Gender, "deception" and the law, pt. 3

This is the third post in a series inspired by the Angie Zapata murder trial in Colorado, and in particularly by the suggestion by some people that transgender people who are victims of hate crimes by sexual partners were themselves guilty of "deception." In the first post, I sketched out the traditional narrow legal interpretation of the kind of deception that can vitiate sexual consent. In the second post, I explored possible extensions of this concept and argued against them. This post specifically considers the question of disclosure by transgender people of their sexual anatomy and/or gender history to sexual partners.

Actual gender "deception" cases. A recent article by an Israeli law professor identified five cases internationally in which transgender individuals have been prosecuted for failing to disclose their gender history to sexual partners: two cases in the U.S., one in the U.K., and two in Israel. See Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harvard Journal of Law & Gender 165 (2009).

• In the United Kingdom in 1991, Jimmy Saunders was charged with indecent assault on the basis that he concealed the fact that he was born female from two sexual partners. He was convicted, though the Court of Appeals reduced his sentence.
  
• In Colorado in 1995 - the same state where the Zapata murder took place - Sean O'Neill was charged with false impersonation and sexual assault on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to lesser charges.
• In 1997 in Washington state, Christopher Wheatley was charged with sexual assault on the basis that he concealed the fact that he was born female from two sexual partners. He plead guilty.
• In Haifa, Israel in 2003, Hen Alkobi was charged with sexual assault and "impersonation of another person" on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to the sexual assault charge, contested the impersonation charge, and was convicted on both charges.
• In 2007, another transgender man in Israel was charged with statutory rape as well as "indecedent acts" on the basis that he fraudulently obtained consent from a sexual partner by concealing the fact that he was born female. (My only source for this case is Gross, who does not give a name and says the case was ongoing as of early this year.)

I would be very interested to find out more about these cases than is available in readily-accessible, English-language sources, particularly the U.K. and recent Israeli cases.

Notably, all of these cases involved male-identified transgender persons who had sexual relationships with underage women (and in all but one case, with multiple underage partners). It thus appears that it is peculiarly trans men who partner with women who are in danger of being prosecuted for dating without disclosing (whereas women who partner with men are in more danger of being killed by their partners). Additionally, each of these cases apparently could have been prosecuted solely on charges of statutory rape. Thus, these are not cases of individuals being singled out for prosecution based on failure to disclose, but rather cases that would have been prosecuted regardless based on the involvement of minors - though it is clear that prosecutors and/or judges in these cases did have particular reactions of disgust to these gender-variant defendants, and to their involvement of seemingly unwitting young women in what these authorities no doubt regarded as homosexuality.

As far as I can tell, in only one of these cases -- the U.K. case -- did a court rule that failure to disclose one's anatomy or gender history vitiates consent and creates liability for sexual assault. In the other cases, it appears the defendants simply decided to strike a deal, which made sense given that they were probably liable for statutory rape regardless. The latter cases provide no support for the legal theory that these circumstances negate consent. Even in the Saunders case, it's not clear from secondary sources to what extent this aspect of the prosecution was challenged, or even if the assault convictions themselves (rather than just the sentence) were appealed.

U.K. law today. In 2000, the Law Commission of the United Kingdom specifically recommended that the U.K. Sex Offences Act not be interpreted to treat a failure to disclose transgender status as deception that vitiates consent. The Commission reasoned that this would amount to "the creation of a special rule for transsexuals," and accordingly would likely violate the European Convention on Human Rights, which prohibits discrimination against trans people and guarantees the right to expression and recognition of a person's gender identity. (While the Commission stated this recommendation only in terms of individuals who had undergone sex reassignment surgery, it would probably take a different view now that, under the Gender Recognition Act, the U.K. permits change of legal gender in the absence of surgery.)

Regardless, in 2003 the U.K. revised its sexual offenses law, and narrowed the language concerning deception. Following the traditional approach of American courts, the current language covers only situations of deception about "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant." Thus, regardless of the Saunders case, it appears that UK law today would not treat failure to disclose anatomy or gender history as rape or indecent assault.

Trans people are not liars. Consider why a transgender person would hesitate disclose their sexual anatomy or gender history to an actual or potential sexual partner. Trans people are not sexual predators looking for unsuspecting victims. They live in a society where their gender identity and expression are not accepted as authentic by many, perhaps most people around them - indeed, where that identity and expression are viewed as mere pretense. They live in a society where fear and loathing of gender variance and homosexuality are intense. These fears are linked by failure to understand or accept trans identities, and manifest most strongly as fears of sexual pollution. These facts are particularly salient for trans people who are young, are just beginning or have recently made a gender transition, and who live in rural or socially conservative areas. Add to this the psychic distress, embarassment and extreme shyness many trans people experience regarding aspects of their sexual anatomy and gender history. Being rejected by a partner who does not accept their gender identity is a painful prospect - as is seeking out partners who will desire them precisely because of not accepting their gender identity.

