Showing posts with label Law - Municipal and County. Show all posts
Showing posts with label Law - Municipal and County. Show all posts
Saturday, September 17, 2011
Springfield commissioners pass anti-discrimination ordinance - Springfield Sun - Montgomery News
Springfield commissioners pass anti-discrimination ordinance - Springfield Sun - Montgomery News: After nearly a year of discussion, the Springfield, Pennsylvania, Township Board of Commissioners voted 4-2 Wednesday to pass an anti-discrimination ordinance in front of a full room of mostly supportive community members.
Wednesday, February 16, 2011
Asheville should recognize rights of all citizens | The Asheville Citizen-Times | citizen-times.com
Asheville should recognize rights of all citizens | The Asheville Citizen-Times | citizen-times.com
"Asheville's [North Carolina] City Council will soon vote on a resolution to affirm and protect the equal rights of all its citizens...Asheville's resolution is, therefore, bold, brave and praiseworthy."
The proposed resolution would include gender identity and expression. http://goqnotes.com/9975/western-asheville-coalition-pushes-for-lgbt-rights/
"Asheville's [North Carolina] City Council will soon vote on a resolution to affirm and protect the equal rights of all its citizens...Asheville's resolution is, therefore, bold, brave and praiseworthy."
The proposed resolution would include gender identity and expression. http://goqnotes.com/9975/western-asheville-coalition-pushes-for-lgbt-rights/
Friday, December 24, 2010
And Grand County Makes 10 : QSaltLake – Utah's Gay and Lesbian News and Entertainment Magazine
And Grand County Makes 10 : QSaltLake – Utah's Gay and Lesbian News and Entertainment Magazine: "Just two days before Christmas Eve, the Grand County Council became the 10th municipal body in Utah to protect gay, lesbian, bisexual and transgender people from job and housing discrimination."
Tuesday, July 15, 2008
Fear and Loathing in Gainesville, Florida
According to the college newspaper at the University of Florida in Gainesville, Florida, a local group opposing the recently-passed gender identity civil rights ordinance will have enough signatures by July 29 to put the issue to the voters. It sets out the opponents' objections in great detail.
Paradoxically, I think this well-written article is of immense value to proponents of gender identity law and policy, and should be scrutinized with care. It is an excellent categorization of some of the strongest arguments marshalled against gender identity laws and policies. While proponents feel strongly that such arguments are incorrect, their ability to counteract such arguments in the court of public opinion has been limited, as demonstrated by the removal of gender identity from the federal ENDA bill this past year.
The reason that it has been so hard to counteract these arguments is because they are based on prejudices. Social research, such as that by Gordon Allport, shows that prejudices do not change based on logical arguments, because they are emotional beliefs not susceptible to change by means of reason. Rather, prejudice is inversely related to intergroup contact, that is, the more people are in contact with the hated group, the less prejudice exists within those people. The mechanism is assumed to be that people will see with their own eyes and through their own experience that the negative judgments are not as generally true as they had been led to believe. Other researchers have found that reducing prejudice in the classroom setting cannot be effected by arguing logically with expressions of prejudice, but is most effectively done by supressing such expressions, in addition to providing education on the issues. This is why civil rights laws are important in themselves as a means of reducing prejudice, even at the same time that education must be provided in order to pass the law. Prejudice feeds on itself, and repetitions of prejudicial actions breed more prejudice, which is not susceptible to logical argument. Reading the arguments of the law's opponents, one sees that the arguments themselves are based on a worldview in which these arguments make plenty of sense, if one has no experience whatsoever of transgender people or gender identity law on which to base one's judgment. Let us examine the community organization's objection to the Gainesville ordinance.
The community organization is Citizens for Good Public Policy. The organization's website is http://citizensforgoodpublicpolicy.org/. The organization's main argument is based on the premise that gender identity is psychological in nature, rather than tied to biological sex. Therefore, it is not susceptible of objective proof, and the law allows anyone, including sexual predators, to gain access to private women's spaces if they claim that they have an "inner sense" of being female. The website further argues that, based on statistics, there are likely less than 10 transgender people in Gainesville, but there are 263 registered sex offenders, thereby placing women and children at risk. I enjoy good statistical research, as it can be more persuasive than anecdotal evidence. In fact, I teach research methods. However, there are three categories of statistical flaws that most commonly show up in erroneous research: flawed research question or hypothesis, errors in data collection, and improper assumptions about the connection between the evidence and the ultimate conclusion. This shows signs of all three.
The article quotes an official of the group, who expresses concerns that the ordinance does not require any form of registration or official proof of being transgender, other than simply saying so, which can lead to people taking advantage of the ordinance.
This is a novel twist on an old argument. Variations of this argument have been used in Montgomery County, Md. and other places.) The usual argument is that transgender people themselves are sexual predators seeking to gain access to women's spaces. The twist here is that there is no claim that transgender people are sexual predators, but there are those who will take advantage of the law to prey on women and girls. Thus, the argument is not based on any inherently negative quality of transgender people themselves, but upon the possibility that others with nefarious intent will game the system.
In another article, the following example was given by the Thomas More Law Center, a non-profit law firm working with the Gainesville group: "For example, Tampa Police arrested Robert Johnson in February 2008 for hanging out in the women’s bathroom at ‘Lifestyle Fitness’ and watching women in an undressed state. The ‘gender identity’ category, which is unique to the City of Gainesville, would provide legal protection to a similar offender in Gainesville." The Thomas More Law Center is mistaken in its assertion that the gender identity category is unique to Gainesville, as Key West, Monroe County, West Palm Beach and Largo have gender identity civil rights laws. More significantly, notably absent from the example given is any false claim of gender identity. The accused, a teenager, claimed that he had not realized that he had entered the women's room, and, afraid to be seen, had hidden until he worked up the courage to emerge, when he was spotted. Thus, it is not necessary to invent a new gender identity in order to work up a defense for a male in a female dressing room. In fact, a false defense of non-traditional gender identity can be easily disproven because those who have a non-traditional gender identity typically have worked with health professionals and others who can document a prior expression of non-traditional gender identity. Thus, if someone were acting as Mr. Johnson did, and then claimed to police that he had a female gender identity, it would be easy for that person to give evidence of a prior expression of female gender identity.
I saw this "gaming the system" argument when I trained 300 homeless shelter staff for the New York City Department of Homeless Services. In each training session of about 20 people, there were one or two staff members who loudly proclaimed that they were not prejudiced, but that they had long experience with the homeless, and some guys would do anything to get with the women. I patiently explained that there were several documented examples of transgender people being abused in the system, and no examples of women being abused by transgender people (or those falsely claiming to be). They had no information to the contrary, but refused to budge. After a while, I sensed that their arguments had nothing to do with logic, and were related to stereotypes and fears that I could not reach. Ultimately, I had to argue that I was there to inform them about the Department's policy, not to change their minds.
I have heard this objection about "gaming the system" not only in the homeless shelter environment, where violence and fears of violence are daily realities, but also in corporate and school settings in which violence had never occurred. I addressed this argument in my book:
From "Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals", Book Surge Publishing (2007), page 16 (section II):
The logic of the argument against the ordinance rests upon an assumption that those who are registered sex offenders will use false claims of gender identity disorder to gain access to women's spaces in order to commit sex crimes. This assumption is disproven by experience. There are 13 states and a hundred cities with gender identity civil rights ordinances, beginning with Minneapolis in 1975. There are over 491,000 registered sex offenders in the U.S. There are over 270,000 sexual assaults per year in the U.S. How many cases involving false claims of gender identity disorder in order to commit sexual assault have there been in any year? Zero.
I also note that the idea that statistics suggest there are only 10 transgender people in Gainesville, a city with a population of 115,000, is mistaken. There might only be a few out transgender people, particularly if the area is very conservative (as I understand it is). However, depending upon how one defines transgender, there could be as many as 1,000 transgender people in a city of that size. The number of post-operative transsexuals, however, might be closer to 10.
This objection deserves little credence. I have been tossing around the idea of doing a study on the issue, and have written a research design. Unfortunately, my time has been taken up by other things, and I don't think I'm in a position to do all the work by myself, but this is pretty important. If anyone is interested in working with me on such a study, please get in touch. You don't have to be an academic to help.
Paradoxically, I think this well-written article is of immense value to proponents of gender identity law and policy, and should be scrutinized with care. It is an excellent categorization of some of the strongest arguments marshalled against gender identity laws and policies. While proponents feel strongly that such arguments are incorrect, their ability to counteract such arguments in the court of public opinion has been limited, as demonstrated by the removal of gender identity from the federal ENDA bill this past year.
The reason that it has been so hard to counteract these arguments is because they are based on prejudices. Social research, such as that by Gordon Allport, shows that prejudices do not change based on logical arguments, because they are emotional beliefs not susceptible to change by means of reason. Rather, prejudice is inversely related to intergroup contact, that is, the more people are in contact with the hated group, the less prejudice exists within those people. The mechanism is assumed to be that people will see with their own eyes and through their own experience that the negative judgments are not as generally true as they had been led to believe. Other researchers have found that reducing prejudice in the classroom setting cannot be effected by arguing logically with expressions of prejudice, but is most effectively done by supressing such expressions, in addition to providing education on the issues. This is why civil rights laws are important in themselves as a means of reducing prejudice, even at the same time that education must be provided in order to pass the law. Prejudice feeds on itself, and repetitions of prejudicial actions breed more prejudice, which is not susceptible to logical argument. Reading the arguments of the law's opponents, one sees that the arguments themselves are based on a worldview in which these arguments make plenty of sense, if one has no experience whatsoever of transgender people or gender identity law on which to base one's judgment. Let us examine the community organization's objection to the Gainesville ordinance.
The community organization is Citizens for Good Public Policy. The organization's website is http://citizensforgoodpublicpolicy.org/. The organization's main argument is based on the premise that gender identity is psychological in nature, rather than tied to biological sex. Therefore, it is not susceptible of objective proof, and the law allows anyone, including sexual predators, to gain access to private women's spaces if they claim that they have an "inner sense" of being female. The website further argues that, based on statistics, there are likely less than 10 transgender people in Gainesville, but there are 263 registered sex offenders, thereby placing women and children at risk. I enjoy good statistical research, as it can be more persuasive than anecdotal evidence. In fact, I teach research methods. However, there are three categories of statistical flaws that most commonly show up in erroneous research: flawed research question or hypothesis, errors in data collection, and improper assumptions about the connection between the evidence and the ultimate conclusion. This shows signs of all three.
"The ordinance defines gender identity as “an inner sense of being a specific gender...with or without regard to the individual’s sex at birth.” In practice this means a male can follow a female of any age into a female restroom and/or wait inside for her to enter and be legally protected in doing so. If a police officer were called to have the male removed from the restroom, the innocent female would be advised that the male has just as much legal right to be in the restroom as she. This troubling and potentially dangerous practice will also negatively affect businesses, who stand to lose patrons and/or find themselves in the middle of legal disputes between offended parties."
The article quotes an official of the group, who expresses concerns that the ordinance does not require any form of registration or official proof of being transgender, other than simply saying so, which can lead to people taking advantage of the ordinance.
This is a novel twist on an old argument. Variations of this argument have been used in Montgomery County, Md. and other places.) The usual argument is that transgender people themselves are sexual predators seeking to gain access to women's spaces. The twist here is that there is no claim that transgender people are sexual predators, but there are those who will take advantage of the law to prey on women and girls. Thus, the argument is not based on any inherently negative quality of transgender people themselves, but upon the possibility that others with nefarious intent will game the system.
In another article, the following example was given by the Thomas More Law Center, a non-profit law firm working with the Gainesville group: "For example, Tampa Police arrested Robert Johnson in February 2008 for hanging out in the women’s bathroom at ‘Lifestyle Fitness’ and watching women in an undressed state. The ‘gender identity’ category, which is unique to the City of Gainesville, would provide legal protection to a similar offender in Gainesville." The Thomas More Law Center is mistaken in its assertion that the gender identity category is unique to Gainesville, as Key West, Monroe County, West Palm Beach and Largo have gender identity civil rights laws. More significantly, notably absent from the example given is any false claim of gender identity. The accused, a teenager, claimed that he had not realized that he had entered the women's room, and, afraid to be seen, had hidden until he worked up the courage to emerge, when he was spotted. Thus, it is not necessary to invent a new gender identity in order to work up a defense for a male in a female dressing room. In fact, a false defense of non-traditional gender identity can be easily disproven because those who have a non-traditional gender identity typically have worked with health professionals and others who can document a prior expression of non-traditional gender identity. Thus, if someone were acting as Mr. Johnson did, and then claimed to police that he had a female gender identity, it would be easy for that person to give evidence of a prior expression of female gender identity.
