Last week, a Colorado jury sentenced Allen Andrade to life in prison for the brutal murder of 18-year-old Angie Zapata. The jury rejected Andrade's attempt to mitigate his crime by arguing he was provoked into a crime of passion following the discovery that Zapata, with whom he'd had a sexual encounter, was a transgender woman. Queer and transgender blogs covered the story of the trial quite thoroughly (I've mentioned it previously too), and I won't recount all that here. Suffice to say that whatever my usual qualms about our criminal justice system, the Zapata verdict was reassuring in its rejection of the desperate but nonetheless vile victim-blaming defense strategy. Still, a number of commentators have predictably placed the blame on Zapata for her own gruesome death by condemning her supposed "deception" about her gender history. (The local paper covering the trial even ran the headline "Andrade: Stunned Victim or homophobe?") Some have gone so far as to suggest that such "deception" of a sexual partner could constitute criminal sexual assault.
The suggestion that transgender people who fail to disclose their gender history to sexual partners are themselves perpetrators of sexual violence owes more to horror of transgender people themselves, and of perceived "homosexual" acts, than to legal interpretation. Yes, many rape and sexual assault statutes state that deception vitiates consent. But the inherently malleable concept of deception has rightly been narrowly interpreted by courts. In this and a subsequent post I hope to sketch out some of the how and why of that interpretation, and why extending it to situations like the Zapata case would be legally untenable and morally unacceptable.
American and British courts have interpreted the concept of deception in rape and sexual assault statutes narrowly, to account for a few obvious situations in which the defendant's conduct obviously vitiates consent and fits within, or closely resembles, the common law concept of battery. See, e.g., David P. Bryden, Redefining Rape, 3 Buffalo Crim. L. Rev. 317, 457-75 (2000). This is a sensible approach, given how malleable and potentially limitless the concept of deception is.
Nature of the act. Courts have regularly said that fraud concerning the "nature of the act" vitiates consent, but by that they mean something very specific: the defendant causes the victim to believe that an otherwise unwanted sexual contact is something else entirely. The classic examples are medical professionals purporting to conduct a clinical examination or deliver a medical treatment.
Mistaken identity. Courts have also recognized identity fraud as vitiating consent, and this also means something very specific: the defendant causes the victim to believe that the defendant is actually some other person altogether. The classic example is the defendant posing as a person's spouse.
Infection, fertility and common-law battery. Several states now criminalize exposure of unwitting sexual partners to a sexually transmitted disease, but this is not classified as a species of rape. Rather, it is considered akin to common-law battery; liability is based not on whether the sexual partner would have consented given certain information, but rather on the potential physical injury. One could also imagine liability for lying about having had a vasectomy, but in this scenario, too, liability would be based not on the notion that consent to sex was vitiated as such, but that the victim would probably have insisted on using contraception. It was not the sex that was unwanted, but the consequences. These statutes are controversial, of course, both as a matter of justice and of public health.
In a follow-up post I intend to sketch the debate over extending the deception concept to other scenarios, and argue that doing so is unwise; and to discuss briefly the handful of cases in which transgender people have been prosecuted for "deception" of sexual partners.
Tuesday, April 28, 2009
Thursday, April 23, 2009
Surfing cable is not "exhibiting harmful matter to a minor"
The California Court of Appeals recently overturned a conviction for "exhibiting harmful material to a minor," also known as "showing kids dirty pictures." The court ruled that there was insufficient evidence that the television segments involved fit the statutory definition.
Cable is not a crime. Shaun Martin at the California Appellate Report has this assessment of the case:
I understand the rationale here: it is not the mere exposure of minors to racy material that is punished, but the use of the material to facilitate abuse. But I'm not sure whether it is either necessary or wise as a matter of policy. Not sure whether it's necessary, because there are any number of other things a person might do to "groom young victims for acts of molestation" other than show them pornography -- engage in sexual talk with them, for example, or give them alcohol, or do any number of other things to curry affection and normalize inappropriate intimacy -- and we don't separately criminalize them. Not sure whether it's wise, because the intent factor fails to set clear, objective boundaries on when prosecution is appropriate. Public screenings are clearly exempted, but in any one-on-one interaction there exists the possibility of unintended but untoward appearances. It is at least reassuring, however, that the California Court of Appeals has previously interpreted this law to require a specific intent to entice the minor into physical sexual contact with the defendant, as opposed to encouraging the minor to, e.g., masturbate alone. People v. Jensen, 114 Cal.App. 4th 224 (App. 6 Dist. 2003).
Who cares? Prof. Shaun had these closing thoughts on People v. Dyke:
Cable is not a crime. Shaun Martin at the California Appellate Report has this assessment of the case:
(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well. So if you're convicted of misdemeanor sexual battery (as David was here in Count II), that's fair.The court noted that there was no way to tell from the sketchy descriptions of the TV segments involved whether, under the terms of the statute, the allegedly "harmful matter" lacked "serious value":
(2) More relevant to this appeal, however -- and to most of us law-abiding citizens as well-- it's not illegal to be flipping through channels on the television and stumble across an NBC, HBO, or (even) Cinimax program. Even if a 16-year old is present. And even if you (allegedly) linger on a fake sex scene -- e.g., your typical broadcast "waist up, lots of grunting" shot) longer than you should given the audience. That's what's on television nowadays. It's not obscene. And it does not count as illegally "exhibiting harmful material to a minor," for which David was convicted in Count One. Watching regular television simply isn't a crime. Even if it's "Leaving Las Vegas," "American Beauty," or (to your eternal regret) "Showgirls"....
