage, but ruled that it would have been valid for some purposes. However, the court ruled that it is impossible to change sex for purposes of marriage.
The Kansas Supreme Court noted that some courts had ruled that sex had been changed for purposes of marriage, based on “crediting a mental component, as well as an anatomical component, to each person's sexual identity.” However, it declined to go so far, holding that a woman is defined by her internal sexual organs, ova, chromosomes and capacity to bear children, not by her mind.
The Kansas Supreme Court is not alone in this view. Appellate courts in Texas and Florida have written similar opinions (Littleton v. Prange 1999, Kantaras v. Kantaras 2004).
Second Misconception: Sex reassignment surgery "makes" you into the opposite sex
A major problem here is that most people have misunderstood academic gender theory. They think that it means that sex means genitalia, and gender means psychology. This is a gross oversimplification that shows proof of the saying that a little knowledge is a dangerous thing. If you look at the etymology of the word "sex," it refers to a division -- a division of the human species into two groups with certain physical, psychological, behavioral and social characteristics. While many separate out gender role from sex, that only means that women can do the same intellectual and physical work as a male of similar education and physique. It doesn't mean that I need to have surgery in order to be transgender. If we make sex equals genitalia, then we have changed the meaning of the word to the functional opposite of what it meant at the beginning of the twentieth century. It will have moved from a reference to membership in a group with certain physical, psychological, behavioral and social characteristics to mean, instead, those physical characteristics alone. But this is not what "sex" means. "Sex" is not equal to genitalia. Removing my genitals does not make me into the opposite sex. Those who are experts in the field understand that "sex" involves many factors, including not only biological factors such as chromosomes and gonads, but also gender attribution, gender identity and gender expression. I could give you sixteen quotes to illustrate what I mean, but I've got an article coming out on the issue, so I won't belabor it here.
In addition, the state of the art in sex reassignment surgery is way lower than most people suppose. While surgeons have figured out how to replicate more or less the functionality necessary for a female, they have not figured out how to do the same for male functionality. This means that most female-to-male transsexuals do not have phalloplasty. So the surgery rule, in theory, means that you can change from male to female, but not from female to male. This would seem to work a hardship for FTMs, except that the way this works in practical reality is that most government authorities will accept an affidavit showing a hysterectomy. So, in fact, it turns out that it's much harder for MTFs. That makes sense, since society is much more frightened by MTFs. But it also demonstrates that this is not, in fact, an argument that changing sex requires obtaining the genitalia to match.
Opposing Viewpoints: The Daily News weighs in
The Gotham Gazette blog posted a nice summary of the Daily News debate on the proposed regs. The Yes essay is by Michael Silverman of the Transgender Legal Defense and Education Fund, who argues that such a move will help make life a little easier: “When they apply for jobs, they will no longer need to fear rejection because their ID doesn’t match the way they look; it now will. When they enter office buildings, they will no longer have to explain to security guards why the gender on their ID doesn’t match their appearance; it now will. When police officers stop them from using the bathroom that matches their gender presentation, they’ll have identification that says they have the right to be there.”
My take on this argument is that I agree because it's a governmental invasion of my constitutional right to privacy. The argument loses some persuasive force, however, because birth certificates have dual roles as documents of historical fact and as present-day ID. And their role as identity docs are practically obsolete. Everyone today uses their driver's licenses. Indeed, although the state of NJ, where I was born, would permit me to change my birth certificate, I haven't bothered to do it. How would it benefit me? I have little enough time as it is -- the last thing I need is another thing on my plate. One can simply go to the NY DMV, as I did in 1997, and present a letter from one's therapist saying that one is presenting more as female than as male (or vice versa), and get a license with a new gender marker. Since 1987 there has been no surgical requirement under NY DMV regs (procedure 4335). So who needs a birth certificate?
The linkage that saves this argument, however, and makes it ultimately persuasive, is the fact that under the Real ID Act, a federal law now in force, one is going to have to conform to federal regs in order to get a new driver's license, and my guess is that there will shortly be no way to get a driver's license in a new gender without conforming to federal regs and that probably means a birth certificate to match.