I saw this "gaming the system" argument when I trained 300 homeless shelter staff for the New York City Department of Homeless Services. In each training session of about 20 people, there were one or two staff members who loudly proclaimed that they were not prejudiced, but that they had long experience with the homeless, and some guys would do anything to get with the women. I patiently explained that there were several documented examples of transgender people being abused in the system, and no examples of women being abused by transgender people (or those falsely claiming to be). They had no information to the contrary, but refused to budge. After a while, I sensed that their arguments had nothing to do with logic, and were related to stereotypes and fears that I could not reach. Ultimately, I had to argue that I was there to inform them about the Department's policy, not to change their minds.
I have heard this objection about "gaming the system" not only in the homeless shelter environment, where violence and fears of violence are daily realities, but also in corporate and school settings in which violence had never occurred. I addressed this argument in my book:
From "Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals", Book Surge Publishing (2007), page 16 (section II):
"Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: what if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.
My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law.
Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not. "
The logic of the argument against the ordinance rests upon an assumption that those who are registered sex offenders will use false claims of gender identity disorder to gain access to women's spaces in order to commit sex crimes. This assumption is disproven by experience. There are 13 states and a hundred cities with gender identity civil rights ordinances, beginning with Minneapolis in 1975. There are over 491,000 registered sex offenders in the U.S. There are over 270,000 sexual assaults per year in the U.S. How many cases involving false claims of gender identity disorder in order to commit sexual assault have there been in any year? Zero.
I also note that the idea that statistics suggest there are only 10 transgender people in Gainesville, a city with a population of 115,000, is mistaken. There might only be a few out transgender people, particularly if the area is very conservative (as I understand it is). However, depending upon how one defines transgender, there could be as many as 1,000 transgender people in a city of that size. The number of post-operative transsexuals, however, might be closer to 10.
This objection deserves little credence. I have been tossing around the idea of doing a study on the issue, and have written a research design. Unfortunately, my time has been taken up by other things, and I don't think I'm in a position to do all the work by myself, but this is pretty important. If anyone is interested in working with me on such a study, please get in touch. You don't have to be an academic to help.
Wednesday, February 13, 2008
Broward County, Florida, passes gender identity ordinance
Broward County, Florida commissioners passed an ordinance protecting gender identity and expression.
From the Miami Herald
Posted on Wed, Feb. 13, 2008
Transgender residents protected in Broward
By BREANNE GILPATRICK
Transgender people and pregnant women are now protected groups in Broward County after the County Commission voted to make it illegal to deny housing or jobs to those two groups.
With Tuesday's vote, Broward joins a growing number of local governments across the nation to include ''gender identity and expression'' in their non-discrimination laws. And the two new criteria will join 11 other categories in the county's Human Rights Act, such as gender, race, color, marital status and sexual orientation.
Right now, local governments in more than 25 states offer some protections for transgender residents. In South Florida the list includes: Palm Beach County, Monroe County, Miami, Miami Beach and West Palm Beach.
And Tuesday, one-by-one, more than 20 speakers took the podium and praised commissioners for adding Broward to the list. And many of them arrived before the county to share their own tales of discrimination, like LeAnna Bradley, who talked about what it was like to have paramedics refer to her as ''it'' while riding to the hospital. Or Jacqui Charvet, who lost her job after telling her boss she was going to start the medical process to become a woman. Or Nikki Hatch, who described receiving stares, rude comments and even, at one point, a mail bomb.
Click here for more
(h/t transacademics.org
From the Miami Herald
Posted on Wed, Feb. 13, 2008
Transgender residents protected in Broward
By BREANNE GILPATRICK
Transgender people and pregnant women are now protected groups in Broward County after the County Commission voted to make it illegal to deny housing or jobs to those two groups.
With Tuesday's vote, Broward joins a growing number of local governments across the nation to include ''gender identity and expression'' in their non-discrimination laws. And the two new criteria will join 11 other categories in the county's Human Rights Act, such as gender, race, color, marital status and sexual orientation.
Right now, local governments in more than 25 states offer some protections for transgender residents. In South Florida the list includes: Palm Beach County, Monroe County, Miami, Miami Beach and West Palm Beach.
And Tuesday, one-by-one, more than 20 speakers took the podium and praised commissioners for adding Broward to the list. And many of them arrived before the county to share their own tales of discrimination, like LeAnna Bradley, who talked about what it was like to have paramedics refer to her as ''it'' while riding to the hospital. Or Jacqui Charvet, who lost her job after telling her boss she was going to start the medical process to become a woman. Or Nikki Hatch, who described receiving stares, rude comments and even, at one point, a mail bomb.
Click here for more
(h/t transacademics.org
Friday, November 16, 2007
Montgomery County, Maryland passes transgender protections
From the Washington Post: The Montgomery County Council unanimously approved broad protections for transgender individuals in housing and employment yesterday, despite vigorous protests from a coalition of conservative groups that said the measure would lead to indecent exposure in public locker rooms and restrooms. The legislation originally contained language similar to the Boston ordinance, but it was removed before the vote was taken. As I discussed previously,
The ordinance must be signed by the county executive before it goes into effect, and she has said that she will sign it.
The ordinance must be signed by the county executive before it goes into effect, and she has said that she will sign it.
Sunday, November 4, 2007
Opposition to trans-inclusive legislation in Montgomery County, Maryland
There is a brouhaha brewing in Montgomery County, Maryland, over legislation introduced to protect the civil rights of transgender citizens. Montgomery County is situated just north of Washington, D.C. and Southwest of Baltimore. According to Wikipedia, it is one of the most affluent counties in the nation. Most of the county's residents live in unincorporated locales, the most populous of which is Silver Spring. It is a part of the Baltimore-Washington Metropolitan Area.
A group of conservative citizens, upset about the legislation, scheduled a protest at a swimming pool to highlight its concern that the legislation is, in reality, a plan to force co-ed locker rooms on an unwilling populace, which would endanger women.
The legislator who introduced the measure issued a press release discussing the allegations, using a quote from my book to illustrate the point that the concerns about the danger to women is overblown. The press release follows.
Councilmember Duchy Trachtenberg: Separating Fact from Fiction About Montgomery’s Transgender Legislation Rights Protection Measure Scheduled for Nov. 13 Council Vote
--------------------------------------------------------------------------------
Release ID: 07-106
Release Date: 11/2/2007
Contact: William Klein 240-777-7830
From: Council Office
Councilmember Duchy Trachtenberg: Separating Fact from Fiction About Montgomery’s
Transgender Legislation Rights Protection Measure Scheduled for Nov. 13 Council Vote
ROCKVILLE, Md., November 2, 2007—Despite the efforts of a small group of ideologically motivated individuals to raise fears and continue discriminatory policies, support for the Montgomery County Council’s proposal to protect the rights of transgender individuals remains strong, Councilmember Duchy Trachtenberg, chief sponsor of the legislation, said today.
The legislation, which has been discussed in a worksession of the Council’s Health and Human Services Committee and at a legislative hearing before the full Council, is scheduled for a vote for adoption by the Council on Tuesday, Nov. 13.
The legislation proposed for Montgomery would amend the County Code and sections of County law to “prohibit discrimination in housing, employment, public accommodations, cable television service and taxicab service on the basis of gender identity.”
Thirteen states have laws prohibiting discrimination based on “gender identity or expression” in employment, another half-dozen—including Maryland—have legislation pending and almost 100 cities have ordinances on the subject. These laws cover about 37 percent of the U.S. population.
The issue of access to public bathrooms has now been resolved by the federal courts. In the landmark case Cruzan v. Davis, a ruling was made in June 2002 by a federal appeals court in Minnesota that an employer is within its rights to instruct a transgendered employee to use the restroom matching their new presentation. The ruling states that if another employee complains, the company may offer the complaining employee an accommodation (such as the use of a different restroom for the complaining employee.)
“Montgomery County has historically taken the lead in protecting its most vulnerable citizens: Minorities, gays, the poor, women, children and senior citizens,” said Councilmember Trachtenberg (D-At-Large). “This is nothing more or less than a continuation of that tradition—an expression of our best and most noble principles.”
Jillian Todd Weiss, Associate Professor of Law and Public Policy at Ramapo College of New Jersey and the author of the book Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals, has written extensively on the subject.
“Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: What if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females?” said Professor Weiss. “This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.
“My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law. Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not.”
A group of conservative citizens, upset about the legislation, scheduled a protest at a swimming pool to highlight its concern that the legislation is, in reality, a plan to force co-ed locker rooms on an unwilling populace, which would endanger women.
The legislator who introduced the measure issued a press release discussing the allegations, using a quote from my book to illustrate the point that the concerns about the danger to women is overblown. The press release follows.
Councilmember Duchy Trachtenberg: Separating Fact from Fiction About Montgomery’s Transgender Legislation Rights Protection Measure Scheduled for Nov. 13 Council Vote
--------------------------------------------------------------------------------
Release ID: 07-106
Release Date: 11/2/2007
Contact: William Klein 240-777-7830
From: Council Office
Councilmember Duchy Trachtenberg: Separating Fact from Fiction About Montgomery’s
Transgender Legislation Rights Protection Measure Scheduled for Nov. 13 Council Vote
ROCKVILLE, Md., November 2, 2007—Despite the efforts of a small group of ideologically motivated individuals to raise fears and continue discriminatory policies, support for the Montgomery County Council’s proposal to protect the rights of transgender individuals remains strong, Councilmember Duchy Trachtenberg, chief sponsor of the legislation, said today.
The legislation, which has been discussed in a worksession of the Council’s Health and Human Services Committee and at a legislative hearing before the full Council, is scheduled for a vote for adoption by the Council on Tuesday, Nov. 13.
The legislation proposed for Montgomery would amend the County Code and sections of County law to “prohibit discrimination in housing, employment, public accommodations, cable television service and taxicab service on the basis of gender identity.”
Thirteen states have laws prohibiting discrimination based on “gender identity or expression” in employment, another half-dozen—including Maryland—have legislation pending and almost 100 cities have ordinances on the subject. These laws cover about 37 percent of the U.S. population.
The issue of access to public bathrooms has now been resolved by the federal courts. In the landmark case Cruzan v. Davis, a ruling was made in June 2002 by a federal appeals court in Minnesota that an employer is within its rights to instruct a transgendered employee to use the restroom matching their new presentation. The ruling states that if another employee complains, the company may offer the complaining employee an accommodation (such as the use of a different restroom for the complaining employee.)
“Montgomery County has historically taken the lead in protecting its most vulnerable citizens: Minorities, gays, the poor, women, children and senior citizens,” said Councilmember Trachtenberg (D-At-Large). “This is nothing more or less than a continuation of that tradition—an expression of our best and most noble principles.”
Jillian Todd Weiss, Associate Professor of Law and Public Policy at Ramapo College of New Jersey and the author of the book Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals, has written extensively on the subject.
“Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: What if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females?” said Professor Weiss. “This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.
“My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law. Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not.”
Sunday, May 13, 2007
West Palm Beach, FL passes gender identity ordinance
The City Commission of West Palm Beach, Florida, has adopted an ordinance prohibiting discrimination against transgender people. Looking at this development against the backdrop of Florida as a whole shows that Florida is a surprising mix of progressive and retrograde.
As reported in Gay News From 365Gay.com, the Commission voted unanimously to adopt an ordinance prohibiting discrimination in employment, housing and public accommodations based on gender identity or expression. The law, which covers all employers in the city having 15 or more employees, goes into effect next week.
According to Dan Moffett of the Palm Beach post, the ordinance includes the following definition of gender identity or expression:
"Gender identity or expression means a person's various individual attributes, actual or perceived, as they are understood to be masculine and/or feminine, or a person's self-identity, self-image, appearance or expression as a man or woman, whether or not different from those traditionally associated with the person's sex at birth."
This definition is close to those I'm familiar with, but has some interesting differences, particularly the reference to individual attributes. I'll have to do a post on all these definitions at some point to discuss what these differences might mean.
According to Steve Rothaus at MiamiHerald.com, the ordinance, considered at the request of the Palm Beach County Human Rights Council, comes in reaction to the firing of Largo City Manager Steve Stanton in Pinellas County.