Was the dance by the unclothed female lurid, artistic, or even a cultural or tribal dance? There is no way to know and no reasonable basis for inferring that it lacked such value. As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare‘s Romeo and Juliet.Should "exhibiting harmful matter to a minor" be criminal? Although overturning the conviction in this case, the appeals panel made clear that they saw no constitutional or policy problem with the law, and in fact, went out of their way to suggest that the law could and should be drafted more broadly, so as to capture cases like this one. Specifically, they noted that the legislature had narrowed the definition of "harmful matter" in 1988 so that it essentially tracked the Supreme Court's definition of obscenity. The judges suggested, though, that the First Amendment does not require a statute like this to be so narrow, because the statute also required that the exhibiting must be done "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor." The court said this was a case of "mixed speech and expression," and so it would be permissible to reach a broader category of otherwise-protected speech. The court said it "would encourage the Legislature to revisit this issue, given the potential consequences of so narrowly defining harmful matter when it is used to groom young victims for acts of molestation."
I understand the rationale here: it is not the mere exposure of minors to racy material that is punished, but the use of the material to facilitate abuse. But I'm not sure whether it is either necessary or wise as a matter of policy. Not sure whether it's necessary, because there are any number of other things a person might do to "groom young victims for acts of molestation" other than show them pornography -- engage in sexual talk with them, for example, or give them alcohol, or do any number of other things to curry affection and normalize inappropriate intimacy -- and we don't separately criminalize them. Not sure whether it's wise, because the intent factor fails to set clear, objective boundaries on when prosecution is appropriate. Public screenings are clearly exempted, but in any one-on-one interaction there exists the possibility of unintended but untoward appearances. It is at least reassuring, however, that the California Court of Appeals has previously interpreted this law to require a specific intent to entice the minor into physical sexual contact with the defendant, as opposed to encouraging the minor to, e.g., masturbate alone. People v. Jensen, 114 Cal.App. 4th 224 (App. 6 Dist. 2003).
Who cares? Prof. Shaun had these closing thoughts on People v. Dyke:
The fact that the trial court let this count go forward, and that the jury convicted on it, says some pretty damning stuff about the judicial system here. I get the keen sense that this happens not because of some neutral assessment of whether it's in fact illegal to watch television alongside a 16-year old, but rather because we don't like what the defendant allegedly did here and are eager to punish him however we can.This blog frequently addresses criminal cases in which the defendant clearly committed one or more serious crimes. In such cases, prosecutors regularly reach out for anything in the book to increase the sentence, increase their plea-bargaining leverage, and/or provide a fall-back charge. Not infrequently, they find a statute, or (as here) advance an interpretation of a statute, that could also apply to a significant swath of innocent conduct. I blog on these cases for three reasons: 1) such prosecutorial practices are a misuse of law and the justice system, in violation of the spirit (if not the letter) of the Double Jeopardy Clause; 2) criminal cases involving obvious "bad guys" are one of, if not the most common context in which courts consider potentially inflammatory sex-related topics, such as pornography and BDSM, and provide a window into judges' thinking (and prejudices) about these issues; and 3) the American experience with sodomy laws teaches us that the fact that a law is only ever used to prosecute truly culpable persons doesn't mean that it can't have other harmful effects.
Wednesday, April 22, 2009
The strip-search case: why the Supreme Court needs more women
Dahlia Lithwick has written another piece of brilliant, scathing Supreme Court reportage, on yesterday's oral arguments in Redding v. Safford Unified School District No. 1. The case illustrates why it is that Justice Ginsburg might be feeling "lonely" since the retirement of Justice Sandra Day O'Connor:
When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks")....My incisive legal analysis: ugh.Editorialists and pundits have found much to hate in what happened to Savana Redding. Yet the court today finds much to admire. And even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen. You might think it traumatic that she was forced to strip down to her underclothes and pull her bra and underwear out and shake them in front of two female school employees. No drugs were found. But even those justices lacking a daughter, a niece, or a uterus had access to an amicus brief in this case documenting the fact that student strip searches "can result in serious emotional damage" and that student victims of strip searches "often cannot concentrate in school, and, in many cases, transfer or even drop out." Savana Redding, herself a data point, described the search as "the most humiliating experience" of her life. Then she dropped out of school. And five years later, at age 19, she gets to listen in on oral argument in Porky's 3: The Supreme Court Says "Panties."
...David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"
...Adam Wolf, the ACLU lawyer who represents Redding, explains that "the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl's naked body." Wolf explains that he is arguing for a "two-step framework," wherein schools can use a lower standard to search "backpacks, pencil cases, bookbags" but a higher standard when you "require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area." This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to "change into a swimming suit or your gym clothes," because, "why is this a major thing to say strip down to your underclothes, which children do when they change for gym?"
This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—"what was done in the case … it wasn't just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!" Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.
But Breyer just isn't letting go. "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."
Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: "Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience."
It gets weirder. Wolf claims school administrators should have known better than to suspect that "Savana was currently concealing ibuprofen pills underneath her underpants for other's oral consumption," noting "a certain ick factor to this." The Chief Justice quickly replies that the ick factor doesn't attach when you are talking about "the brassiere as well, which doesn't seem as outlandish as the underpants, right?"