The No essay is by James Kirchick, who writes for the Independent Gay Forum. It's quite surprising to see a gay man arguing against transgender rights these days. He argues that transgender rights interfere with gay rights. He says the proposal amounts to “falsifying government documents” and “eliminating a physical standard for determining gender.” The problem with Kirchick's argument, besides his me-first-and-only attitude, is that he assumes that "sex" means genitalia. As noted above, this assumption is wrong. Kerchick also raises scenarios, such as gay marriage, that have nothing to do with a birth certificate or its use as identification. (“What if a man who, despite never having had his gender surgically changed, asserts he is a woman then wants to marry another man, despite gay marriage not being legal in New York State?”).
Not Realistic?: The Daily Trojan weighs in
A student at USC, Stephan Kwok, recently argued that the proposed law is not realistic. His arguments epitomize the traps awaiting those who have never thought through these issues. He falls into a trap similar to Kerchik's, asserting contradictorily that "without a sex reassignment surgery (and even with), their biological sex remains the same as it was at birth. Gender is a fluid social construct and can, thus, be changed, but sex - a biological statistic - cannot be." If it's a wholly biological statistic, why can't sex reassignment surgery change one's sex? The answer is that to Kwok, along with many others who haven't thought about it a whole lot, "sex" is a mysterious essence with no moving parts, and it can never be changed. But that's not right, because people do change their sex. I've seen it, and I've done it. This is not an academic exercise. I have a right to live as a female if I like - that's called life, liberty and the pursuit of happiness, and it's guaranteed to be protected from government invasion by the U.S. and state constitutions. From my point of view, Kwok's idea is the one that's not realistic. He's arguing that state-sponsored "outing" is needed. For what?
Mr. Kwok says "in medical emergency, a patient's treatment will depend on whether he or she is a man, woman, or a transgender - not as whatever is chosen." Wait a minute - in an emergency, are they going to call for my birth certificate? And what emergency medical procedures are specific to women? None, in fact. He raises more issues that have nothing to do with birth certificates or identification, raising questions about sports leagues and marriage. But these are questions that are not going to be decided by a birth certificate, regardless of what letter is put there. He says the proposed regs wouldn't promote acceptance of transgender individuals because "transgendering is an exercise in blurring the line between sexes." Many people think this way, but it demonstrates ignorance of the reality of transgender lives. In fact, transgendering is not about blurring the line. For the transgender people affected by the proposed regs, it's very definitely about keeping the line clear and avoiding having people goggle at you before they fire you or kick you out of the apartment building when your birth certificate outs you.
The Even More Radical Left
Just when you were thinking that I was to the left of the left, I am rescued by the article from
GayCityNews - "Birth Certificate Policy Must Reflect Reality of Trans Lives." In this column, my friend Pauline Park writes, along with Michael Silverman, that the proposed requirements for obtaining an amended birth certificate are so onerous and burdensome that most transgendered people will not qualify. The new policy requires a transgendered person to provide an affidavit from a doctor and a mental health professional, attesting to medical treatments of hormones and psychotherapy. Park and Silverman note that these expensive treatments are unavailable to poor transgender people of color, that they are medically contraindicated for some, and that most transgender people live in the opposite gender role without such treatments. They make the point that "throughout history-and before the development of hormone therapy and sex reassignment surgery-there have been people we would call transgendered who lived in the gender opposite their birth sex." They note that expensive psychotherapy is unnecessary to the coming out process. They request a more inclusive process that does not require affidavits from doctors. (They ought to note, but don't, that many transgender people purchase black market hormones because hormones are ridiculously expensive and the doctors can't write an affidavit about black market hormones.)
Kudos to Pauline and Michael on raising some good points. More education of society is needed to reach this step, however, particularly on the "sex equals genitalia" point. Also, it will take some time for our fear-soaked society to realize that there isn't going to be a flood of people trying to "game the system." The regs might be going a bit overboard with the affidavits, but it's a step forward.