"West Palm Beach has sent a very clear message to employers, landlords, and business owners that people who do not fit society's stereotypes of masculinity and femininity are entitled to the same protections as all other minorities who have been victims of discrimination," said Rand Hoch, President and Founder of the Palm Beach County Human Rights Council.
There are only a few cities in Florida with gender identity protection ordinances:
City of Key West
City of Miami Beach
Monroe County
Gulfport should be included on that list, according to Out in America.
However, Florida's Commission on Human Relations has ruled that given the position the company has taken in the past on these issues.)
Office Depot Inc. Delray Beach FL
Tech Data Corp. Clearwater FL
Ryder System Inc. Miami FL
AutoNation Inc. Fort Lauderdale FL
FPL Group Inc. Juno Beach FL
Darden Restaurants Orlando FL
Jabil Circuit St. Petersburg FL
Winn-Dixie Stores Inc. Jacksonville FL
Lennar Corp Miami FL
Publix Super Markets Lakeland FL
CSX Corp. Jacksonville FL
As reported in Gay News From 365Gay.com, the Commission voted unanimously to adopt an ordinance prohibiting discrimination in employment, housing and public accommodations based on gender identity or expression. The law, which covers all employers in the city having 15 or more employees, goes into effect next week.
According to Dan Moffett of the Palm Beach post, the ordinance includes the following definition of gender identity or expression:
"Gender identity or expression means a person's various individual attributes, actual or perceived, as they are understood to be masculine and/or feminine, or a person's self-identity, self-image, appearance or expression as a man or woman, whether or not different from those traditionally associated with the person's sex at birth."
This definition is close to those I'm familiar with, but has some interesting differences, particularly the reference to individual attributes. I'll have to do a post on all these definitions at some point to discuss what these differences might mean.
According to Steve Rothaus at MiamiHerald.com, the ordinance, considered at the request of the Palm Beach County Human Rights Council, comes in reaction to the firing of Largo City Manager Steve Stanton in Pinellas County.
"West Palm Beach has sent a very clear message to employers, landlords, and business owners that people who do not fit society's stereotypes of masculinity and femininity are entitled to the same protections as all other minorities who have been victims of discrimination," said Rand Hoch, President and Founder of the Palm Beach County Human Rights Council.
There are only a few cities in Florida with gender identity protection ordinances:
City of Key West
City of Miami Beach
Monroe County
Gulfport should be included on that list, according to Out in America.
However, Florida's Commission on Human Relations has ruled that given the position the company has taken in the past on these issues.)
Office Depot Inc. Delray Beach FL
Tech Data Corp. Clearwater FL
Ryder System Inc. Miami FL
AutoNation Inc. Fort Lauderdale FL
FPL Group Inc. Juno Beach FL
Darden Restaurants Orlando FL
Jabil Circuit St. Petersburg FL
Winn-Dixie Stores Inc. Jacksonville FL
Lennar Corp Miami FL
Publix Super Markets Lakeland FL
CSX Corp. Jacksonville FL
Sunday, March 25, 2007
Stanton v. Largo: Text, Subtext and Pretext
My previous posts on the Stanton case analyzed in detail the law governing the question of whether transsexuality is a protected category, concluding that it is. (I'd like to note Joanna Grossman's interesting article on these issues, though I think her conclusions a bit more pessimistic than necessary.)
This might seem to some like the end of the inquiry in regard to the question of whether a lawsuit by Stanton would succeed. Duh - the Largo City Commission acted after he revealed his transsexuality. Post hoc ergo propter hoc.
But it's not enough to suggest a discriminatory motive in an employment discrimination lawsuit. One has to prove, to decisionmakers who know little or nothing about transsexuality, by a preponderance of the evidence, that the employer actually acted based on this motive. Just like the coin toss at the carnival, hitting the target on this one is harder than it seems. There are no employers dumb enough to admit to firing someone based on a category that is protected. If they feel the need to fire such an employee, they look carefully to find reasons not based on the protected category, like poor work performance. When and if the matter goes to a tribunal, they trot out all these facts that could have supported termination. If the decision-maker (jury, judge or human rights commission) isn't convinced that the employer acted from the discriminatory motive, the employee loses the case.
Text and Subtext
The apparent simplicity of the conclusion that the City Commission acted based on discriminatory motive stems from the fact that we do not read the events in a vacuum. There's the text of what happened - Steve Stanton's transgender identity is revealed, citizens of Largo complain, the City Commission holds a hearing, various complaints are aired, and the City Commission votes to terminate. But we read into these texts a "subtext" - an underlying implicit meaning. If we're knowledgeable about transsexuality and sympathetic to the cause, we understand that Stanton acted in accordance with best practices in his communications plan, and his excursions as "Susan" were nothing more than nascent transsexual development. If, on the other hand, we view transsexuals in the same category as pedophiles and kleptomaniacs, we view his communications plan as deceptive and his excusions as "Susan" as a compulsive dishonesty comparable to that of pedophiles and kleptomaniacs.
Some have noted that the City Commission seemed to have their minds made up already, and that the information they received on transsexuality at the second hearing seemed to make no difference. My blogging friends have all noted this.
And such observations seem sound enough if you believe, as I do, that the subtext here was to get rid of the difficult issue of transsexuality, upon which much of the opposition testimony focused. After all, the City Commission did not deliberate at all after the three hours of testimony. Instead, without so much as a five minute break, three Commissioners read what seemed to be prepared statements protesting that transsexuality was NOT the reason, proffering neutral reasons for the firing, and they again took a vote, in which each Commissioner voted exactly the same way they did before. The natural conclusion, given my subtext, from such procedure is that the neutral reasons were a pretext for the real reason, i.e., Stanton's gender identity.
Subtext and Pretext
A "pretext" is a reason concocted after the fact to conceal the real reason. For example, if a young child is caught in the act of climbing up the bookshelf where the cookie jar was hidden, in an attempt to take the forbidden cookies, and is asked "why did you climb up there when I told you not to?", the budding young politician may say "I was trying to get my book." This is a pretext, and the parent, knowing the subtext of the safeguarded cookie jar, will smell a lie. But if the parent is not home, and the young ruffian is being watched by too-easily-taken-in Aunt Matilda, then the text is not detected as pretext because the subtext is missing. These pretext cases happen all the time in the employment lawyer's world. Every plaintiff in a protected category is smelling a rat and shouting "PRETEXT!" from the rafters, and every employer is giving an innocent "who-me?" smile and twirling his or her fingers next to their temples, implying that the disgruntled employee is a feverish conspiracy theorist on crack. Who you believe is based on your subtext.This is why a legal mind none other than Workplace Prof Blog says the following:
In fact, although the city's legitimate non-discriminatory reason for firing Stanton appears to be that he bullied other employees, such concerns only came to the fore after Stanton announced that he planned to go under gender reassignment surgery to become a woman in Summer 2008. Also, prior to his announcement, Stanton received good performance reviews and a large raise in pay. Seems like a pretty good pretext case based on just an initial analysis of the surrounding facts. Workplace Prof Blog
(I must beg to differ with my learned friend. I don't think that the city's reason was bullying other employees. After all, I listened to all six hours of testimony, and did not hear the Commissioners mention that at the end, though some employees did. Instead, they raised the issues of dishonesty, untrustworthiness and disruptiveness.) [Update: color me wrong. Check out this article where one of the Commissioners says it was bullying.
I do wholeheartedly agree with the sage-like Workplace Prof Blog about the rest. But note the wiggle words that every lawyer, including me, uses to qualify their opinion, as they rightly should: "seems like a pretty good pretext case based on just an initial analysis..." He's not saying its a sure winner - just seems pretty good when first looked at. But when it comes to litigation, the material gets chewed over and spun a dozen ways by the time its all over and done. There is no knowing what subtext the decision-maker, whether jury, judge or human rights commission, will have, and each lawyer tries desperately to communicate that subtext in everything they say and do, hoping the decision-maker will pick it up and run with it. Assuming that the decision-maker has the same subtext you do is something no lawyer can afford to do. But realizing that you have a subtext, number one, and pulling it out of your mind like Dumbledore's pensieve so you see the case from the decision-maker's point of view, number two -- well, that takes three years of law school and a few years of practicing law before you really understand the meat-grinder-like nature of litigation.
My point is that it is not enough to show the presence of a discriminatory motive. If the employer, in this case the City of Largo, could point to the presence of a proper motive to terminate him -- such as dishonesty, untrustworthiness, disruptiveness, poor managerial judgment, or improper treatment of employees -- these would constitute a defense to the charge of discrimination, despite the fact that their decision waited until his revelation about transsexuality came out. They don’t have to prove that they relied on the discriminatory motive, just that it it exists. The employee has to prove that they didn’t rely on the legitimate motive. Without X-raying the heads of the City Commission of Largo (which might prove a very interesting experiment), it is difficult to say what was in their minds, if anything.
The City Commissioners who voted against said that his disclosure came too late and was done improperly, causing disruption and loss of confidence. Of course, those of us sympathetic to Stanton will say that his careful plan was disrupted by the mean old St. Pete Times, as Mr. Stanton did in his speech to the City Commission. Those unsympathetic will say, as some of the speakers did that evening, that Stanton rigged it to happen this way, so he could say that the problem was the St. Pete Times, and not his deceptiveness, and dintcha notice how he says he doesn't blame the St. Pete Times (conspiracy!!!!).
Back to the subtext to prove the pretext: People who are ready to believe that the City Commission of Largo are a bunch of hick bigots will think it a pretext, and people who are ready to believe that Steve Stanton is happy to be the center of a media circus will dismiss his protestations that he did the best he could in trying to bring this out discreetly. How to resolve this logjam?
Legal Procedure
The key here is the legal procedure. The courts have long understood that figuring out what constitutes discrimination can be confusing. When the Civil Rights Act of 1964 was passed, the law for hundreds of years in America had always been “employment at will,” meaning the employer can dismiss an employee for any reason, or no reason at all. “I don’t like your face” was sufficient, and if the issue were the color of that face, so be it. The Civil Rights Act constituted a legislative exception to that rule. It said that certain reasons were illegal, specifically race, color, sex, religion and national origin. Thus, the fact that employment is called "at will" does not mean that discriminatory reasons for termination are permissible. A number of bloggers have noted that Stanton's contract calls for "at will" employment, implying that he therefore cannot complain about discrimination. But this misunderstands the Civil Rights Act of 1964 and similar statutes; such statutes supercede the "at-will" concept.
Employers quickly figured out that this was serious business, and stopped running those “no Irish need apply” ads. However, if you’re a manager, even one who doesn’t want to discriminate, you don’t necessarily want the pain of dealing with new cultural demographics in your workforce that are disruptive to the business because of the prejudices of your existing workforce. So you document your human resources decisions with reasons that are facially legal, even if you’re Boss Hogg on the inside. So now courts are faced with he-said-she-said: any poorly-performing employee can point to one of these categories, and any discriminatory manager can come up with a rationalization to fire pretty much anyone. It is a case of the irresistible force meeting the immovable object.
It’s also like the joke about the famous rabbi to whom all the villagers brought their disputes. The wife complained that her husband never listened to her ideas because he despised her, following with a dozen examples. The rabbi listened to her story, wisely stroked his beard and said “You’re right, that’s terrible!” The husband, on the other hand, said he loved his wife more than anything in the world but her ideas made no sense, and gave two dozen examples. The rabbi stroked his beard again and said “You’re right, that’s ridiculous!” The rabbi’s wife then came out and said to her husband “How can you say they’re both right? They came to you for advice!” The rabbi again stroked his beard and said to his wife: “You’re also right!”
The Supreme Court first addressed this issue in 1973, nine years after the Civil Rights Act was passed. Mr. Green was a Black citizen of St. Louis who worked for aerospace manufacturer McDonnell Douglas as a mechanic and laboratory technician. He was laid off in the course of a general reduction in workforce. A long-time activist in the civil rights movement, Green protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner's plant for the purpose of blocking access to it at the time of the morning shift change. He may also have been involved in a "lock-in," wherein a chain and padlock were placed on the front door of a building to prevent certain of petitioner's employees from leaving. Three weeks later, the company publicly advertised for qualified mechanics, and Green applied. He was turned down based on his participation in the protests. He filed a formal complaint with the Equal Employment Opportunity Commission.