Oh, ick indeed. The search for a bright line rule about the expectations of student privacy has turned into a fight between a bunch of guys who still say "brassiere."
Tuesday, April 21, 2009
Law imitates art? The misplaced fixation on surgical status
Two things have bothered me lately, and it occurred to me that they are connected. One is the difficulty of persuading judges to find for plaintiffs in transgender discrimination cases, particularly in cases involving disputed bathroom use. The other is the overwhelming tendency of pop-culture representations of gender transition to focus on reassignment surgery as the central and defining change, the sine qua non of authentic gender.
As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.
This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.
Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.
Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.
Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.
All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.
As to the latter, I could cite countless examples - including a number of works which I otherwise quite liked, such as Chris Bohjalian's novel Trans-Sister Radio, and the Oscar-nominated film Transamerica. There has been a proliferation of documentaries about trans people in recent years, with most of them reproducing the same medically-focused narrative about the transition process, with surgery as the narrative focal point. Heck, the only two musicals with transgender protagonists both feature titles that refer to the lead character's genitals. More generally, news and entertainment media regularly refer to gender transition reductively as "having a sex change operation," or "preparing for a sex change operation." The terms "pre-op" and "post-op" are thrown around ubiquitously in contexts in which they have no real relevance.
This focus on surgery has been criticized for presenting a distorted view of trans people's experiences. As I've discussed elsewhere, there are any number of reasons -- financial, medical, religious or deeply personal -- why many trans people cannot or choose not to have surgery. Even for those who do, it is often delayed for many years for financial reasons -- insurance coverage for it is rare in the U.S. -- meaning that people lives years and even decades of their lives between a(n otherwise) completed transition and surgery. Perhaps more to the point, surgery is simply not the most important part of the process for most people, even those who eventually have it. After all, in comparison to hormone therapy or other changes, "bottom" surgery makes a less dramatic difference to an individual's overall appearance or experience of their body, and (except in a few delicate situations) makes no difference in an individual's ability to blend in with other members of their (post-transition) gender.
Nevertheless, the dominant discourse on transition says that transition = surgery, and without surgery transition is incomplete or simply has not occurred. This discourse originated in the mid-twentieth century with attempts by both trans people and medical professionals to justify gender transition, against McCarthy-era moral condemnation and disgust, by appealing to society's trust in medical science. (As well as providing reassurance that trans people were not "homosexual." Christine Jorgensen, the first publicly-known transsexual in the US, underwent her highly publicized transition at the height of the 1950s antigay witchunts.) Though since much revised by both trans people and the medical professionals who work with them, this dated and rigid understanding remains overwhelmingly dominant in public perception. What most people know about gender transition comes from surgery-focused pop-culture representations.
Thus, both political and judicial decisionmakers almost invariably start from this ingrained premise. Arguably, pop-culture discourse and legal standards for gender recognition in the context of birth certiciates, drivers' licenses, etc., reinforce one another. Although unspoken, both sources inform decisionmakers in settings that seemingly have nothing to do with legal documentation per se.
Much of the difficulty in workplace discrimination cases, therefore, owes to the fact that employers' demands that restroom use be based on genitals tend to strike judges as so obviously common-sensical that it is very hard to dislodge that notion from their brains. Kastl v. Maricopa County Community College shows the result: uncritical judicial acceptance of justifications by employers that would be obviously flimsy were they not colored by this starting premise.
All of which is to say that representation matter. To criticize a filmmaker for an excessive focus on surgery is no mere aesthetic quibble or personal peeve. It is no surprise that the feminist movement has long devoted considerable attention to cultural criticism as well as more conventional political advocacy. These representations of gender transition in entertainment and news media, as I see it, cumulatively have real, harmful consequences.
Friday, April 17, 2009
Legislative roundup
Obviously, the big legislative news this month comes from Vermont, which became the first state to legalize same-sex marriages without a court order - and over a gubernatorial veto, no less. Much virtual and literal ink has been spilled on this, so I will only comment on the transparent foolishness of Gov. Douglas's justification for his veto. Rather than defend his veto on its merit, Douglas said the legislature shouldn't be spending time on this issue while there are pressing economic and budget matters. They may be logical criticism of the legislature's action, but it is completely illogical as a justification for a veto, which comes only after the legislative effort has been spent, and serves only to set the stage for the legislature to spent more time on an override.
There's lots more to tell. There were big headlines the same week from DC, where the District Council unanimously voted to recognize out-of-district same-sex marraiges, as marriages. When finalized, the measure will of course be subject to an override by Congress, and we will have to wait and see if the Dems can block any such move.
In Nevada, the governor is threatening to veto an impending domestic partnership bill. And in Washington, the legislature has passed an expansion of the existing DP law.
NY Gov. David Paterson has said he will soon introduce marriage equality legislation there. Not clear yet if it can pass the state Senate, which now has a slight Democratic majority. Reproductive rights advocates in New York are also gearing up for the anticipated reintroduction of a Reproductive Health Act, which would codify the right to contraception and abortion New York law, and remove abortion from the state penal code.
On a second vote, the New Hampshire House passed a gender identity antidiscrimination measure last week, by one vote: 188-187. Thus, it appears that the deciding factor in the previous 149-181 "nay" vote was in fact lawmaker turnout, rather than the success of opponents' deceptive messages on bathroom use. That's encouraging.