(I've previously blogged about this issue, contrasting the NYC proposal with the opposite direction taken by the Social Security Administration, which until recently had rules recognizing change of sex without requiring proof of surgery, as well as commenting on the privacy issues.)
The issue for corporate HR, of course, is what to do when government-issued IDs don't match. Many government-issued IDs don't require sex reassignment surgery, and the proposed NYC regs are a step forward in creating IDs that match.
Misconception: A changed birth certificate changes your sex
Before we get to the public debate, however, I think it important to clear up one misconception. The recognition of sex change on a birth certificate does not mean that the person is regarded as the new sex for all purposes. So far, courts have interpreted statutes and regulations recognizing change of sex on birth certificates very narrowly, finding that they do not require recognition of the new sex for purposes such as marriage, inheritance, employment, military service, and incarceration.
A recent example where the courts were squarely faced with this issue and the case received full appellate process, up to and including the U.S. Supreme Court (which denied certiorari), is the case of In Re Gardiner, 42 P.3d 120 (Kan. 2002). J’Noel Ball was assigned to the male sex at birth. She was diagnosed by mental health professionals with gender identity disorder, lived successfully for a period as the opposite sex, was administered cross-sex hormones and sex reassignment surgery and changed her birth certificate as authorized by state law to reflect her female status. On the authority of this, she married her husband, Marshall Gardiner. When Mr. Gardiner died without a will, Mrs. Gardiner was entitled, as his spouse, to half of his $3 million estate under Kansas law. However, Marshall’s estranged son, Joe Gardiner, contested this in the courts of Kansas on the grounds that J’Noel was, in fact, a male, who was not legally entitled to marry his father, and was therefore not entitled to the usual spousal share of the estate.
Mrs. Gardiner argued that the U.S. Constitution required the Kansas courts had to respect her Wisconsin birth certificate, which had been amended pursuant to Wisconsin statutes to state that she was female. She pointed to the section of the Contitution that says "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." J'Noel argued that this required the Kansas courts to credit the public record of the Wisconsin birth certificate that declared her female. Joe, the estranged son, argued that the Kansas courts could ignore the Wisconsin birth certificate.
Three different Kansas courts came up with three different rulings. The trial court ignored the Wisconsin birth certificate, ruling that medical and surgical intervention does not change sex, awarding the entire estate to the son. The case was appealed to the Kansas Court of Appeals, which also ignored the Wisconsin birth certificate, but ruled that sex can be changed with certain medical, surgical and legal procedures. Therefore, it was possible that J’Noel Gardiner was female at the time of her marriage. It sent the case back to the trial court to investigate whether the correct procedures were followed. Before that occurred, however, the son appealed to the highest court of Kansas, the Supreme Court of Kansas, which ignored the Wisconsin birth certificate for purposes of marriage, but ruled that it would have been valid for some purposes. However, the court ruled that it is impossible to change sex for purposes of marriage.
The Kansas Supreme Court noted that some courts had ruled that sex had been changed for purposes of marriage, based on “crediting a mental component, as well as an anatomical component, to each person's sexual identity.” However, it declined to go so far, holding that a woman is defined by her internal sexual organs, ova, chromosomes and capacity to bear children, not by her mind.
The Kansas Supreme Court is not alone in this view. Appellate courts in Texas and Florida have written similar opinions (Littleton v. Prange 1999, Kantaras v. Kantaras 2004).
Second Misconception: Sex reassignment surgery "makes" you into the opposite sex
A major problem here is that most people have misunderstood academic gender theory. They think that it means that sex means genitalia, and gender means psychology. This is a gross oversimplification that shows proof of the saying that a little knowledge is a dangerous thing. If you look at the etymology of the word "sex," it refers to a division -- a division of the human species into two groups with certain physical, psychological, behavioral and social characteristics. While many separate out gender role from sex, that only means that women can do the same intellectual and physical work as a male of similar education and physique. It doesn't mean that I need to have surgery in order to be transgender. If we make sex equals genitalia, then we have changed the meaning of the word to the functional opposite of what it meant at the beginning of the twentieth century. It will have moved from a reference to membership in a group with certain physical, psychological, behavioral and social characteristics to mean, instead, those physical characteristics alone. But this is not what "sex" means. "Sex" is not equal to genitalia. Removing my genitals does not make me into the opposite sex. Those who are experts in the field understand that "sex" involves many factors, including not only biological factors such as chromosomes and gonads, but also gender attribution, gender identity and gender expression. I could give you sixteen quotes to illustrate what I mean, but I've got an article coming out on the issue, so I won't belabor it here.