A complicated procedural history ensued, but the bottom line was that the Eighth Circuit Court of Appeals said that Green had established a “prima facie” case of racial discrimination. “Prima facie” is Latin for “first impression” and is used in law to indicate that the plaintiff has come up with enough smoke to show there’s probably a fire. In other words, he had shown enough facts to establish a probable discriminatory motive. But the appeals court also said that McDonnell Douglas had showed that it had a good reason to fire him, being Green’s illegal activities in pursuit of the protest, which might indicate a lack of a responsible attitude toward performing work for that employer. Green could not deny his involvement in the illegal activities. So what to do when the irresistible force meets the immovable object?
The Supreme Court said that Green did not have to disprove the employer’s reason. Rather, he could show that McDonnell’s stated reason for rejecting his application was, in fact, a pretext. The Court gave some examples of how a pretext might be shown. “Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.” Joanna Grossman, in her excellent Findlaw.com article on the Desert Palace decision, suggests the following example. “For instance, she might show the jury the interviewer's notes on her, and point out a little doodle of her in a short skirt under the heading ‘personality.’”
Thus, an employee suing for discrimination can win if he or she can show either 1) the employer’s articulated reason is untrue, or 2) the employer’s articulated reason is true, but a pretext designed to cover up a discriminatory motive. If the jury believes that the employee has proven either one of these situations by a preponderance of the evidence, and the employee has also shown that the employer in fact relied on a discriminatory motive, then the plaintiff wins.
This is a good start, but it doesn’t address what to do if, as happens in many cases, the decision is based on mixed motives – one legal and one illegal. For example, an employee is fired, and is told by the manager “Not only do I hate Muslims in general, but particularly poorly performing ones like you.” Does the employee have a case if she has genuinely poor performance? Does Stanton have a case if the City of Largo can show that he acted in a way that it could reasonably interpret as dishonest, disruptive, untrustworthy, poor managerial judgment or improper treatment of employees?
Congress dealt with this problem in its amendments to Title VII in the Civil Rights Act of 1991. It is illegal for a prohibited characteristic to be "a motivating factor for any employment practice, even though other factors also motivated the practice." However, if an employer can show that it would have taken the same action even without the discriminatory motive, the plaintiff cannot collect damages. However, the plaintiff can still hold the defendant liable and obtain injunctive relief and attorneys' fees, both potentially valuable remedies.
Thus, the City of Largo can defend against a claim by Stanton by showing legal reasons for his firing – dishonesty, untrustworthiness, disruptiveness, poor managerial judgment, or improper treatment of employees. It’s then up to Stanton either to disprove the existence of these allegations, or to show that they were, in fact, a pretext for discrimination.
Evaluating the City’s Defenses
The first three defenses are different from the last two. The first three directly relate to Stanton’s transsexuality. The claim there is that he didn’t come out soon enough, and that even though the newspaper revelations don’t seem to be his fault, his communications plan was faulty, leading to disruption in the city, and his behavior in going out as “Susan” before telling them was an dishonest and untrustworthy action. Of course, his defense to that, as set forth in the testimony arranged by his attorney at the second hearing, is to disprove these allegations. His attorney brought out testimony, though limited in the context of a short commission-style hearing, that his communications plan was, in fact, a good one as compared to best practices, and his actions in going out as “Susan” were simply part of the normal developmental course in cases of transsexuality. These issues are very new for the courts, and it is hard to say how the Florida Commission on Human Relations or a court would understand these issues. I’m not sure I understand them myself. But I think Stanton’s attorney did a great job of presenting these issues at the second hearing, and I think she has a lot more arrows in that quiver.
The last two potential defenses of the City, however, are more traditional, in that they bring up situations that existed before Stanton came out. I don’t think the issue of poor managerial judgment, independent of the transsexuality issue, was brought up at all during the hearings. In fact, it seems that everyone agreed that his managerial skills were top-notch, as evidenced by improvements in the town facilities and services. No one got up and said “this town is a dump and I can’t get my garbage collected.”
There were allegations, however, of improper treatment of employees, resulting in unfairness and poor morale. This consisted of two types of things: 1) telling employees that “he owned their mouth 24 hours a day,” and 2) firing employees for reasons perceived to be unduly harsh. The first one is a little unclear, but it seems to relate to a fairly common issue in governmental employment- what are the First Amendment rights of employees? In private enterprise, if an employee says rude things about his or her employer off the premises, the boss is entitled to fire them. However, in government service, an employee who speaks as a citizen, and on a matter of public concern is entitled to protection under the First Amendment to the US Constitution, as well as state constitutions. This is subject to all sorts of exceptions, and the law on this issue is as clear as mud. It’s an interesting side-issue, but I’m not going to review it here. Here’s a good article on the issue.
The second allegation, that of firing employees for reasons perceived to be unduly harsh, presents a problem for the City of Largo. According to newspaper accounts, this conduct had been previously brought to the attention of the City Commission, but no action was taken against him, and in fact, he was subsequently given good performance reviews and raises. If that is true, their assertion of the conduct is going to fall very flat. In fact, it may even result in the City Commission appearing to be deceptive. I would imagine any attorney advising them is going to tell them to forget about using improper treatment of employees as a defense. But see this article about one of the Commissioners defending her decision on this basis. (Ouch - her admissions are going to hurt Largo in any suit.)
"Gentry said she had concerns about his dealings with employees before. She mentioned them to him, but she didn't push him to change. She didn't want to micromanage him. But once Stanton announced his intentions - and requested the City Commission grant him the time to convince city employees he could do his job as a woman - Gentry said she felt it was time to scrutinize personnel issues more closely."
Of course, if the other City Commissioners were unaware of these issues until after his relevation, then such job performance issues could be very effective against Stanton. Stanton would, of course, have the opportunity to show that the reliance on these allegations is a pretext, but how would he show it? Have other Largo city managers done similar things and gotten a pass? Dunno, and I wouldn’t want to have to try to find out.
In conclusion, it’s my sense that, in order to win an employment discrimination case, Mr. Stanton would have to convince a decision-maker that he did not, in fact, act deceptively, disruptively or in an untrustworthy manner. I think he could do it.
Of course, whether he will be up to the emotional, financial and physical strain of litigation during his gender transition is another question. That's a difficult choice. It's at this point that most of your support structure departs for points unknown. Families, friends, homes, careers, money - all go right out the window - whoosh. My ex took my son and moved 150 miles away, I couldn't get my family and friends to return phone calls, my legal career ended, and I gave whatever money I had to my ex in exchange for my guilt at being who I am. That I'm still alive is a miracle. So I wish him luck and godspeed whatever his decision. But I'm sure he understands that its a tough road. We all do, when we open that door and step through. But there's really no choice.
(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.)
This might seem to some like the end of the inquiry in regard to the question of whether a lawsuit by Stanton would succeed. Duh - the Largo City Commission acted after he revealed his transsexuality. Post hoc ergo propter hoc.
But it's not enough to suggest a discriminatory motive in an employment discrimination lawsuit. One has to prove, to decisionmakers who know little or nothing about transsexuality, by a preponderance of the evidence, that the employer actually acted based on this motive. Just like the coin toss at the carnival, hitting the target on this one is harder than it seems. There are no employers dumb enough to admit to firing someone based on a category that is protected. If they feel the need to fire such an employee, they look carefully to find reasons not based on the protected category, like poor work performance. When and if the matter goes to a tribunal, they trot out all these facts that could have supported termination. If the decision-maker (jury, judge or human rights commission) isn't convinced that the employer acted from the discriminatory motive, the employee loses the case.
Text and Subtext
The apparent simplicity of the conclusion that the City Commission acted based on discriminatory motive stems from the fact that we do not read the events in a vacuum. There's the text of what happened - Steve Stanton's transgender identity is revealed, citizens of Largo complain, the City Commission holds a hearing, various complaints are aired, and the City Commission votes to terminate. But we read into these texts a "subtext" - an underlying implicit meaning. If we're knowledgeable about transsexuality and sympathetic to the cause, we understand that Stanton acted in accordance with best practices in his communications plan, and his excursions as "Susan" were nothing more than nascent transsexual development. If, on the other hand, we view transsexuals in the same category as pedophiles and kleptomaniacs, we view his communications plan as deceptive and his excusions as "Susan" as a compulsive dishonesty comparable to that of pedophiles and kleptomaniacs.
Some have noted that the City Commission seemed to have their minds made up already, and that the information they received on transsexuality at the second hearing seemed to make no difference. My blogging friends have all noted this.
[We] watched the Largo City Commission's sham proceedings as they pretended to give Steve Stanton his day in court... Life, Law and Gender
it’s obvious the commissioners went in with their minds made up ahead of time, & all of the people who waited hours to testify were wasting their time & their breath. (En)gender
And etc:http://litbrit.blogspot.com/2007/03/largo-fires-steve-stanton.html http://pushingrope.blogspot.com/2007/03/largo-fires-steve-stanton.html http://www.blogsheroes.com/feed/largofiresstevestanton http://www.newzblogz.com/blogs/jonstewart/224528.html?crowd-came-to-praise-stanton
And such observations seem sound enough if you believe, as I do, that the subtext here was to get rid of the difficult issue of transsexuality, upon which much of the opposition testimony focused. After all, the City Commission did not deliberate at all after the three hours of testimony. Instead, without so much as a five minute break, three Commissioners read what seemed to be prepared statements protesting that transsexuality was NOT the reason, proffering neutral reasons for the firing, and they again took a vote, in which each Commissioner voted exactly the same way they did before. The natural conclusion, given my subtext, from such procedure is that the neutral reasons were a pretext for the real reason, i.e., Stanton's gender identity.
Subtext and Pretext
A "pretext" is a reason concocted after the fact to conceal the real reason. For example, if a young child is caught in the act of climbing up the bookshelf where the cookie jar was hidden, in an attempt to take the forbidden cookies, and is asked "why did you climb up there when I told you not to?", the budding young politician may say "I was trying to get my book." This is a pretext, and the parent, knowing the subtext of the safeguarded cookie jar, will smell a lie. But if the parent is not home, and the young ruffian is being watched by too-easily-taken-in Aunt Matilda, then the text is not detected as pretext because the subtext is missing. These pretext cases happen all the time in the employment lawyer's world. Every plaintiff in a protected category is smelling a rat and shouting "PRETEXT!" from the rafters, and every employer is giving an innocent "who-me?" smile and twirling his or her fingers next to their temples, implying that the disgruntled employee is a feverish conspiracy theorist on crack. Who you believe is based on your subtext.This is why a legal mind none other than Workplace Prof Blog says the following:
In fact, although the city's legitimate non-discriminatory reason for firing Stanton appears to be that he bullied other employees, such concerns only came to the fore after Stanton announced that he planned to go under gender reassignment surgery to become a woman in Summer 2008. Also, prior to his announcement, Stanton received good performance reviews and a large raise in pay. Seems like a pretty good pretext case based on just an initial analysis of the surrounding facts. Workplace Prof Blog
(I must beg to differ with my learned friend. I don't think that the city's reason was bullying other employees. After all, I listened to all six hours of testimony, and did not hear the Commissioners mention that at the end, though some employees did. Instead, they raised the issues of dishonesty, untrustworthiness and disruptiveness.) [Update: color me wrong. Check out this article where one of the Commissioners says it was bullying.
I do wholeheartedly agree with the sage-like Workplace Prof Blog about the rest. But note the wiggle words that every lawyer, including me, uses to qualify their opinion, as they rightly should: "seems like a pretty good pretext case based on just an initial analysis..." He's not saying its a sure winner - just seems pretty good when first looked at. But when it comes to litigation, the material gets chewed over and spun a dozen ways by the time its all over and done. There is no knowing what subtext the decision-maker, whether jury, judge or human rights commission, will have, and each lawyer tries desperately to communicate that subtext in everything they say and do, hoping the decision-maker will pick it up and run with it. Assuming that the decision-maker has the same subtext you do is something no lawyer can afford to do. But realizing that you have a subtext, number one, and pulling it out of your mind like Dumbledore's pensieve so you see the case from the decision-maker's point of view, number two -- well, that takes three years of law school and a few years of practicing law before you really understand the meat-grinder-like nature of litigation.
My point is that it is not enough to show the presence of a discriminatory motive. If the employer, in this case the City of Largo, could point to the presence of a proper motive to terminate him -- such as dishonesty, untrustworthiness, disruptiveness, poor managerial judgment, or improper treatment of employees -- these would constitute a defense to the charge of discrimination, despite the fact that their decision waited until his revelation about transsexuality came out. They don’t have to prove that they relied on the discriminatory motive, just that it it exists. The employee has to prove that they didn’t rely on the legitimate motive. Without X-raying the heads of the City Commission of Largo (which might prove a very interesting experiment), it is difficult to say what was in their minds, if anything.