Earlier this month, North Dakota's Senate rejected by a 2:1 margin a bill that would have purtported to bestow "personhood" on zygotes and embryos. This is yet another defeat for the putative "personhood" movement, but I suspect their aim is less to actually pass legislation than to use these attention-getting bills as opportunities to promote their dressed-up message of full criminalization. Anway, anti-choice groups did get two wins in the state Senate, passing bills that (like one recently passed in Kansas) would require medical facilities to offer ultrasounds before abortions, and (like one upheld by a federal court last year in South Dakota) require doctors to tell patients that abortion terminates a "human life."
In the U.S., private or public insurance coverage for surgery related to gender transition is very seldom available. In Canada and Europe, it's a different story. But in tough economic times, this coverage is, depressingly but unsurprisingly, first on the chopping block. The province of Alberta has now eliminated its public coverage for transition-related surgery. As noted over at Bilerico, this may not be the last word here, since a human rights tribunal in Ontario last year ordered the reinstatement of such coverage there. Blue Cross/Blue Shield of Michigan has also eliminated coverage, citing the need to cut costs. As also pointed out at Bilerico, this may not actually make financial sense in the long-term, since cutting off access to surgery can have its own health care costs down the line.
There's lots more to tell. There were big headlines the same week from DC, where the District Council unanimously voted to recognize out-of-district same-sex marraiges, as marriages. When finalized, the measure will of course be subject to an override by Congress, and we will have to wait and see if the Dems can block any such move.
In Nevada, the governor is threatening to veto an impending domestic partnership bill. And in Washington, the legislature has passed an expansion of the existing DP law.
NY Gov. David Paterson has said he will soon introduce marriage equality legislation there. Not clear yet if it can pass the state Senate, which now has a slight Democratic majority. Reproductive rights advocates in New York are also gearing up for the anticipated reintroduction of a Reproductive Health Act, which would codify the right to contraception and abortion New York law, and remove abortion from the state penal code.
On a second vote, the New Hampshire House passed a gender identity antidiscrimination measure last week, by one vote: 188-187. Thus, it appears that the deciding factor in the previous 149-181 "nay" vote was in fact lawmaker turnout, rather than the success of opponents' deceptive messages on bathroom use. That's encouraging.
Earlier this month, North Dakota's Senate rejected by a 2:1 margin a bill that would have purtported to bestow "personhood" on zygotes and embryos. This is yet another defeat for the putative "personhood" movement, but I suspect their aim is less to actually pass legislation than to use these attention-getting bills as opportunities to promote their dressed-up message of full criminalization. Anway, anti-choice groups did get two wins in the state Senate, passing bills that (like one recently passed in Kansas) would require medical facilities to offer ultrasounds before abortions, and (like one upheld by a federal court last year in South Dakota) require doctors to tell patients that abortion terminates a "human life."
In the U.S., private or public insurance coverage for surgery related to gender transition is very seldom available. In Canada and Europe, it's a different story. But in tough economic times, this coverage is, depressingly but unsurprisingly, first on the chopping block. The province of Alberta has now eliminated its public coverage for transition-related surgery. As noted over at Bilerico, this may not be the last word here, since a human rights tribunal in Ontario last year ordered the reinstatement of such coverage there. Blue Cross/Blue Shield of Michigan has also eliminated coverage, citing the need to cut costs. As also pointed out at Bilerico, this may not actually make financial sense in the long-term, since cutting off access to surgery can have its own health care costs down the line.
Thursday, April 16, 2009
Bathrooms in the courts
My last post dealt with the bogus "issue" of restroom use by trans people in the context of passing civil rights legislation. As NCTE director Mara Keisling recently noted in an interview for Pam's House Blend, that's unfortunately going to be the focus of a lot of work in the next few years. It's also, unfortunately, going to continue to be the focus of some equally if not more difficult work in the courts, in employment discrimination cases. The challenges that "bathroom issues" present in the courts are illustrated by the Ninth Circuit Court of Appeals's recent decision in Kastl v. Maricopa County Community College, 2009 WL 990760 (9th Cir. Apr. 14, 2009) (No. 06-16907; unpublished).
Ms. Kastl was an instructor and student at MCCC in 2000 and 2001, during which time she transitioned from male to female. Following complaints from students about her presents in the women's bathroom, she was instructed that she would be required to use the men's room until she could present proof of having completed genital surgery. (No student ever complained of seeing her genitals.) She was not rehired for the next semester. The case survived a motion to dismiss, but was thrown out on summary judgment (i.e., the court didn't think Kastl had enough evidence to go to trial.)
The Ninth Circuit affirmed. The court recognized that under the law of this and other circuits, discrimination motivated by a transgender (or any other) plaintiff's gender-non-conforming conduct or appearance can constitute illegal sex discrimination. It said that Kastl had presented enough evidence to raise an inference of discrimination. But it also said that the school satisfied its burden of showing a non-discriminatory motive. What the school showed was that students complained about Kastl's presence in the women's room and (in the words of a filing by the school) "expressed concerns regarding their privacy and/or safety." In response, the court said, Kastl had failed to provide sufficient evidence that the school's actions were in fact based on sex-stereotyping discrimination. All this the court said in two paragraphs; both the trial and appellate court opinions give no indication of the actual evidence in the case regarding the school's motivation. The Ninth Circuit added a footnote:
Despite the sparse opinions, this case illustrates why cases involving disputed bathroom use by trans employees are so difficult to win, even when the employer's actions are (at least to this blogger) obviously discriminatory.