In addition, the state of the art in sex reassignment surgery is way lower than most people suppose. While surgeons have figured out how to replicate more or less the functionality necessary for a female, they have not figured out how to do the same for male functionality. This means that most female-to-male transsexuals do not have phalloplasty. So the surgery rule, in theory, means that you can change from male to female, but not from female to male. This would seem to work a hardship for FTMs, except that the way this works in practical reality is that most government authorities will accept an affidavit showing a hysterectomy. So, in fact, it turns out that it's much harder for MTFs. That makes sense, since society is much more frightened by MTFs. But it also demonstrates that this is not, in fact, an argument that changing sex requires obtaining the genitalia to match.
Opposing Viewpoints: The Daily News weighs in
The Gotham Gazette blog posted a nice summary of the Daily News debate on the proposed regs. The Yes essay is by Michael Silverman of the Transgender Legal Defense and Education Fund, who argues that such a move will help make life a little easier: “When they apply for jobs, they will no longer need to fear rejection because their ID doesn’t match the way they look; it now will. When they enter office buildings, they will no longer have to explain to security guards why the gender on their ID doesn’t match their appearance; it now will. When police officers stop them from using the bathroom that matches their gender presentation, they’ll have identification that says they have the right to be there.”
My take on this argument is that I agree because it's a governmental invasion of my constitutional right to privacy. The argument loses some persuasive force, however, because birth certificates have dual roles as documents of historical fact and as present-day ID. And their role as identity docs are practically obsolete. Everyone today uses their driver's licenses. Indeed, although the state of NJ, where I was born, would permit me to change my birth certificate, I haven't bothered to do it. How would it benefit me? I have little enough time as it is -- the last thing I need is another thing on my plate. One can simply go to the NY DMV, as I did in 1997, and present a letter from one's therapist saying that one is presenting more as female than as male (or vice versa), and get a license with a new gender marker. Since 1987 there has been no surgical requirement under NY DMV regs (procedure 4335). So who needs a birth certificate?
The linkage that saves this argument, however, and makes it ultimately persuasive, is the fact that under the Real ID Act, a federal law now in force, one is going to have to conform to federal regs in order to get a new driver's license, and my guess is that there will shortly be no way to get a driver's license in a new gender without conforming to federal regs and that probably means a birth certificate to match.
The No essay is by James Kirchick, who writes for the Independent Gay Forum. It's quite surprising to see a gay man arguing against transgender rights these days. He argues that transgender rights interfere with gay rights. He says the proposal amounts to “falsifying government documents” and “eliminating a physical standard for determining gender.” The problem with Kirchick's argument, besides his me-first-and-only attitude, is that he assumes that "sex" means genitalia. As noted above, this assumption is wrong. Kerchick also raises scenarios, such as gay marriage, that have nothing to do with a birth certificate or its use as identification. (“What if a man who, despite never having had his gender surgically changed, asserts he is a woman then wants to marry another man, despite gay marriage not being legal in New York State?”).
Not Realistic?: The Daily Trojan weighs in
A student at USC, Stephan Kwok, recently argued that the proposed law is not realistic. His arguments epitomize the traps awaiting those who have never thought through these issues. He falls into a trap similar to Kerchik's, asserting contradictorily that "without a sex reassignment surgery (and even with), their biological sex remains the same as it was at birth. Gender is a fluid social construct and can, thus, be changed, but sex - a biological statistic - cannot be." If it's a wholly biological statistic, why can't sex reassignment surgery change one's sex? The answer is that to Kwok, along with many others who haven't thought about it a whole lot, "sex" is a mysterious essence with no moving parts, and it can never be changed. But that's not right, because people do change their sex. I've seen it, and I've done it. This is not an academic exercise. I have a right to live as a female if I like - that's called life, liberty and the pursuit of happiness, and it's guaranteed to be protected from government invasion by the U.S. and state constitutions. From my point of view, Kwok's idea is the one that's not realistic. He's arguing that state-sponsored "outing" is needed. For what?