The City Commissioners who voted against said that his disclosure came too late and was done improperly, causing disruption and loss of confidence. Of course, those of us sympathetic to Stanton will say that his careful plan was disrupted by the mean old St. Pete Times, as Mr. Stanton did in his speech to the City Commission. Those unsympathetic will say, as some of the speakers did that evening, that Stanton rigged it to happen this way, so he could say that the problem was the St. Pete Times, and not his deceptiveness, and dintcha notice how he says he doesn't blame the St. Pete Times (conspiracy!!!!).
Back to the subtext to prove the pretext: People who are ready to believe that the City Commission of Largo are a bunch of hick bigots will think it a pretext, and people who are ready to believe that Steve Stanton is happy to be the center of a media circus will dismiss his protestations that he did the best he could in trying to bring this out discreetly. How to resolve this logjam?
Legal Procedure
The key here is the legal procedure. The courts have long understood that figuring out what constitutes discrimination can be confusing. When the Civil Rights Act of 1964 was passed, the law for hundreds of years in America had always been “employment at will,” meaning the employer can dismiss an employee for any reason, or no reason at all. “I don’t like your face” was sufficient, and if the issue were the color of that face, so be it. The Civil Rights Act constituted a legislative exception to that rule. It said that certain reasons were illegal, specifically race, color, sex, religion and national origin. Thus, the fact that employment is called "at will" does not mean that discriminatory reasons for termination are permissible. A number of bloggers have noted that Stanton's contract calls for "at will" employment, implying that he therefore cannot complain about discrimination. But this misunderstands the Civil Rights Act of 1964 and similar statutes; such statutes supercede the "at-will" concept.
Employers quickly figured out that this was serious business, and stopped running those “no Irish need apply” ads. However, if you’re a manager, even one who doesn’t want to discriminate, you don’t necessarily want the pain of dealing with new cultural demographics in your workforce that are disruptive to the business because of the prejudices of your existing workforce. So you document your human resources decisions with reasons that are facially legal, even if you’re Boss Hogg on the inside. So now courts are faced with he-said-she-said: any poorly-performing employee can point to one of these categories, and any discriminatory manager can come up with a rationalization to fire pretty much anyone. It is a case of the irresistible force meeting the immovable object.
It’s also like the joke about the famous rabbi to whom all the villagers brought their disputes. The wife complained that her husband never listened to her ideas because he despised her, following with a dozen examples. The rabbi listened to her story, wisely stroked his beard and said “You’re right, that’s terrible!” The husband, on the other hand, said he loved his wife more than anything in the world but her ideas made no sense, and gave two dozen examples. The rabbi stroked his beard again and said “You’re right, that’s ridiculous!” The rabbi’s wife then came out and said to her husband “How can you say they’re both right? They came to you for advice!” The rabbi again stroked his beard and said to his wife: “You’re also right!”
The Supreme Court first addressed this issue in 1973, nine years after the Civil Rights Act was passed. Mr. Green was a Black citizen of St. Louis who worked for aerospace manufacturer McDonnell Douglas as a mechanic and laboratory technician. He was laid off in the course of a general reduction in workforce. A long-time activist in the civil rights movement, Green protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner's plant for the purpose of blocking access to it at the time of the morning shift change. He may also have been involved in a "lock-in," wherein a chain and padlock were placed on the front door of a building to prevent certain of petitioner's employees from leaving. Three weeks later, the company publicly advertised for qualified mechanics, and Green applied. He was turned down based on his participation in the protests. He filed a formal complaint with the Equal Employment Opportunity Commission.
A complicated procedural history ensued, but the bottom line was that the Eighth Circuit Court of Appeals said that Green had established a “prima facie” case of racial discrimination. “Prima facie” is Latin for “first impression” and is used in law to indicate that the plaintiff has come up with enough smoke to show there’s probably a fire. In other words, he had shown enough facts to establish a probable discriminatory motive. But the appeals court also said that McDonnell Douglas had showed that it had a good reason to fire him, being Green’s illegal activities in pursuit of the protest, which might indicate a lack of a responsible attitude toward performing work for that employer. Green could not deny his involvement in the illegal activities. So what to do when the irresistible force meets the immovable object?
The Supreme Court said that Green did not have to disprove the employer’s reason. Rather, he could show that McDonnell’s stated reason for rejecting his application was, in fact, a pretext. The Court gave some examples of how a pretext might be shown. “Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.” Joanna Grossman, in her excellent Findlaw.com article on the Desert Palace decision, suggests the following example. “For instance, she might show the jury the interviewer's notes on her, and point out a little doodle of her in a short skirt under the heading ‘personality.’”
Thus, an employee suing for discrimination can win if he or she can show either 1) the employer’s articulated reason is untrue, or 2) the employer’s articulated reason is true, but a pretext designed to cover up a discriminatory motive. If the jury believes that the employee has proven either one of these situations by a preponderance of the evidence, and the employee has also shown that the employer in fact relied on a discriminatory motive, then the plaintiff wins.
This is a good start, but it doesn’t address what to do if, as happens in many cases, the decision is based on mixed motives – one legal and one illegal. For example, an employee is fired, and is told by the manager “Not only do I hate Muslims in general, but particularly poorly performing ones like you.” Does the employee have a case if she has genuinely poor performance? Does Stanton have a case if the City of Largo can show that he acted in a way that it could reasonably interpret as dishonest, disruptive, untrustworthy, poor managerial judgment or improper treatment of employees?
Congress dealt with this problem in its amendments to Title VII in the Civil Rights Act of 1991. It is illegal for a prohibited characteristic to be "a motivating factor for any employment practice, even though other factors also motivated the practice." However, if an employer can show that it would have taken the same action even without the discriminatory motive, the plaintiff cannot collect damages. However, the plaintiff can still hold the defendant liable and obtain injunctive relief and attorneys' fees, both potentially valuable remedies.
Thus, the City of Largo can defend against a claim by Stanton by showing legal reasons for his firing – dishonesty, untrustworthiness, disruptiveness, poor managerial judgment, or improper treatment of employees. It’s then up to Stanton either to disprove the existence of these allegations, or to show that they were, in fact, a pretext for discrimination.
Evaluating the City’s Defenses
The first three defenses are different from the last two. The first three directly relate to Stanton’s transsexuality. The claim there is that he didn’t come out soon enough, and that even though the newspaper revelations don’t seem to be his fault, his communications plan was faulty, leading to disruption in the city, and his behavior in going out as “Susan” before telling them was an dishonest and untrustworthy action. Of course, his defense to that, as set forth in the testimony arranged by his attorney at the second hearing, is to disprove these allegations. His attorney brought out testimony, though limited in the context of a short commission-style hearing, that his communications plan was, in fact, a good one as compared to best practices, and his actions in going out as “Susan” were simply part of the normal developmental course in cases of transsexuality. These issues are very new for the courts, and it is hard to say how the Florida Commission on Human Relations or a court would understand these issues. I’m not sure I understand them myself. But I think Stanton’s attorney did a great job of presenting these issues at the second hearing, and I think she has a lot more arrows in that quiver.
The last two potential defenses of the City, however, are more traditional, in that they bring up situations that existed before Stanton came out. I don’t think the issue of poor managerial judgment, independent of the transsexuality issue, was brought up at all during the hearings. In fact, it seems that everyone agreed that his managerial skills were top-notch, as evidenced by improvements in the town facilities and services. No one got up and said “this town is a dump and I can’t get my garbage collected.”
There were allegations, however, of improper treatment of employees, resulting in unfairness and poor morale. This consisted of two types of things: 1) telling employees that “he owned their mouth 24 hours a day,” and 2) firing employees for reasons perceived to be unduly harsh. The first one is a little unclear, but it seems to relate to a fairly common issue in governmental employment- what are the First Amendment rights of employees? In private enterprise, if an employee says rude things about his or her employer off the premises, the boss is entitled to fire them. However, in government service, an employee who speaks as a citizen, and on a matter of public concern is entitled to protection under the First Amendment to the US Constitution, as well as state constitutions. This is subject to all sorts of exceptions, and the law on this issue is as clear as mud. It’s an interesting side-issue, but I’m not going to review it here. Here’s a good article on the issue.
The second allegation, that of firing employees for reasons perceived to be unduly harsh, presents a problem for the City of Largo. According to newspaper accounts, this conduct had been previously brought to the attention of the City Commission, but no action was taken against him, and in fact, he was subsequently given good performance reviews and raises. If that is true, their assertion of the conduct is going to fall very flat. In fact, it may even result in the City Commission appearing to be deceptive. I would imagine any attorney advising them is going to tell them to forget about using improper treatment of employees as a defense. But see this article about one of the Commissioners defending her decision on this basis. (Ouch - her admissions are going to hurt Largo in any suit.)
"Gentry said she had concerns about his dealings with employees before. She mentioned them to him, but she didn't push him to change. She didn't want to micromanage him. But once Stanton announced his intentions - and requested the City Commission grant him the time to convince city employees he could do his job as a woman - Gentry said she felt it was time to scrutinize personnel issues more closely."
Of course, if the other City Commissioners were unaware of these issues until after his relevation, then such job performance issues could be very effective against Stanton. Stanton would, of course, have the opportunity to show that the reliance on these allegations is a pretext, but how would he show it? Have other Largo city managers done similar things and gotten a pass? Dunno, and I wouldn’t want to have to try to find out.
In conclusion, it’s my sense that, in order to win an employment discrimination case, Mr. Stanton would have to convince a decision-maker that he did not, in fact, act deceptively, disruptively or in an untrustworthy manner. I think he could do it.
Of course, whether he will be up to the emotional, financial and physical strain of litigation during his gender transition is another question. That's a difficult choice. It's at this point that most of your support structure departs for points unknown. Families, friends, homes, careers, money - all go right out the window - whoosh. My ex took my son and moved 150 miles away, I couldn't get my family and friends to return phone calls, my legal career ended, and I gave whatever money I had to my ex in exchange for my guilt at being who I am. That I'm still alive is a miracle. So I wish him luck and godspeed whatever his decision. But I'm sure he understands that its a tough road. We all do, when we open that door and step through. But there's really no choice.
(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.)
Monday, March 19, 2007
Protections for Transgender Workers on Rise
Here's an article from Workforce Management discussing what "discrimination law experts" say about protections for transgender workers.
Thursday, March 8, 2007
Stanton plans to appeal his firing
Northpinellas: Stanton plans to appeal his firing - Excerpt:
This signals an understanding that the appeal is not primarily legal in nature. The City Commission is not a court of law, nor are they likely to understand arguments appealing to legal authority.
The issue here is educating a City Commission and a public that has no experience with gender transition. The key is giving them an understanding of gender transition. They need to hear from experts in the field that Stanton was not deceptive in failing to disclose earlier, has a well-known medical condition (gender dysphoria), the condition requires him to take certain steps in transitioning, and it will not interfere with his ability to do the job of city manager.
LARGO - City Manager Steve Stanton says he plans to submit an appeal to his firing. He will request a public hearing to make his case around noon Thursday, he said.
Stanton, 48, who has been Largo's city manager for 14 years, said he plans to request a hearing about 30 days from now. He said he will need the time to put on a thorough presentation, which will take up to three hours and will feature national experts in medicine, psychology and the workplace transition process for transsexuals.
"I think this will certainly give the commission a good basis of information to make an informed decision," Stanton said. "I'm realistic enough to know its going to require an extraordinary step to stop the train going down track with a certain degree of speed and to confront some of the folks back in the commission chambers who will be talking about what Jesus what do."
If an appeal during a public hearing fails, Stanton hasn't said whether he would sue the city, but he doesn't relish the thought. "I do not feel this is a legal argument," he said. "It's not a matter of hiring an attorney to threaten to sue the city. That is not the argument I want to make."
This signals an understanding that the appeal is not primarily legal in nature. The City Commission is not a court of law, nor are they likely to understand arguments appealing to legal authority.
The issue here is educating a City Commission and a public that has no experience with gender transition. The key is giving them an understanding of gender transition. They need to hear from experts in the field that Stanton was not deceptive in failing to disclose earlier, has a well-known medical condition (gender dysphoria), the condition requires him to take certain steps in transitioning, and it will not interfere with his ability to do the job of city manager.