Medical sex. In the trial court, Kastl sought to prove that she was in fact medically female. This is an interesting strategy; if it could be proved, it would presumably demonstrate that the employer's bathroom "policy" was utterly baseless and was simply based on discrimination because of Kastl's gender history. But this strategy is also an uphill battle, whether or not the plaintiff has had genital surgery, because it depends on mustering scientific evidence, and persuading the court, on a complex issue - the criteria for determining "medical" sex - that (as I have discussed elsewhere) medical experts disagree on. Whatever the merits of this strategy in general, it was not successful here, and indeed the court was dismissive of Kastl's attempts to dispute her medical sex.
Flimsiness of employe's reason: "privacy and/or safety." The Ninth Circuit panel apparently believed that students' asserted "concerns about their privacy and/or safety" amounted to a legitimate, nondiscriminatory motive. There is no indication of why students thought their privacy or safety might be threatened, and this is not just because the court's opinion is terse: being around a trans person in the bathroom does not affect anyone's privacy or safety, so long as the toilets have stalls, and trans people are not presumed to be dangerous. That this is so is underscored by the school's focus on genital surgery. How would students' privacy or safety be threatened before the plaintiff's surgery but not threatened afterward? The students wouldn't even be able to tell the difference! It is well-established that the prejudices of third party patrons cannot give an employer a defense, even if those prejudices would have real effects on the employer. This nothing more than a case of third-party prejudice, and in the absence of any evidence to substantiate these concerns, the court should have seen right through them. It should have, but it didn't.
Flimsiness II: "liability." In a similar case, the Tenth Circuit held that an employer's fear of liability consituted a legitimate, nondiscriminatory motive. The court acknowledged that the law would be against any offended person who tried to sue the employer; in the only reported case of this sort, a federal appeal courts rejected claims that permitting a trans person to use the same restroom as the plaintiff constited religious and/or sex discrimination and/or harassment. But the Tenth Circuit said it didn't matter whether an employer would actually be liable, only whether the employer's fear of liability was genuine. This, too, is nothing more than dressed-up "customer preference" scenario, where the employer fears economic consequences from a third party's prejudice toward the plaintiff. Again, the right conclusion would be that this is not a legitimate, nondiscriminatory motive, but the court bought it.
Flimsiness III: Ease of accommodation. The Ninth Circuit acknowledged the possibility that there were options other than firing Kastl or forcing her to use the men's room. In many workplaces, it would be easy enough to provide that either the trans employee, or any person not wishing to use the same bathroom as the trans employee, use a single-person bathroom. While the law does not require "reasonable accommodations" in sex cases as it does in disability cases, the availability of an obvious and cost-free alternative would certainly suggest that the employer's stated motive was a pretext. Unfortunately, an accommodation might well be possible but might not be totally obvious and cost-free. For example, in the Tenth Circuit case the plaintiff was a bus driver, and needed to use various public restrooms around town.
Catch-22. The Ninth Circuit's opinion recognizes that, in contrast to the employer's baseless "privacy and/or safety" concerns, Ms. Kastl had very real reasons for avoiding the men's room. The result is that if employers are permitted to adopt genital-based bathroom policies, most trans people will simply be unemployable. Yet courts in these cases typically treat such policies as obvious and natural, and trans employees' objections to them as frivolous. It might well be difficult to prove the danger of harassment or violence in a particular case, especially since trans employees, quite reasonably, will typically face firing before using the bathroom of their birth-assigned gender. It ought to be possible, however, to bring in evidence from outside the case to establish the reasonableness of the employee's fears. However, courts may well insist that this "Catch-22" theory is only valid when it applies to all members of one gender, and that, like employee dress codes, these policies are permissible because they burden men and women equally.
This theory would fit nicely into the disparate impact concept. Even if it were accepted that such policies are not intentionally discriminatory - or, what amounts to the same thing, based on third-party prejudice - they clearly have the effect of making it impossible for most trans folks to do the job without subjecting themselves to intolerable conditions. In a disparate impact claim, the employer must prove that their policy is based on "business necessity" - something that they clearly couldn't do here.This is one illustration of why, even though there is some good case law out there now, a trans-inclusive ENDA is badly needed. As drafted, however, ENDA would not provide for disparate impact claims based on gender identity. And I think courts are unlikely to accept a disparate impact theory here based on sex, for the same reasons that they may be iffy on disparate treatment claims.
In sum, it is easy to explain why, as a matter of law and as a general matter of fact, a case like this ought, theoretically, to be winnable. But courts are all too willing to accept dubious assertions by employers at face value, and all too ready to discount the assertions of trans people. Even when the facts should support the plaintiff, the court's preconceptions may lead it to see those facts in a way that doesn't support the claim. Add to that potential problems of proof and some uncertainties in current case law, and you have some very, very hard cases to win.
Ms. Kastl was an instructor and student at MCCC in 2000 and 2001, during which time she transitioned from male to female. Following complaints from students about her presents in the women's bathroom, she was instructed that she would be required to use the men's room until she could present proof of having completed genital surgery. (No student ever complained of seeing her genitals.) She was not rehired for the next semester. The case survived a motion to dismiss, but was thrown out on summary judgment (i.e., the court didn't think Kastl had enough evidence to go to trial.)