Mr. Kwok says "in medical emergency, a patient's treatment will depend on whether he or she is a man, woman, or a transgender - not as whatever is chosen." Wait a minute - in an emergency, are they going to call for my birth certificate? And what emergency medical procedures are specific to women? None, in fact. He raises more issues that have nothing to do with birth certificates or identification, raising questions about sports leagues and marriage. But these are questions that are not going to be decided by a birth certificate, regardless of what letter is put there. He says the proposed regs wouldn't promote acceptance of transgender individuals because "transgendering is an exercise in blurring the line between sexes." Many people think this way, but it demonstrates ignorance of the reality of transgender lives. In fact, transgendering is not about blurring the line. For the transgender people affected by the proposed regs, it's very definitely about keeping the line clear and avoiding having people goggle at you before they fire you or kick you out of the apartment building when your birth certificate outs you.
The Even More Radical Left
Just when you were thinking that I was to the left of the left, I am rescued by the article from
GayCityNews - "Birth Certificate Policy Must Reflect Reality of Trans Lives." In this column, my friend Pauline Park writes, along with Michael Silverman, that the proposed requirements for obtaining an amended birth certificate are so onerous and burdensome that most transgendered people will not qualify. The new policy requires a transgendered person to provide an affidavit from a doctor and a mental health professional, attesting to medical treatments of hormones and psychotherapy. Park and Silverman note that these expensive treatments are unavailable to poor transgender people of color, that they are medically contraindicated for some, and that most transgender people live in the opposite gender role without such treatments. They make the point that "throughout history-and before the development of hormone therapy and sex reassignment surgery-there have been people we would call transgendered who lived in the gender opposite their birth sex." They note that expensive psychotherapy is unnecessary to the coming out process. They request a more inclusive process that does not require affidavits from doctors. (They ought to note, but don't, that many transgender people purchase black market hormones because hormones are ridiculously expensive and the doctors can't write an affidavit about black market hormones.)
Kudos to Pauline and Michael on raising some good points. More education of society is needed to reach this step, however, particularly on the "sex equals genitalia" point. Also, it will take some time for our fear-soaked society to realize that there isn't going to be a flood of people trying to "game the system." The regs might be going a bit overboard with the affidavits, but it's a step forward.
Friday, October 6, 2006
New York City eases ID rules
As noted in previous blogs, changing identification records for transgender employees presents tricky administrative challenges. One of the major questions has been how new Social Security Administration and Homeland Security rules, which restrict change of gender on SSA accounts (and require investigation of discrepancies with corporate records), will affect transgender employees. Unlike the old SSA rules, which recognized change of sex without proof of surgery, the new rules seem to require genital surgery (though they don't in fact specify what kind of surgery) to permit a change of gender on SSA records (though it is unclear, particularly with regard to how that would affect female-to-male transsexuals). But there are many other forms of identification besides SSA records, and many follow older guidelines that only require proof that the person is living in the opposite gender, regardless of their surgical status. What happens when different forms of identification show different genders?
The question is sharpened by New York City's recent proposal to change its rules to allow birth records to reflect change of gender. It would allow changes for people who have not had genital surgery, but could show substantial proof that they have undertaken other steps to irrevocably alter their gender-identity, such as hormone therapy. I applaud this move.
As an issue of governmental power, I believe that the right to privacy encompasses one who lives in the opposite gender role, regardless of their surgical status. A government requirement that one's identification, which nowadays must be produced to go into many buildings, as well as for all sorts of services, bear a gender marker that "outs" one to every officious clerk that asks for ID, is closely analogous to requiring a sign around one's neck declaring genital status. It doesn't require a constitutional scholar to know that the sign requirement is unconstitutional. (For those of you who wish to consider the privacy issues involved, I published an article on this issue in the Journal of Law & Sexuality in 2001, "The Gender Caste System: Identity, Privacy and Heteronormativity." Interestingly, it was rather prescient in relying on the supposedly-dead "right to privacy" well before the 2003 Lawrence case, which revived the principle.)