Sunday, March 4, 2007
Media Frenzy Over Stanton Firing
I am surprised at the amount of interest shown in the story of the firing of Steve Stanton, City Manager of Largo, Florida. (I gave my analysis of the law in my previous post.)
The discriminatory animus shown certainly deserves scrutiny, but there have been other stories equally deserving of interest from this point of view. For example, just last month, there was the story about John Nemecek (now Julie), a professor who was fired for much the same reason as Steve Stanton. That garnered a lot of media interest, more than I've seen in a while. Instead of a few articles filed under the category of "Bizarre News" in scattered papers around the world, as there usually is when these stories break, a Michigan daily newspaper, the Jackson Citizen Patriot, did a series of thoughtful articles, which went to the major US papers. The media interest in the Stanton story, however, is even larger. A Google search done this morning shows four times the number of English web pages ("John Nemecek" AND "Spring Arbor" = 9,000 "Steve Stanton AND Largo = 38,000). Since the Nemecek story has had a month to germinate, one would think it would be ahead of the Stanton story in terms of the number of web pages.
Google News this morning showed over 200 news sources carrying the Stanton story. It was one of Yahoo's most popular news stories on March 1. Google Blog Search shows over 300 blog posts on the issue (There are now 80 listed for the Nemecek story)
The Miami Herald published this story yesterday:
Largo sex change case draws media attention
The discriminatory animus shown certainly deserves scrutiny, but there have been other stories equally deserving of interest from this point of view. For example, just last month, there was the story about John Nemecek (now Julie), a professor who was fired for much the same reason as Steve Stanton. That garnered a lot of media interest, more than I've seen in a while. Instead of a few articles filed under the category of "Bizarre News" in scattered papers around the world, as there usually is when these stories break, a Michigan daily newspaper, the Jackson Citizen Patriot, did a series of thoughtful articles, which went to the major US papers. The media interest in the Stanton story, however, is even larger. A Google search done this morning shows four times the number of English web pages ("John Nemecek" AND "Spring Arbor" = 9,000 "Steve Stanton AND Largo = 38,000). Since the Nemecek story has had a month to germinate, one would think it would be ahead of the Stanton story in terms of the number of web pages.
Google News this morning showed over 200 news sources carrying the Stanton story. It was one of Yahoo's most popular news stories on March 1. Google Blog Search shows over 300 blog posts on the issue (There are now 80 listed for the Nemecek story)
The Miami Herald published this story yesterday:
Largo sex change case draws media attention
Transgender activists say there's only one thing unusual about the case of Largo, Fla., City Manager Steve Stanton: Not that he's being fired for planning to become a woman, but the deluge of publicity he's gotten as a result.
Here's Newsweek's story. And People magazine. Wikipedia now has a page for "Steve Stanton" detailing his life history. It's a fairly interesting read, though one must sometimes take Wikipedia with a grain of salt.
And here's a graph of this blog's page views from SiteMeter:
Why is this story so big?
"Other people have been fired, but not in such a public way and not at the behest of a screaming mob,'' said Matt Foreman, executive director of the National Gay and Lesbian Task Force. "Yes, people have lost their jobs because they've transitioned. But this is the most public case involving a hearing.'' This quote is in the Miami Herald story. Because the interest in the story began before the firing, I think attributing all of it to being publicly fired at the behest of irate citizens is missing part of the force of this story. I think part of the interest is that this involves an upstanding public official who breaks the prejudices that people have about transsexuals.
I have encountered three major prejudices about transsexuals. 1. They are mentally ill people with shattered lives. 2. They are promiscuous deviants obsessed with sex. 3. They have anti-social tendencies, including unethical or criminal conduct. Here, to the contrary, we have a public official responsible for running a large US city. He has explained his situation, when confronted by the St Petersburg Times, with dignity and aplomb. He is married with children. He has done an excellent job running a large US city for the past 14 years, and not been suspected of criminal or ethical wrongdoing. This is not a person living a shattered life, nor a sexual predator, nor a criminal. While the public may be slightly interested in the story of radiologist, ferry worker, cook, manager or professor (all of whom recently had stories in the news) fired because of transgender identity, I think the idea that an upstanding public official can also be a transsexual is non sequitur for most of the public. I think the idea that an upstanding person of any sort can also be a transsexual is non sequitur for most people.
Most people have never heard of a successful transsexual, though there are certainly plenty of recent descriptions if you look, including biographic books such as "She's Not There," from college professor Jennifer Finney Boylan, "Branded T," by psychotherapist Rosalyne Blumenstein, Jamison Green's "Becoming a Visible Man" Mark Rees "Dear Sir or Madam" and websites such as Lynn Conway's "Transsexual Women's Successes" and "Successful TransMen." Amy Bloom's "Normal," while not written by a transsexual, also shows successful trans lives.
In addition to this being a story of unusual publicity, I think it is also an unusual chance to educate journalists and the public about diversity.
Thursday, March 1, 2007
The Law Covering Steve (Susan) Stanton, City Manager Dismissed In Largo, Florida
The story broke last Thursday: "Largo official plans sex change."
The story involves Steve (Susan) Stanton, city manager of Largo, Florida. Stanton had planned to announce his* decision in June so his son could be out of town. But that changed after the St. Petersburg Times heard of possible changes in Stanton's life and approached him.
This type of behavior by the media, often referred to as "outing," is questionable, and may be a violation of the right of privacy of a public official. See Celebrity Privacy Rights And Free Speech: Recalibrating Tort Remedies For "Outed" Celebrities, 32 Harvard Civil Rights-Civil Liberties Law Review 449 (1997); "Outing" And Freedom Of The Press: Sexual Orientation's Challenge To The Supreme Court's Categorical Jurisprudence, 77 Cornell Law Review 103 (1991).
Yesterday, the City Commission that employed Stanton voted to fire him based on these revelations. This reaction is not surprising in light of the Largo City Commission’s votes against proposed ordinances protecting city employees from discrimination based on sexual orientation and gender identity in 2002 and 2003, as well as 2006. It is also ironic, in light of the argument made by some commissioners that Largo didn’t need such an ordinance. It is particularly unfortunate in its connection to the recent murder by a Largo resident of a transgender person, Reshae McCauley.
The question I’m interested in addressing is whether Stanton’s firing subjects Largo to liability for employment discrimination. I think it does, though the analysis is not a simple one.
The St. Petersburg Times published an article discussing the ins and outs of the law on this issue as well as a newspaper can discuss it, which is, of course, not much at all.
As most of you know, there is no federal law explicitly prohibiting employment discrimination based on gender identity or expression, and there's none in Florida either. Largo itself rejected three times a proposed ordinance on the subject. This would seem to indicate that Stanton is out of luck. But the law is tricky, so make sure you're holding you're lucky rabbit's foot when you try to make predictions.
Some federal courts have recently held that “sex discrimination,” which is explicitly prohibited by federal law, includes discrimination based on transgender identity. These courts include the Federal Sixth Circuit Court of Appeals (covering Ohio, Michigan, Kentucky and Tennessee) as well as seven federal district courts in Arizona, District of Columbia, New York, Oregon, Pennsylvania, Tennessee, and Washington.
The bad news is that none of these are in Florida, and so their rulings don’t bind the federal courts in Florida. In fact, the Federal District Court for the Middle District of Florida, which covers Largo, indicated that discrimination based on transsexuality didn’t seem to be covered by Title VII, the federal law prohibiting employment discrimination. Cox v. Denny's, Inc., 1999 WL 1317785 (M.D.Fla.,1999). However, there are favorable indications. The court did permit the transsexual plaintiff to assert a claim of sexual harassment, though it found the harassment not sufficiently severe or pervasive to rule in his favor. Furthermore, it based its statement about discrimination based on transsexuality on the fact that, in 1999, the courts were then unanimous in finding discrimination based on transsexuality not actionable under Title VII. Since many courts have since decided that discrimination based on transsexuality is actionable under Title VII, perhaps the Middle District courts will change their minds.
A positive signal in this regard is the recent federal case of Mowery v. Escambia County Utilities Authority, 2006 WL 327965 (N.D.Fla. 2006). The court said that discrimination based on “perceived failure to conform to a masculine gender role” could be actionable. It favorably quoted from several cases suggesting that transgender discrimination is sex discrimination. It mentioned Rosa v. Park West Bank, 214 F.3d 213, 215-16 (1st Cir.2000), which found that a bank was liable for sex discrimination if it refused to serve a customer whose dress "did not accord with his male gender", and Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir.2000), which held that disparate treatment based on nonconformity with sexual stereotypes is sex discrimination", and Centola v. Potter, 183 F.Supp.2d 403, 410 (D.Mass.2002), in which the court refused to dismiss a lawsuit in which co-workers may have perceived the plaintiff as "impermissibly feminine for a man", and Ianetta v. Putnam Investments, Inc., 2002 U.S. Dist. LEXIS 3277, (D.Mass.2001), in which the court permitted a lawsuit alleging discrimination because the plaintiff did not conform to the male gender stereotype. These favorable quotes signal that the Mowery court is leaning in favor of the idea that transgender discrimination is sex discrimination. Although the Mowery case is in the Northern District of Florida, and not the Middle District which covers Largo, recent opinions on exactly the same issue by nearby jurisdictions are often considered very persuasive.
Interestingly, the Eleventh Circuit may be in on the fun too. The Eleventh Circuit, which covers appeals from the federal courts in Florida, Georgia and Alabama, is often considered very conservative. This is not true in every area, however, for it is quite progressive in the area of sex discrimination. For example, it ruled in favor of male plaintiffs who alleged sexual harassment by other males in 1997, a time when more conservative circuits were throwing out such claims on the ground that they were not motivated by “sex.” Its decision in Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir. 1997), anticipated by a year the Supreme Court’s surprising Oncale decision, which permitted male-on-male sexual harassment claims. The Oncale decision is considered by some to be an opinion which implicitly recognizes that “sex discrimination” includes discrimination based on gendered behavior, whether or not sexually motivated. Based on this analysis, a suit by Stanton in federal court alleging violation of Title VII, the federal anti-discrimination statute, could prove a winner, if all the stars lined up just right.
One of the things that may get in the way of those stars is the fact that Title VII, by its own terms, doesn’t apply to “any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.” 42 USC 2000e-2(f). Is Stanton a member of the “personal staff” of the elected officials of the City Commission? Is she “an appointee on the policymaking level?” These might be some of those “who knows?” type questions. Fortunately, dear Reader, the courts have set some guidelines on these issues.
In determining whether a public employee falls within the “policymaking level” exception to Title VII, the looks at whether: (1) the employee has discretionary, rather than solely administrative powers; (2) the employee serves at the pleasure of the appointing authority; and (3) the employee formulates policy. In Gomez v. City of Eagle Pass, 91 F.Supp.2d 1000 (W.D.Tex. 2000), the federal court held that the City Manager was not a "policymaker" for purposes of determining whether position was subject to Title VII, even if the city manager had power to fire and hire. The city council held power to determine city policy, the city manager was responsible only for ministerial execution of the laws and the administration of city, and the city manager's personnel decisions were circumscribed by local custom, city ordinances, state statutes and the city charter.
In regard to the “personal staff” exception, the Gomez court looked at (1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position is personally accountable to only that elected official, (3) whether the in the position at issue represents an elected official in eyes of public, (4) whether the elected official exercises a considerable amount of control over position, (5) the level of the position within the organization's chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position. The court found that the City Commission was not an "official," so the exception did not apply.
The same thing happened recently in Alabama. In Horne v. Russell County Commissioners, 379 F.Supp.2d 1305 (M.D.Ala. 2005), the federal court in Alabama found that the County Administrator, hired by the County Board, did not fall within the exceptions, because the plain language of the statute does not encompass persons who serve at the direction of a board or body of public officials, rather than a single public official. There is even a case in the Eleventh Circuit Court of Appeals, which covers appeals from Florida federal courts, that has recognized that a City Manager in Florida can sue the City Commission for gender discrimination, although the plaintiff lost in that case. Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332 (11th Cir. 1999). The Eleventh Circuit has also noted that "other courts, often citing the legislative history of Title VII, have also concluded that the ... personal staff exemption ... is to be narrowly construed." E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir.1985). So Title VII covers Stanton, and the exceptions for public policymakers and staff of elected officials do not apply.