Given this context, disclosure to potential partners is fraught on all sides for many trans people. The partner who will both accept their identity and still desire them will be rare - depending on geography and other factors, perhaps very rare. At the same time, by not disclosing they are not lying: they are simply living their lives and presenting their authentic gender, as they do in other social relationships. And once an interpersonal connection exists, the prospect of coming out can be frightening, and appear very much easier to postpone or avoid.

Trans people are no more liars when they do not disclose these matters to potential partners than they are liars by simply living their lives. This is who they are. Of course, in a long-term relationship, tiptoeing around the personal details will be difficult and probably unhealthy for the relationship. For this reason, and in response to very real fears of violence, trans people usually do disclose to sexual partners, especially when looking for a lasting romantic relationship. While I have little sympathey for other people's anxieties about being sexually polluted by a sexual partner with the "wrong" body parts, it's never desirable to risk distress to others. But I find it difficult to judge morally, and repulsive to punish criminally, the choice of some individuals, particularly in casual encounters or at the beginning of a relationship, not to come out.

Gender, "deception" and the law, pt. 1

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.

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.

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.

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:

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. 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.

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:

• 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.
  

One wonders how this is going to play out in Congress when a trans-inclusive ENDA is finally introduced. The Alliance Defense Fund's token witness at the historic first House hearing on anti-trans discrimination last year pushed the bathroom line, but I hold out at least some hope that moderate members of Congress can be convinced not to take these objections seriously.

TSA wants to know your gender

Late last year, the Transportation Security Administration finalized regulations for its soon-to-be-launched "Secure Flight" program, intended to streamling the vetting of passengers and eliminate false matches with its watch list for terror suspects. Under the program, TSA rather than airlines will do the matching, but airlines will be required to obtain and pass along a new set of information from passengers, including their full name, date of birth, and gender. Privacy groups, naturally, oppose the program, which TSA has declared exempt from the federal Privacy Act (PDF). Transgender individuals are also understandably worried by any suggestion of collecting and "matching" gender information.

It's important to note that in this case the purpose is not to match the individual's declared gender against, say, their own passport or birth certificate, but instead to match it against TSA'a watch list for terror suspects. In the new federal rules for Secure Flight (PDF), TSA explains why it is asking about gender:

Many names are gender neutral. Additionally, names not derived from the Latin alphabet, when translated into English, do not generally denote gender. Providing information on gender will reduce the number of false positive watch list matches, because the information will distinguish persons who have the same or similar name. Consequently, TSA is including gender as a required element of the SFPD, which covered aircraft operators must request from individuals and which individuals must provide to the covered aircraft operator.

Thus, TSA has no reason to care about your gender as such - it wants to quickly and efficiently tell whether you might be the same "Lee Anderson" or "Alex Parker" as the one on its list. In its explanation of the program for travel agents (PDF), TSA says that "Aircraft operators will collect gender based on the declaration of the individual making the booking." Thus, according to the way the program is supposed to work, they are just comparing the passenger's declaration to the watch list.

In practice, it's not likely to be that simple. As the Human Rights Campaign noted in its opposition to the proposed regulations (PDF), it's not clear whether enhanced screening of an individual will, in practice, result if airline staff happen to notice a discrepancy with the passenger's identity documents. Airlines may feel it's simply the right thing to do, because gender discrepancies are viewed as suspicious - and the regulations give them authority to decide that. Likewise if an individual declines to make a declaration about gender. Moreover, the regulations provide for hefty fines for those making a false statement about any required data, including gender. How will it be decided if someone's declaration regarding their gender is "false"? Even if no transgender folks are ever fined, they have reason to fear the process.

While TSA's makes a logical argument that gender data would be helpful to them in streamlining the process, they haven't and can't make the case that it's necessary. If this requirement helps prevent harassment and inconvenience for some travelers by eliminating erroneous matches, it will simultaneously cause the same and potentially even worse problems for transgender travellers.

The Obama administration wasn't in on the process of writing these rules, which were finalized last October. It's not clear if these are among the regulations the administration is reviewing and may reverse, but TSA appears set to go ahead with rollout of the program.