Having said that, what should HR departments do when presented with an SSA account that says "F," and a birth certificate that says "M"?
The question is sharpened by New York City's recent proposal to change its rules to allow birth records to reflect change of gender. It would allow changes for people who have not had genital surgery, but could show substantial proof that they have undertaken other steps to irrevocably alter their gender-identity, such as hormone therapy. I applaud this move.
As an issue of governmental power, I believe that the right to privacy encompasses one who lives in the opposite gender role, regardless of their surgical status. A government requirement that one's identification, which nowadays must be produced to go into many buildings, as well as for all sorts of services, bear a gender marker that "outs" one to every officious clerk that asks for ID, is closely analogous to requiring a sign around one's neck declaring genital status. It doesn't require a constitutional scholar to know that the sign requirement is unconstitutional. (For those of you who wish to consider the privacy issues involved, I published an article on this issue in the Journal of Law & Sexuality in 2001, "The Gender Caste System: Identity, Privacy and Heteronormativity." Interestingly, it was rather prescient in relying on the supposedly-dead "right to privacy" well before the 2003 Lawrence case, which revived the principle.)
Having said that, what should HR departments do when presented with an SSA account that says "F," and a birth certificate that says "M"?
Thursday, September 7, 2006
NYC lawyer's association to address transgender legal rights
Here's an interesting seminar coming up in New York City at the Association of the Bar of the City of New York:
A panel discussion about current judicial, legislative, and political developments on the local, state, and federal levels, affecting the legal and civil rights of transgendered persons. Tuesday, October 17, 2006 7-9 pm
Now, a lot of you out there might think that New York City is so transgender friendly that New York City lawyers would have to deal with transgender issues on a daily basis and know all about it. However, the truth is that most transgender people don't have the type of jobs that would interest the plaintiff's bar, and even when they do, your average judge and jury doesn't always see anti-trans behavior as discriminatory. If you think I'm exaggerating, check out the recent ruling by a Manhattan judge that transgender persons cannot change their names to one traditionally associated with the opposite sex.
At the same time, however, that is beginning to change, as more transgender people of the middle classes are able to retain their jobs after transition, and feel free to retain some visibility. In addition, New York City recently passed a law in 2002 providing explicit protection on the basis of "gender identity," so it's now on the radar of the plaintiff's bar (though the state courts have interpreted protection for transgender employees for a decade, which shows you the practical difference between a court opinion and a statute). That means the corporate bar needs to ante up, and they are.
In addition, a large number of employers in the New York City area have their own EEO policies that include "gender identity," so lawyers need to understand these issues. These companies read like Who's Who, including ITT, Barclays, HarperCollins, Nixon Peabody, Deloitte & Touche, Con Ed, Keyspan, Credit Suisse, New York Life, MetLife, Ernst & Young, PricewaterhouseCoopers, Cadwalader, KPMG, Pepsi., New York Times, Viacom, IBM, Bristol-Myers Squibb, Deutsche Bank, Starwood Hotels, Merrill Lynch, Estee Lauder, Accenture, Morgan Stanley, Goldman Sachs, American Express, Citigroup, J.P. Morgan Chase, Pfizer, and Lehman Brothers.
The speakers are an interesting bunch, so it promises to be an interesting evening. The panel features some transgender lawyers, which is interesting in itself; a sign that the community is coming of age.
One of the organizations, the Sylvia Rivera Law Project, which is dedicated to transgender legal issues, has much useful information on transgender employee issues, as well as info on that always fascinating topic: the bathroom. They also have a link to the full text of the NYC guidelines, a ten page booklet which specifically discusses what is and is not permitted under NYC law. These should be instructive for HR managers out there who are wondering what kinds of actions are or are not appropriate under their company's "gender identity" EEO policies.