The Ninth Circuit affirmed. The court recognized that under the law of this and other circuits, discrimination motivated by a transgender (or any other) plaintiff's gender-non-conforming conduct or appearance can constitute illegal sex discrimination. It said that Kastl had presented enough evidence to raise an inference of discrimination. But it also said that the school satisfied its burden of showing a non-discriminatory motive. What the school showed was that students complained about Kastl's presence in the women's room and (in the words of a filing by the school) "expressed concerns regarding their privacy and/or safety." In response, the court said, Kastl had failed to provide sufficient evidence that the school's actions were in fact based on sex-stereotyping discrimination. All this the court said in two paragraphs; both the trial and appellate court opinions give no indication of the actual evidence in the case regarding the school's motivation. The Ninth Circuit added a footnote:
We note that the parties do not appear to have considered any type of accommodation that would have permitted Kastl to use a restroom other than those dedicated to men. After all, Kastl identified and presented full-time as female, and she argued to MCCCD that the men's restroom was not only inappropriate for but also potentially dangerous to her.But this observation didn't keep the appeals court from throwing out the case. Both the trial and appellate court decisions say next to nothing about what evidence there was concerning the employer's motive.
Despite the sparse opinions, this case illustrates why cases involving disputed bathroom use by trans employees are so difficult to win, even when the employer's actions are (at least to this blogger) obviously discriminatory.
Medical sex. In the trial court, Kastl sought to prove that she was in fact medically female. This is an interesting strategy; if it could be proved, it would presumably demonstrate that the employer's bathroom "policy" was utterly baseless and was simply based on discrimination because of Kastl's gender history. But this strategy is also an uphill battle, whether or not the plaintiff has had genital surgery, because it depends on mustering scientific evidence, and persuading the court, on a complex issue - the criteria for determining "medical" sex - that (as I have discussed elsewhere) medical experts disagree on. Whatever the merits of this strategy in general, it was not successful here, and indeed the court was dismissive of Kastl's attempts to dispute her medical sex.
Flimsiness of employe's reason: "privacy and/or safety." The Ninth Circuit panel apparently believed that students' asserted "concerns about their privacy and/or safety" amounted to a legitimate, nondiscriminatory motive. There is no indication of why students thought their privacy or safety might be threatened, and this is not just because the court's opinion is terse: being around a trans person in the bathroom does not affect anyone's privacy or safety, so long as the toilets have stalls, and trans people are not presumed to be dangerous. That this is so is underscored by the school's focus on genital surgery. How would students' privacy or safety be threatened before the plaintiff's surgery but not threatened afterward? The students wouldn't even be able to tell the difference! It is well-established that the prejudices of third party patrons cannot give an employer a defense, even if those prejudices would have real effects on the employer. This nothing more than a case of third-party prejudice, and in the absence of any evidence to substantiate these concerns, the court should have seen right through them. It should have, but it didn't.
Flimsiness II: "liability." In a similar case, the Tenth Circuit held that an employer's fear of liability consituted a legitimate, nondiscriminatory motive. The court acknowledged that the law would be against any offended person who tried to sue the employer; in the only reported case of this sort, a federal appeal courts rejected claims that permitting a trans person to use the same restroom as the plaintiff constited religious and/or sex discrimination and/or harassment. But the Tenth Circuit said it didn't matter whether an employer would actually be liable, only whether the employer's fear of liability was genuine. This, too, is nothing more than dressed-up "customer preference" scenario, where the employer fears economic consequences from a third party's prejudice toward the plaintiff. Again, the right conclusion would be that this is not a legitimate, nondiscriminatory motive, but the court bought it.
Flimsiness III: Ease of accommodation. The Ninth Circuit acknowledged the possibility that there were options other than firing Kastl or forcing her to use the men's room. In many workplaces, it would be easy enough to provide that either the trans employee, or any person not wishing to use the same bathroom as the trans employee, use a single-person bathroom. While the law does not require "reasonable accommodations" in sex cases as it does in disability cases, the availability of an obvious and cost-free alternative would certainly suggest that the employer's stated motive was a pretext. Unfortunately, an accommodation might well be possible but might not be totally obvious and cost-free. For example, in the Tenth Circuit case the plaintiff was a bus driver, and needed to use various public restrooms around town.
Catch-22. The Ninth Circuit's opinion recognizes that, in contrast to the employer's baseless "privacy and/or safety" concerns, Ms. Kastl had very real reasons for avoiding the men's room. The result is that if employers are permitted to adopt genital-based bathroom policies, most trans people will simply be unemployable. Yet courts in these cases typically treat such policies as obvious and natural, and trans employees' objections to them as frivolous. It might well be difficult to prove the danger of harassment or violence in a particular case, especially since trans employees, quite reasonably, will typically face firing before using the bathroom of their birth-assigned gender. It ought to be possible, however, to bring in evidence from outside the case to establish the reasonableness of the employee's fears. However, courts may well insist that this "Catch-22" theory is only valid when it applies to all members of one gender, and that, like employee dress codes, these policies are permissible because they burden men and women equally.