Australian commission releases amazing report on gender diversity

As I documented in my article "Against the Surgical Requirement for Change of Legal Sex," Australia has in some respects been a global leader on transgender rights. A 2001 Australian Family Court decision is one of the leading cases on legal recognition of gender transition. In 2004, that court favored access to puberty-delaying hormone treatment for trans adolescents, and called into question the wisdom of requiring reassignment surgery as a prerequisite for legal recognition.

Yet in some ways Australian law is still strict when it comes to gender. Throughout the country, changing your sex on government documents is only possible if you are unmarried and have had reassignment surgery. Now the Australian Human Rights Commission has released a fantastic report entitled Sex Files: The legal recognition of sex in documents and government records. The Commission consulted with trans advocates and individuals through meetings, written submissions and a special blog. It arrived at the following recommendations:

1. Access to the system for having sex legally recognised to accord with sex
identity should be broadened. Specifically,

• marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex

• the definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex

• the evidentiary requirements for the legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex
• the special needs of children and young people who wish to amend their documents and records should be considered

• a person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records.
  

2. The process for amending documents and records to legally recognise sex
identity should be streamlined and user-friendly. Specifically,

• information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly

• documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex

• laws and processes for the legal recognition of sex should use empowering terminology

• where possible, sex or gender should be removed from government forms and documents
• the federal government should consider the development of national guidelines concerning the collection of sex and gender information from individuals.

• 
  

The report correctly notes that eliminating the surgical and marital-status restrictions would simply reflect the reality of people's daily lives. Notably, the Commission is agnostic on whether this would conflict with the current ban on same-sex marriage in Australia, but points out that it would only affect a small number of people who regardless are already legally married and living as same-sex couples as far as they and the general public are concerned.

Perhaps even more remarkable is the reccomendation that individuals be able to have their sex listed as unspecified. Australia is already the first nation to permit an X in lieu of an M or F on passports, but currently this is only for intersex individuals. Under the Commission's proposal, this would be a matter of individual choice, without the need for medical or other evidence.

I have no sense of whether the current Labor government in Australia is likely to implement any of these recommendations, but the report itself is a remarkable accomplishment.

H/t Questioning Transphobia

Trans murder trial faces hurdle; media makes a sideshow of pronouns

A Colorado man is set to go on trial next month for the murder of 18-year-old Angie Zapata - though that trial is now facing a potentially serious snag after the judge ordered the defendant's confession thrown out because of overreaching by police. The local Greeley Tribune has covered the story extensively; the quality of their coverage has been mixed. (Compare this to a very professional and respectful profile of the case by ABC News.) Today they an unfortunately sensational article devoted to the use of pronouns in the case.

All of this is quite beside the point of this case, a tragedy shockingly similar to the murder of Gwen Araujo in California in 2002. But the issue is not without some news value, if not, as the paper's approach suggest, simply because it's "odd." As National Center for Transgender Equality director Mara Keisling hints in the article, the contestation of trans identities themselves is invariably a strong undercurrent in these cases, and here as elsewhere the defense has to some extent tried to dehumanize the victim by invalidating her identity. Even as the prosecution and defense are contesting the guilt of the accused, they are also, with each reference to the victim, contesting who she was. While the article suggests that the court may address this linguistic issue before trial, I expect this will not be the subject of any ruling; the lawyers will just keep using their contrasting language.

Unusually, the article makes a point of its own journalistic conventions by pointing out that the AP stylebook directs reporters to use language consistent with individuals' gender identity and expression. Many reporters don't know that this guidance exists or choose not to follow it, and I have periodically taken it upon myself to point it out in letters to the editor.

Another sign of change in Argentina

This one has been making the blog rounds and is not law-related, but I just couldn't resist. I recently noted that Argentina is lifting its ban on out gay and lesbian members in the military, as is the Philippines. Here's another sign that Argentina, like Latin America generally, is seeing leaps and bounds of progress in LGBT activism and acceptance. There's a long way to go for trans people in Argentina and neighboring countries, but it's a pretty big deal when a bank uses a message of trans acceptance to advertise itself:



I can't imagine any financial institution in the U.S. doing a similar ad. In fact, I can't really imagine any major corporation selling itself with this kind of message of inclusion. Not only that, this ad is a thousand times better than most depictions of trans people in the media anywhere. Instead of treating a trans person like a spectacle or a joke, and making the fact of her gender history a laugh line or a dramatic reveal, here we see it treating in a matter-of-fact, unsensational way. Indeed, the story isn't that this woman is trans, but that her neighbor is sorry for making it a big deal. Depicting a trans woman as an apparently successful business owner is just icing. Yes, as one blogger put it, Banco Provincial is "Pro-Transgendered People, Pro-Little Old Men."