A panel discussion about current judicial, legislative, and political developments on the local, state, and federal levels, affecting the legal and civil rights of transgendered persons. Tuesday, October 17, 2006 7-9 pm
Now, a lot of you out there might think that New York City is so transgender friendly that New York City lawyers would have to deal with transgender issues on a daily basis and know all about it. However, the truth is that most transgender people don't have the type of jobs that would interest the plaintiff's bar, and even when they do, your average judge and jury doesn't always see anti-trans behavior as discriminatory. If you think I'm exaggerating, check out the recent ruling by a Manhattan judge that transgender persons cannot change their names to one traditionally associated with the opposite sex.
At the same time, however, that is beginning to change, as more transgender people of the middle classes are able to retain their jobs after transition, and feel free to retain some visibility. In addition, New York City recently passed a law in 2002 providing explicit protection on the basis of "gender identity," so it's now on the radar of the plaintiff's bar (though the state courts have interpreted protection for transgender employees for a decade, which shows you the practical difference between a court opinion and a statute). That means the corporate bar needs to ante up, and they are.
In addition, a large number of employers in the New York City area have their own EEO policies that include "gender identity," so lawyers need to understand these issues. These companies read like Who's Who, including ITT, Barclays, HarperCollins, Nixon Peabody, Deloitte & Touche, Con Ed, Keyspan, Credit Suisse, New York Life, MetLife, Ernst & Young, PricewaterhouseCoopers, Cadwalader, KPMG, Pepsi., New York Times, Viacom, IBM, Bristol-Myers Squibb, Deutsche Bank, Starwood Hotels, Merrill Lynch, Estee Lauder, Accenture, Morgan Stanley, Goldman Sachs, American Express, Citigroup, J.P. Morgan Chase, Pfizer, and Lehman Brothers.
The speakers are an interesting bunch, so it promises to be an interesting evening. The panel features some transgender lawyers, which is interesting in itself; a sign that the community is coming of age.
One of the organizations, the Sylvia Rivera Law Project, which is dedicated to transgender legal issues, has much useful information on transgender employee issues, as well as info on that always fascinating topic: the bathroom. They also have a link to the full text of the NYC guidelines, a ten page booklet which specifically discusses what is and is not permitted under NYC law. These should be instructive for HR managers out there who are wondering what kinds of actions are or are not appropriate under their company's "gender identity" EEO policies.
Tuesday, August 29, 2006
School District: A+ for Diversity
Here is a lesson in creating a successful transition in a customer-facing organization. Time will tell how this approach will fare, but I think it is well-calculated to reduce the anxieties associated with diversity.
A transgender high school teacher is transitioning in New York State. This is an issue that has arisen before with some regularity since the 1970s, though the Rochester Democrat and Chronicle, in reporting on the situation, says that it appears "unique not just for this area but for the entire country." I've discussed the Paula Grossman court case from the early 1970s, and in the news there have been, to name a few, Dana Rivers and Jennifer Wilhelmi in California, Lily McBeth in New Jersey, Randey Michelle Gordon in New York, Debra Davis and Alyssa Williams in Minnesota, and Michelle Hendricks in Connecticut.
The situation may not be unique, but the aplomb with which the school district is handling it is.
Batavia, New York is a small suburb of Buffalo, and a two-hour car ride from the red state of Ohio. Rather than dismissal, reassignment or secrecy, however, the usual ways of handling this issue, the Batavia City School District held a community discussion on the issue for parents, and will discuss the issue with students on the first day of classes. There will also be a further meeting for the entire community a week after school begins to watch a video presentation about transgendered people. The district held a meeting for parents last night featuring the school district's attorney and a gender identity expert, who discussed the legal protections and medical issues surrounding those who wish to live their lives as transgendered people. The district is holding the community meetings with the teacher's permission. However, the district's attorney said the district would not reveal the teacher's identity.