This theory would fit nicely into the disparate impact concept. Even if it were accepted that such policies are not intentionally discriminatory - or, what amounts to the same thing, based on third-party prejudice - they clearly have the effect of making it impossible for most trans folks to do the job without subjecting themselves to intolerable conditions. In a disparate impact claim, the employer must prove that their policy is based on "business necessity" - something that they clearly couldn't do here.
In sum, it is easy to explain why, as a matter of law and as a general matter of fact, a case like this ought, theoretically, to be winnable. But courts are all too willing to accept dubious assertions by employers at face value, and all too ready to discount the assertions of trans people. Even when the facts should support the plaintiff, the court's preconceptions may lead it to see those facts in a way that doesn't support the claim. Add to that potential problems of proof and some uncertainties in current case law, and you have some very, very hard cases to win.
Wednesday, April 8, 2009
The bathroom canard lives on
The incessant refrain of those who insist that anti-transgender discrimination should remain legal is "bathrooms, bathrooms, bathrooms." Prohibiting discrimination in jobs, housing and public accommodations is, to hear them tell it, an assault on the privacy and safety of women in children in loos everywhere. Perhaps the most remarkable thing about this parade-of-horribles argument is that it keeps popping up, and seemingly keeps working, despite the fact that more than a dozen states and a hundred localities have proven it false.
The bathroom canard was the main argument of the campaign to repeal my Maryland county's antidiscrimination law last year, before the state's high court ruled that the issue did not belong on the ballot. A similar campaign, based essentially on a "bathrooms" message, did go to the ballot in Gainesville, FL last month, and lost 58%-42%.
But while Gainesville voters rejected this tactic, legislators in New Hampshire apparently bought it, voting 181-149 in the state House to kill an antidiscrimination bill. This was the very same week that the House there passed a marriage equality bill 186-179. (Comparing those numbers shows that the margin by which the antidiscrimination bill failed was smaller than the number of lawmakers who cast a vote on marriage but didn't cast a vote at all on antidiscrimination! That certainly tells you something .) Following this success for proponents of discrimination, the same tactic is now being pushed heavily in Connecticut and Massachusetts.
Of course, this is part of a bigger picture of opponents of LGBT equality seeking to frame equal protection of the law as somehow being a threat to individual rights; the frequent arguments that marriage equality threatens the religious liberty of churches that reject same-sex love are just as dishonest. But they're also easier to know how to respond to - as, for example, the Iowa Supreme Court so eloquently did in the closing paragraphs of its recent marriage decision.
But I think it's harder to know what to say to an uninformed audience in response to the bathroom canard, because from the point of view of people who don't understand or accept trans identities, nondiscrimination ordinances would permit "men" to use the ladies' room and vice versa. Moreover, definitional questions about who "belongs" and who doesn't really seem to bother people. Montgomery County legislators tried to dampen these objections by specifying that the law would not apply to places that were "distinctly private and personal," opponents said this was too vague and implied that nothing short of providing carte blanche for discrimination in restroom use would be satisfactory.
Here are some talking points on the issue of from Transgender Law and Policy Institute, similar ones from the Sylvia Rivera Law Project that address these questions. They rightly focus, I think, on a handful of points:
The bathroom canard was the main argument of the campaign to repeal my Maryland county's antidiscrimination law last year, before the state's high court ruled that the issue did not belong on the ballot. A similar campaign, based essentially on a "bathrooms" message, did go to the ballot in Gainesville, FL last month, and lost 58%-42%.
But while Gainesville voters rejected this tactic, legislators in New Hampshire apparently bought it, voting 181-149 in the state House to kill an antidiscrimination bill. This was the very same week that the House there passed a marriage equality bill 186-179. (Comparing those numbers shows that the margin by which the antidiscrimination bill failed was smaller than the number of lawmakers who cast a vote on marriage but didn't cast a vote at all on antidiscrimination! That certainly tells you something .) Following this success for proponents of discrimination, the same tactic is now being pushed heavily in Connecticut and Massachusetts.
Of course, this is part of a bigger picture of opponents of LGBT equality seeking to frame equal protection of the law as somehow being a threat to individual rights; the frequent arguments that marriage equality threatens the religious liberty of churches that reject same-sex love are just as dishonest. But they're also easier to know how to respond to - as, for example, the Iowa Supreme Court so eloquently did in the closing paragraphs of its recent marriage decision.
But I think it's harder to know what to say to an uninformed audience in response to the bathroom canard, because from the point of view of people who don't understand or accept trans identities, nondiscrimination ordinances would permit "men" to use the ladies' room and vice versa. Moreover, definitional questions about who "belongs" and who doesn't really seem to bother people. Montgomery County legislators tried to dampen these objections by specifying that the law would not apply to places that were "distinctly private and personal," opponents said this was too vague and implied that nothing short of providing carte blanche for discrimination in restroom use would be satisfactory.
Here are some talking points on the issue of from Transgender Law and Policy Institute, similar ones from the Sylvia Rivera Law Project that address these questions. They rightly focus, I think, on a handful of points:
- All transgender people have to use the bathroom somewhere.
- Using bathrooms consistent with their birth-assigned gender just does not make sense for trans people: it would often be more upsetting for everyone involved, and would put the trans person at risk of harassment or violence.
- People who enter a bathroom with the intent to assault others, or who stalk or harass others in bathrooms, are and will remain punishable, regardless of gender.
- Trans and non-trans people are not going to be watching each other potty: bathroom stalls have locking doors for a reason.