As a side note, Mr. Stanton also has a cause of action for violation of due process against the State and City under the federal constitution. A tenured employee is entitled to oral or written notice of the charges against him, and a hearing before an unbiased decision-maker. McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994). Obviously, there is a claim of bias against the City Commission here. The catch-22 of McKinney, however, is that the ruling must be appealed to the state court within 30 days of the City Commission’s decision in a procedure called “writ of certiorari,” as set forth in the Florida Civil Procedure Rule 1.630, and the Florida case of Stansberry v. City of Lake Helen, 425 So.2d 1157 (Fla.App. 1982). If this writ is not filed within 30 days, then the federal courts will throw out any later claim of due process violation because the employee didn’t give the State a chance to correct the violation.
Above I’ve discussed federal rights, but there is law on the state level that could give grounds for a lawsuit. Although Florida has no statute explicitly prohibiting discrimination on the basis of gender identity, the Florida Division of Administrative Hearings has ruled that an individual with “gender dysphoria,” a medical term for transsexuality, is within the disability coverage of the Florida Human Rights Act. Smith v. City of Jacksonville Correctional Inst., 1991 WL 833882 (Fla. Div. Admin. Hrgs. 1991). In that case, the tribunal found that a corrections officer who was dismissed upon revealing transsexuality was protected from dismissal based upon the disability created by the perceptions of the employer. The tribunal also rejected the employer's claim that inmates would not respect a transsexual, thus making non-transsexuality a "bona fide occupational qualification." If the Smith case is applied to Mr. Stanton's case, then discrimination based on his gender identity is discrimination based on perceived disability within the conception of Florida state law, and the claim that city residents and employees will not respect Stanton after transition cannot be used as a justification. In the St. Petersburg Times story on the legal issues, the paper quoted Tampa lawyer Theresa Gallion, a managing partner at Fisher & Phillips, a national labor and employment law firm, who cautioned against putting too much stock in that case, noting that it is not binding on Florida courts.
"The bottom line is that there are very few protections unless you live in one of the states" that specifically list transgender people in their antidiscrimination laws, she said.
She's right, of course, that the Florida Division of Administrative Hearings decision is not binding on other Florida courts outside the administrative system, but the decision points in Stanton's direction, and against the City Commission. But then Ms. Gallion should be expected to side with management, as her firm, Fisher & Phillips, only represents management.
Strangely enough, after all the talk about how Largo voted down three proposed ordinances covering gender identity, there is, in fact, a city policy that could provide protection to Stanton. HRC reported that Largo approved such a policy after the 2003 proposal was defeated, as set forth below. Here's a quote from that policy as found on the internet:
A-3. Implementation of Discrimination and Harassment Prohibition Policy
“Human Resources Director Sinz reports that the City Commission has approved the Discrimination and Harassment Prohibition policy effective immediately. The new policy specifically prohibits bias, prejudice, intimidation, coercion and harassment by any City employee at the work place, during business trips, or at City functions. The new policy mandates treating all human beings with respect regardless of race, religion, national origin, gender, age, disability, sexual orientation, and gender identity or expression.”
This new policy was also reported in the local papers in 2004. So Stanton has federal, state and local law potentially protecting him from dismissal on the basis of gender identity. If I were on the City Commission of Largo, I’d call the City’s insurance agent ASAP to check on the litigation coverage.
(*NCLR, which is representing Stanton, has issued a release noting that it will "use male pronouns out of respect for Steve’s preference for their use by those who aren’t his close family and friends until he begins his transition.")
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For an update, see http://jweissdiary.blogspot.com/2007/03/update-on-law-covering-steve-stanton_20.html
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.
Sunday, December 3, 2006
Lansing, Michigan considers gender identity proposal
Nearly 200 people packed Lansing's City Council chambers on November 21 to voice their opinions about the city's human rights proposal, which would supplement the city's existing statute to prohibit harassment and discrimination based on gender identity and sexual orientation, as well as student and marital status.
According to the Lansing State Journal, people on both sides of the issue spoke "passionately" about the ramifications of the ordinance, with most speaking in favor of the ordinance. [9 spoke against, 21 people spoke in favor] The eight-member council is expected to pass it unanimously Dec. 11. Mayor Virg Bernero said at the meeting that he fully supports the proposal. The measure, however, is similar to one passed by the City Council in 1996 that later was voted down by residents.
As I've noted before, officials in cities with close connections to international business tend to favor expanding human rights laws because they are believed to bring job growth. Lansing is the capital of Michigan, with a population of 120,000 and a metro area population of 460,000 as of the 2000 census. It is an important center for manufacturing, educational, cultural, and governmental institutions, including three medical schools, two law schools, a Big Ten Conference university (Michigan State), and headquarters of four national insurance companies, including Fortune 500 insurer Auto-Owners Insurance.
I've discussed the tie-in with the "Florida theory" before. It's also called the 3T's formula, which stands for Technology, Talent and Tolerance (Florida 2003). The GLBT population is seen, in this connection, as a measure of the "creative class" within geographic areas and as part of an index to determine their attractiveness to high-tech businesses. The creator of this index, Dr. Richard Florida of Carnegie Mellon University, is a sought-after lecturer and consultant for cities seeking to revitalize, and his theory was named as number 2 on Harvard Business Review's list of breakthrough ideas for 2004. (Richard Florida Creativity Group2004)
Interestingly, Councilwoman Kathie Dunbar, a proponent of the measure, cited the Florida theory as an important reason for passage, though not by name. Dunbar alluded to this when she said that the new ordinance will help make Lansing an "epicenter for a diverse, culturally literate population that makes up what we would consider a cool city." "We want to move this city forward — we want to bring technology, innovation and creativity downtown," she said. "You can’t do that unless you have a diversity of viewpoints. You don’t get that unless you protect the diversity of your citizens." Mayor Virg Bernero echoed Dunbar’s sentiments.
There has been a lot of movement on gender identity issues in Michigan lately. The Sixth Circuit Court of Appeals, which has interpreted the Civil Rights Act of 1964's ban on sex discrimination to include dismissal because of transgender status, covers Michigan (as well as Kentucky, Ohio and Tennessee). Therefore, it is currently a violation of federal law to discriminate on the basis of gender identity in Michigan. Other Michigan cities with policies including gender identity include Ann Arbor, Dearborn Heights, East Lansing, Grand Rapids, Huntington Woods, Kalamazoo and Ypsilanti. (I note that Dearborn Heights isn't listed in the HRC database, but it does have such an ordinance. Fair warning for journalists: HRC's databases are useful, but not the last word because no one seems to be updating them.) Major employers based in Michigan that include protection of gender identity in their policies include Borders Group, DaimlerChrysler, Dow Chemical, Ford Motor, General Motors, Valassis Communications, Visteon, Volkwagen of America, and Whirlpool.
Not all is sunshine in Lansing, however. There is a controversy among proponents of the measure. The measure specifically states in its definition of gender identity that it is permissible to restrict the use of restrooms, locker rooms, dressing rooms and health clubs on the basis of sex. Since Michigan law (like the law of every other state in the US) is unclear about when, if ever, I can change my sex, even after surgery, and for what purposes, this could permit requiring all transgender persons to use the facilities of their birth sex.
In an article on the issue, some proponents said that the ordinance determines sex by what is listed on his or her driver's license. This requirement doesn't show up in the text of the ordinance that I've seen, but it may be in a different draft. However, it's interesting to see what people's reactions are. Cindy Redman, a lesbian who serves on the Lansing Association for Human Rights' board, said at a recent Council committee meeting that she doesn't want to shower with anyone with a penis. "If they still have a penis, they're going to be identified as man," she said.
But the article notes that the National Gay and Lesbian Task Force in Washington said allowing discrimination on the basis of sex is unfair to transgender persons. "The requirement of state issued identification may interfere with the ability of transgender people to use the facility that matches their gender identity," Kara Suffrendini, legislative lawyer for the National Gay and Lesbian Task Force, wrote to Councilwoman Kathie Dunbar, who crafted the ordinance.
According to Suffrendini, the five Michigan cities with laws on the books protecting transgender people — Ann Arbor, Grand Rapids, East Lansing, Huntington Woods and Ypsilanti — do not require them to "prove their sex using state-issued identification." Suffrendini said using driver's licenses as proof of sex would be "inconsistent with the social and medical consensus that transgender people should be granted access to bathrooms and other facilities based on their identity, not their surgical status." Dunbar said that aspect will be discussed as the final language is drafted prior to the Council's vote. "There is a contention that until you've had that surgery, the state does not recognize you as the opposite sex to which you're transitioning."
As it turns out, the Michigan Secretary of State does have a policy regarding gender marker changes on drivers' licenses and state IDs, where it only permits a gender marker change if the person has completed sexual reassignment surgery. Last year, the Michigan ACLU was successfully able to persuade the Secretary of State's office to go back to its old policy, which did not require sex reassignment surgery. However, this success lasted about two weeks, when complaints from groups like the American Family Association caused the Secretary of State's office to revert to its surgery requirement. (Click here for the Michigan ACLU brochure on transgender issues in Michigan)
The AFA has, in fact, started a campaign against this ordinance as well. According to an article in LSJ, Gary Glenn, president of the American Family Association of Michigan, said he is forming a coalition to start a voter referendum to overturn the ordinance after its expected passage on Dec. 11. Glenn and his group would have 30 days after the ordinance is passed to gather signatures from 4,371 registered Lansing voters. The battle looks uphill, however. Two years ago, the heavily Democratic city was one of only a handful of cities to vote against the gay marriage ban. Glenn sent out a mass e-mail to Lansing-area church leaders last Thursday, urging them to come and testify, but only nine people spoke in opposition, and several of them were Council "regulars." In contrast, 21 people spoke in favor of the ordinance.
The AFA website contains talking points for those who would campaign against the ordinance. Interestingly, the talking point include this fun fact: "The effects of this provision are so radical that even Democratic Congressman Barney Frank of Massachusetts, the leading homosexual activist in Congress, refuses to include the 'gender identity and expression' language in his federal 'gay rights' legislation…"
It should be noted, however, that Representative Frank has since revised his views, and a federal bill including gender identity has been introduced under his sponsorship.
According to the Lansing State Journal, people on both sides of the issue spoke "passionately" about the ramifications of the ordinance, with most speaking in favor of the ordinance. [9 spoke against, 21 people spoke in favor] The eight-member council is expected to pass it unanimously Dec. 11. Mayor Virg Bernero said at the meeting that he fully supports the proposal. The measure, however, is similar to one passed by the City Council in 1996 that later was voted down by residents.
As I've noted before, officials in cities with close connections to international business tend to favor expanding human rights laws because they are believed to bring job growth. Lansing is the capital of Michigan, with a population of 120,000 and a metro area population of 460,000 as of the 2000 census. It is an important center for manufacturing, educational, cultural, and governmental institutions, including three medical schools, two law schools, a Big Ten Conference university (Michigan State), and headquarters of four national insurance companies, including Fortune 500 insurer Auto-Owners Insurance.
I've discussed the tie-in with the "Florida theory" before. It's also called the 3T's formula, which stands for Technology, Talent and Tolerance (Florida 2003). The GLBT population is seen, in this connection, as a measure of the "creative class" within geographic areas and as part of an index to determine their attractiveness to high-tech businesses. The creator of this index, Dr. Richard Florida of Carnegie Mellon University, is a sought-after lecturer and consultant for cities seeking to revitalize, and his theory was named as number 2 on Harvard Business Review's list of breakthrough ideas for 2004. (Richard Florida Creativity Group2004)
Interestingly, Councilwoman Kathie Dunbar, a proponent of the measure, cited the Florida theory as an important reason for passage, though not by name. Dunbar alluded to this when she said that the new ordinance will help make Lansing an "epicenter for a diverse, culturally literate population that makes up what we would consider a cool city." "We want to move this city forward — we want to bring technology, innovation and creativity downtown," she said. "You can’t do that unless you have a diversity of viewpoints. You don’t get that unless you protect the diversity of your citizens." Mayor Virg Bernero echoed Dunbar’s sentiments.