Here's more news coverage: An interesting audio clip: WBEN 930 : Meeting In Batavia Tonight On Transgender Teacher A negative story from NBC News, which quotes only fearful parents: http://www.wstm.com/Global/story.asp?S=5337818&nav=2aKD This story's more balanced, and has an interesting picture: http://www.13wham.com/news/local/story.aspx?content_id=37B1967F-6A22-4437-9B1B-80DED332EC5F
A transgender high school teacher is transitioning in New York State. This is an issue that has arisen before with some regularity since the 1970s, though the Rochester Democrat and Chronicle, in reporting on the situation, says that it appears "unique not just for this area but for the entire country." I've discussed the Paula Grossman court case from the early 1970s, and in the news there have been, to name a few, Dana Rivers and Jennifer Wilhelmi in California, Lily McBeth in New Jersey, Randey Michelle Gordon in New York, Debra Davis and Alyssa Williams in Minnesota, and Michelle Hendricks in Connecticut.
The situation may not be unique, but the aplomb with which the school district is handling it is.
Batavia, New York is a small suburb of Buffalo, and a two-hour car ride from the red state of Ohio. Rather than dismissal, reassignment or secrecy, however, the usual ways of handling this issue, the Batavia City School District held a community discussion on the issue for parents, and will discuss the issue with students on the first day of classes. There will also be a further meeting for the entire community a week after school begins to watch a video presentation about transgendered people. The district held a meeting for parents last night featuring the school district's attorney and a gender identity expert, who discussed the legal protections and medical issues surrounding those who wish to live their lives as transgendered people. The district is holding the community meetings with the teacher's permission. However, the district's attorney said the district would not reveal the teacher's identity.
Here's more news coverage: An interesting audio clip: WBEN 930 : Meeting In Batavia Tonight On Transgender Teacher A negative story from NBC News, which quotes only fearful parents: http://www.wstm.com/Global/story.asp?S=5337818&nav=2aKD This story's more balanced, and has an interesting picture: http://www.13wham.com/news/local/story.aspx?content_id=37B1967F-6A22-4437-9B1B-80DED332EC5F
Monday, August 21, 2006
Chic restaurant sued by transgender employee
A story in the NY Daily News on Friday tells the story of a court ruling permitting chef Eric Buffong to go forward with his discrimination suit against Castle on the Hudson. "Before his fellow cooks discovered that he was born Erica, Eric Buffong said he was known only as the rising star in their ritzy Westchester restaurant. But within weeks of a colleague brandishing a high school yearbook photo showing him as a woman, Buffong became a pariah in the kitchen and was swiftly fired, he said." It's interesting that this story is coming out now, since the ruling was issued in August of last year. It's not even legal news, since the NY courts first recognized the rights of transgender employees through state law in 1977. But it is news now, since it's in the Daily News.
The restaurant claimed that the employee had no case because transgender employees have no legal protections. In fact, they might not be entirely blamed for thinking so, since "gender identity" is not mentioned in the NY state law, which prohibits discrimination based on "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status."
Nonetheless, the judge's brief opinion in Buffong v. Castle on Hudson (2005 WL 4658320) noted that, if one reads court opinions, they have long held that the NY state definition of "sex" covers transgendered persons, citing Richards v. United States Tennis Assn., 93 Misc.2d 713 (Supreme Ct. New York 1977), a fascinating case in its own right. The judge also referenced some recent cases in New York affirming that ruling.
Perhaps the New York legislature ought to put "gender identity" in the statute so everyone can see it right up front.
The restaurant claimed that the employee had no case because transgender employees have no legal protections. In fact, they might not be entirely blamed for thinking so, since "gender identity" is not mentioned in the NY state law, which prohibits discrimination based on "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status."
Nonetheless, the judge's brief opinion in Buffong v. Castle on Hudson (2005 WL 4658320) noted that, if one reads court opinions, they have long held that the NY state definition of "sex" covers transgendered persons, citing Richards v. United States Tennis Assn., 93 Misc.2d 713 (Supreme Ct. New York 1977), a fascinating case in its own right. The judge also referenced some recent cases in New York affirming that ruling.
Perhaps the New York legislature ought to put "gender identity" in the statute so everyone can see it right up front.
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