- There is no evidence of threats to safety in privacy in the many jurisdictions that have adopted these laws.
Friday, April 3, 2009
Why Iowa Matters
Today the Iowa Supreme Court invalidated that state's ban on civil marriage for same-sex couples. The lengthy opinion is available here (PDF). The law profs and other queer bloggers in my blogroll will undoubtedly have many interesting things to say about this decision. Here, in a nutshell, is why I think this decision is so important:
Update: I doubt I can improve upon the great summary and discussion of the opinion over at Leonard Link.
- Of the several courts that have ruled for relationship recognition for same-sex couples, this is the first unanimous ruling.
- This is also the first such ruling from a court in a non-coastal state.
- The ruling clearly rejects any substitute for full equality, such as civil unions.
- Much as in Massachusetts, the Iowa Constitution is difficult to amend; it would take at least three years to do so.
- The Court's opinion is very, very thorough, smart and readable; it does an especially good job of dismantling the state's arguments about "immutability" and "political powerlessness" (which, as I have discussed here, often trip courts up). Like the decisions of the Connecticut and California courts, this one provides an invaluable road map for other courts addressing this and many related issues. At the same time, the decision reached only as far as it needed to, ruling on Equal Protection grounds alone and sorting out some of the thorny tangles of Equal Protection doctrine while avoiding others when it was clear that, however they were resolved, the Iowa law would fall.
Update: I doubt I can improve upon the great summary and discussion of the opinion over at Leonard Link.
Thursday, April 2, 2009
Maryland Senate scares UM into canceling film screening
A planned screening of the high-budget porn epic Pirates II at the University of Maryland-College Park this weekend has been canceled after state Senate leaders threatened to cut public funding:
The screening of the multiple AVN Award-winning blockbuster was approved by a student programming committee for a Saturday midnight show. The publicity led to a state Senate debate, according to the Baltimore Sun.
"That's really not what Maryland residents send their young students to college campus for, to view pornography,"said Senate President Thomas V. Mike Miller.
Although Miller called the screening a misuse of tax dollars at the state university, Digital Playground actually offered the film to students for free. The event would have cost no state or student funds.
"This incident in Baltimore is very sad, but we are thrilled that our film has sparked a very important debate about censorship," Adella told AVN. "The Pirates II screening was unanimously approved by the student programming committee, and there was no legitimate reason to cancel the event."
Nonetheless, Sen. Andrew P. Harris suggested state budget cuts to deny funding to any higher education institution screening a porn film outside of an official academic course.
Miller backed the proposal. With millions in state funds hanging in the balance, UM President C.M. Mote, Jr. caved in and squashed the planned event after a closed-door debate between school administrators and state Senate officials.
It's safe to assume that the state Senate spent many times more public money in getting this screening stopped than would have been spent on the screening.
No word on whether students plan to sue the school for its cowardly cave-in. If the state actually managed to pass such a funding restriction, it would undoubtedly be invalidated as a naked content-based restriction. Off the top of my head, I see no reason why the University president's decision to cancel the showing should not be similarly unconstitutional.
Mass. lawmakers want to criminalize elder porn
A couple of geniuses in Massachusetts have proposed to extend that state's criminal child pornography to adults with disabilities and everyone over 60. I say it a lot here, and I'll say it again: No, really.
The Legal Satyricon has a fine post, so I won't belabor the point here:
The Legal Satyricon has a fine post, so I won't belabor the point here:
Mass law defines an “elder” as anyone over the age of 60 (that includes Sylvester Stallone) and a “person with a disability as “a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection.”
There are nightmare scenarios where people, due to mental infirmity, might not be able to give truly informed consent — and in those cases, I too would support measures to punish those who might exploit them. Illinois, for example, reportedly prohibits porn production involving the “severely mentally retarded.” Set aside the fact that we don’t call the mentally disabled “retarded” anymore, and such a law makes perfect sense. I am sure that, more likely than not, someone in such condition would lack the mental capacity to give their consent - and thus we should be jealously protective of their dignity and personal autonomy. C.f. New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech).
But, Reinstein’s law goes way too far.
Believe it or not, there is a market for “elder porn,” as well as “disability porn,” and those markets are served by consenting, healthy, elderly and disabled models. Naturally, some of this market caters to fetishists, but before you start saying “ewwww,” consider that there also happen to be many healthy members of society who don’t believe that sexual desirability ends at 60, nor at any other age, and it’s not just big in Japan. Just as “elderly,” is not necessarily inconsistent with “sexy,” (Sofia Loren and Sylvester Stallone are both over 60) neither is “physically disabled” necessarily inconsistent with “sexiness.” Just ask this wheelchair-bound porn actress.
One of the most utopian things about the internet is that anyone, and I mean anyone, can (no matter what they look like) find a porn site that features models that look just like them. ...
...Reinstein’s law is not limited to commercial porn. In fact, it doesn’t have to be porn at all - since I’d venture to guess that the elderly women who posed nude for this calendar don’t consider it to be “pornographic” or “perverted.”
The worst part is that Rep. Reinstein’s law equates nude photos of the elderly or disabled with child pornography: You can’t make it for any reason whatsoever, not even for private enjoyment, no exceptions, no nothing.
Presumably - hopefully - this one won't get far. If it does though, I suppose we'll see senior citizens arrested for taking their own boudoir pictures too.
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