There has been a lot of movement on gender identity issues in Michigan lately. The Sixth Circuit Court of Appeals, which has interpreted the Civil Rights Act of 1964's ban on sex discrimination to include dismissal because of transgender status, covers Michigan (as well as Kentucky, Ohio and Tennessee). Therefore, it is currently a violation of federal law to discriminate on the basis of gender identity in Michigan. Other Michigan cities with policies including gender identity include Ann Arbor, Dearborn Heights, East Lansing, Grand Rapids, Huntington Woods, Kalamazoo and Ypsilanti. (I note that Dearborn Heights isn't listed in the HRC database, but it does have such an ordinance. Fair warning for journalists: HRC's databases are useful, but not the last word because no one seems to be updating them.) Major employers based in Michigan that include protection of gender identity in their policies include Borders Group, DaimlerChrysler, Dow Chemical, Ford Motor, General Motors, Valassis Communications, Visteon, Volkwagen of America, and Whirlpool.
Not all is sunshine in Lansing, however. There is a controversy among proponents of the measure. The measure specifically states in its definition of gender identity that it is permissible to restrict the use of restrooms, locker rooms, dressing rooms and health clubs on the basis of sex. Since Michigan law (like the law of every other state in the US) is unclear about when, if ever, I can change my sex, even after surgery, and for what purposes, this could permit requiring all transgender persons to use the facilities of their birth sex.
In an article on the issue, some proponents said that the ordinance determines sex by what is listed on his or her driver's license. This requirement doesn't show up in the text of the ordinance that I've seen, but it may be in a different draft. However, it's interesting to see what people's reactions are. Cindy Redman, a lesbian who serves on the Lansing Association for Human Rights' board, said at a recent Council committee meeting that she doesn't want to shower with anyone with a penis. "If they still have a penis, they're going to be identified as man," she said.
But the article notes that the National Gay and Lesbian Task Force in Washington said allowing discrimination on the basis of sex is unfair to transgender persons. "The requirement of state issued identification may interfere with the ability of transgender people to use the facility that matches their gender identity," Kara Suffrendini, legislative lawyer for the National Gay and Lesbian Task Force, wrote to Councilwoman Kathie Dunbar, who crafted the ordinance.
According to Suffrendini, the five Michigan cities with laws on the books protecting transgender people — Ann Arbor, Grand Rapids, East Lansing, Huntington Woods and Ypsilanti — do not require them to "prove their sex using state-issued identification." Suffrendini said using driver's licenses as proof of sex would be "inconsistent with the social and medical consensus that transgender people should be granted access to bathrooms and other facilities based on their identity, not their surgical status." Dunbar said that aspect will be discussed as the final language is drafted prior to the Council's vote. "There is a contention that until you've had that surgery, the state does not recognize you as the opposite sex to which you're transitioning."
As it turns out, the Michigan Secretary of State does have a policy regarding gender marker changes on drivers' licenses and state IDs, where it only permits a gender marker change if the person has completed sexual reassignment surgery. Last year, the Michigan ACLU was successfully able to persuade the Secretary of State's office to go back to its old policy, which did not require sex reassignment surgery. However, this success lasted about two weeks, when complaints from groups like the American Family Association caused the Secretary of State's office to revert to its surgery requirement. (Click here for the Michigan ACLU brochure on transgender issues in Michigan)
The AFA has, in fact, started a campaign against this ordinance as well. According to an article in LSJ, Gary Glenn, president of the American Family Association of Michigan, said he is forming a coalition to start a voter referendum to overturn the ordinance after its expected passage on Dec. 11. Glenn and his group would have 30 days after the ordinance is passed to gather signatures from 4,371 registered Lansing voters. The battle looks uphill, however. Two years ago, the heavily Democratic city was one of only a handful of cities to vote against the gay marriage ban. Glenn sent out a mass e-mail to Lansing-area church leaders last Thursday, urging them to come and testify, but only nine people spoke in opposition, and several of them were Council "regulars." In contrast, 21 people spoke in favor of the ordinance.
The AFA website contains talking points for those who would campaign against the ordinance. Interestingly, the talking point include this fun fact: "The effects of this provision are so radical that even Democratic Congressman Barney Frank of Massachusetts, the leading homosexual activist in Congress, refuses to include the 'gender identity and expression' language in his federal 'gay rights' legislation…"
It should be noted, however, that Representative Frank has since revised his views, and a federal bill including gender identity has been introduced under his sponsorship.
Saturday, December 2, 2006
SHRM weighs in on DC regs
SHRM Online came out with an article December 1 on the DC regulations that I blogged about last week. SHRM called me for an interview, and here's my star quote: "'These regulations are “surprisingly comprehensive,' said Jillian Todd Weiss, assistant professor of law and society at Ramapo College of New Jersey, in a Nov. 27 phone interview." Although the writer then refers to the "eight" states that have laws, a phrasing I have seen over and over again, though as we know there are 7 with explicit statutes and 15 with law of some kind, she does a good job of setting out the basics for the millions of SHRM readers whose radar is just dimly beginning to register a blip.
I wrote a long post on this issue, but it looks like Blogger deleted half of it when I published, so this will have to do. Next time I'll write it in Word and save it first. Ouch :-(
I wrote a long post on this issue, but it looks like Blogger deleted half of it when I published, so this will have to do. Next time I'll write it in Word and save it first. Ouch :-(
Monday, November 27, 2006
DC Regulations Prohibiting Gender Identity Discrimination
The D.C. Human Rights Commission has created regulations designed to implement the changes to the DC Human Rights Act that incorporated gender identity and expression made in March of this year. The rules, effective on October 27, 2006, are known as the “Compliance Rules and Regulation Regarding Gender Identity or Expression.” Specifically, the regulations provide guidance to employers, housing, and commercial space providers, public accommodations, educational institutions, and the DC government on the requirements of the law. The regulations ensure that transgender individuals are treated in a manner that is consistent with their identity or expression, rather than according to their presumed or assigned sex or gender. As an example, the regulations direct entities to allow transgender individuals the right to use restrooms, dressing rooms, and other facilities that are consistent with their gender identity or expression.
These regulations are remarkably comprehensive, specific and progressive, even more so than the San Francisco regs or New York guidelines. There are a lot of similarities -- for example, all three prohibit gender identity discrimination and specifically address the foreseeable issues, such as access to restrooms. But only DC requires by regulation that employers permit access to the restrooms that are "consistent with" the employee’s gender identity or gender expression. That means if I identify as a woman, or express my gender as a female (regardless of whether I identify as a man or woman), I must be allowed access to the women's restroom the same as other women.
By contrast, SF's regs say only that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, omitting the term "consistent with" (although that phrase is used elsewhere in the document) . Would a single use bathroom in the basement be okay? I'm not sure, but it's not terribly clear, either. New York City's guidelines merely say that failure to allow use of a restroom consistent with gender identity or gender expression is one of the "factors that suggest that discriminatory conduct related to gender identity has occurred." Since NYC's rules are not regulations, but guidelines, they don't have the force of law. Though it is likely that the NYC Human Rights Commission will take them seriously, it's not clear whether a court would do so. Its status is also in doubt (minor though it may be, to my mind) because NYC has court precedent saying that bathrooms may be segregated on the basis of "biological sex", though only in the NY Supreme Court (the lowest of New York State's court system and not binding on any other courts).
And when it comes to locker rooms, SF and NYC get positively vague. SF says employers only need to make "reasonable accommodations" in this regard and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (That last part contradicts another part of the document, which says that asking for proof of gender before a trangender person is permitted access is prohibited.) As to what's "reasonable" -- lawyers have long known that "reasonable" is a synonym for "what 12 people who couldn't get out of jury duty think is normal." And NYC again says that not allowing use of a locker room consistent with gender identity or gender expression is a factor "suggesting" discrimination. DC, however, comes right out and says that employers "shall allow" employees the use of dressing rooms "consistent with" not only their "gender identity" but also their "gender expression" and regardless of whether they have ID or a doctor's note (and requiring one is prohibited).
SF's regulatory scheme "strongly urges" that all single-use bathrooms be designated gender neutral, and NYC's guideline "recommends" it, but only DC says that employers "shall" use gender-neutral signage for single occupancy restrooms.
SF and NYC have some language prohibiting harassment, but only DC spells out specific foreseeable scenarios that protect transgender employee privacy:
Interestingly, the DC regs use and define the term "transgender," which very few statutes do because the term is so ambiguous. The regs give a definition that indicates that anyone whose identity or behavior differs from gender stereotypes is transgender. That's pretty broad. Under this standard, is that guy in the office who likes to cook and go to chick flicks transgender? Not sure, but seems like it. The only other place I've seen the term used is in Cincinnati, and theirs was similarly overinclusive, requiring gender characteristics, behavior, and/or self-identification typical of or commonly associated with persons of another gender.
While I realize that the word "transgender" is intentionally inclusive, and is considered an "umbrella term" for all sorts of gender variance, I disagree with those who would define transgender to include every person who engages in some atypical behavior, which includes every last one of us on earth. As the Oxford English Dictionary says "a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these." There is an identity component in there somewhere, I believe.
These regulations are remarkably comprehensive, specific and progressive, even more so than the San Francisco regs or New York guidelines. There are a lot of similarities -- for example, all three prohibit gender identity discrimination and specifically address the foreseeable issues, such as access to restrooms. But only DC requires by regulation that employers permit access to the restrooms that are "consistent with" the employee’s gender identity or gender expression. That means if I identify as a woman, or express my gender as a female (regardless of whether I identify as a man or woman), I must be allowed access to the women's restroom the same as other women.
By contrast, SF's regs say only that employers must provide transgender employees with a bathroom "appropriate" to their gender identity, omitting the term "consistent with" (although that phrase is used elsewhere in the document) . Would a single use bathroom in the basement be okay? I'm not sure, but it's not terribly clear, either. New York City's guidelines merely say that failure to allow use of a restroom consistent with gender identity or gender expression is one of the "factors that suggest that discriminatory conduct related to gender identity has occurred." Since NYC's rules are not regulations, but guidelines, they don't have the force of law. Though it is likely that the NYC Human Rights Commission will take them seriously, it's not clear whether a court would do so. Its status is also in doubt (minor though it may be, to my mind) because NYC has court precedent saying that bathrooms may be segregated on the basis of "biological sex", though only in the NY Supreme Court (the lowest of New York State's court system and not binding on any other courts).
And when it comes to locker rooms, SF and NYC get positively vague. SF says employers only need to make "reasonable accommodations" in this regard and only for "gender identity which is publicly and exclusively asserted" and for which they have ID or a doctor's note. (That last part contradicts another part of the document, which says that asking for proof of gender before a trangender person is permitted access is prohibited.) As to what's "reasonable" -- lawyers have long known that "reasonable" is a synonym for "what 12 people who couldn't get out of jury duty think is normal." And NYC again says that not allowing use of a locker room consistent with gender identity or gender expression is a factor "suggesting" discrimination. DC, however, comes right out and says that employers "shall allow" employees the use of dressing rooms "consistent with" not only their "gender identity" but also their "gender expression" and regardless of whether they have ID or a doctor's note (and requiring one is prohibited).
SF's regulatory scheme "strongly urges" that all single-use bathrooms be designated gender neutral, and NYC's guideline "recommends" it, but only DC says that employers "shall" use gender-neutral signage for single occupancy restrooms.
SF and NYC have some language prohibiting harassment, but only DC spells out specific foreseeable scenarios that protect transgender employee privacy:
It's good to provide specific guidance to employers. However, since mistakes in pronoun usage, annoying curious personal questions and whispers behind the back are standard fare for transgender people, I think training is going to be very important for litigation control. Of course, a couple of incidents may not meet the threshhold requirement that the conduct is so pervasive that it "alters the terms of employment," but these things add up quickly.(a) Deliberately misusing an individual’s preferred name form of address or gender-related pronoun;
(b) Asking personal questions about an individual’s body, gender identity or expression, or gender transition;
(c) Causing distress to an individual by disclosing to others that the individual is transgender; and
(d) Posting offensive pictures, or sending offensive electronic or other communications.
Interestingly, the DC regs use and define the term "transgender," which very few statutes do because the term is so ambiguous. The regs give a definition that indicates that anyone whose identity or behavior differs from gender stereotypes is transgender. That's pretty broad. Under this standard, is that guy in the office who likes to cook and go to chick flicks transgender? Not sure, but seems like it. The only other place I've seen the term used is in Cincinnati, and theirs was similarly overinclusive, requiring gender characteristics, behavior, and/or self-identification typical of or commonly associated with persons of another gender.
While I realize that the word "transgender" is intentionally inclusive, and is considered an "umbrella term" for all sorts of gender variance, I disagree with those who would define transgender to include every person who engages in some atypical behavior, which includes every last one of us on earth. As the Oxford English Dictionary says "a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these." There is an identity component in there somewhere, I believe.
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.
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