If only getting a loan made people rethink their prejudices in real life!

Miscellaneous updates: LGBT equality abroad

hunter of justice says there's "a bona fide trend underway" - not just of lgbt rights activism and advances in Latin America, but of North American attention to those struggles, which have been underway for years now.

TransGriot has recently posted about efforts and advances for transgender equality in Korea, China and the Middle East.

Bilerico bloggers note that the U.S. has made an about-face on a United Nations resolution condemning sexual orientation discrimination, and that gay-affirming speeches at the Oscars were censored in international broadcasts.

Illinois refusing to recognize gender transitions

Not all of them - but a lot of them. Like most states (but not all - no thanks to you, Ohio, Idaho and Tennessee), Illinois has a law that entitles individuals to an amended birth certificate following gender confirmation surgery. I have argued elsewhere that this surgical requirement is unnecessary and unjust, because it imposes serious hardships on a large number of otherwise eligible individuals. However, requiring proof of surgery is presently the law in most places (with the United Kingdom and Spain being notable exceptions).

Well, the folks at the Illinois Department of Vital Statistics have found a way to deny birth certificates to even more people. Contrary to decades of prior practice, they've decided that you can only get an amended certificate if your surgery was performed in the United States. Two Illinois women, represented by the ACLU, are suing to change that policy.

See, due to the immense cost and other practical reasons, a very large proportion of Americans go abroad for gender confirmation surgery, with the largest number of them going to Thailand. By denying new certificates to folks in their situation, the Department can take the already limited number of transgender people who qualify under the state law and cut it about it half. The plaintiffs in the lawsuit, Victoria Kirk and Karissa Rothkopf, had their procedures performed and certified by a well-known Thai surgeon. Their legal arguments are threefold:

1. The Department is twisting the statute, which refers to physicians licensed in Illinois or "any other state." "State" is often used to include foreign nations, and this is how the law has been interpreted for decades. This makes perfect sense, since Illinois's law is the oldest in the nation, and when it was adopted in the 1950s, these procedures were not available in the United States.
2. The Department is drawing an arbitrary line between applicants treated inside and outside the U.S., thereby violating the Equal Protection Clause. The Department simply has no rational reason for discriminating in this way. Moreover, once an individual has surgery abroad, it's not as though they can do it again in the U.S. - they are stuck, for life, with the wrong identification because their physician was in the wrong country.
   
3. By essentially dictating where individuals may have their procedures performed, the Department is impermissibly interfering with individuals' right to private medical decision-making.

All these arguments strike me as relatively strong ones, particularly given the long-standing prior practice of the state, which sharply undermines any contention that the current policy is necessary. Notably, the suit does not assert a constitutional right to legal recognition of gender change per se. Such a claim is not necessary to challenge this discriminatory policy, and - although there are very strong arguments to support such a right - it will have to wait for another day and a better vehicle than this one.

Best of luck to Ms. Kirk and Ms. Rothkopf, and kudos to the Illinois ACLU.

Suspicion, pronouns, and transgender litigants

Ignorance, indifference and hostility with regard to gender identity issues is often on display in judicial opinions. Nevertheless, even in decisions that substantively disrespect, disregard and repudiate the gender identities of trans people, judges nowadays use respectful pronouns more often than not. Many judges seem to subscribe to the ethic that it is not important to respect trans and queer people, only to treat them politely. This is abominable, but one can at least understand it.

And then sometimes things just don't make sense. Witness the Michigan Court of Appeals ruling in People v. Rowe, 2009 WL 81282 (Jan. 13, 2008). This is a criminal appeal by a transgender woman who was in the business of "erotic massage," and was in an altercation with a client who, she alleged, demanded sex from her and groped her. The client ended up with with a vase and, he claimed, short about eighty bucks. The masseusse was convicted of armed robbery (with a vase), and the appeals court upheld her conviction despite the trial court's refusal to give a jury instruction on self-defense.

The appeals court's legal analysis seems not unreasonable, but one wonders what was actually going on here. Given that we have an altercation between a male client and a transgender sex worker, one can imagine the suspicion with which the defendant was viewed by the police, the trial judge, and the jury. (The moreso, perhaps, when the client claimed that he made the rendezvous without having any idea that the woman was trans. This seems unlikely; trans sex workers typically are very explicit about this, because to do otherwise would be bad for business and risk their safety.) But it's very difficult to know what really went on from the court's opinion.

At any event, the court's pronoun usage veers back and fourth throughout the opinion. It begins: "Defendant appeals as of right his jury trial conviction of armed robbery." In the next paragraph, the court says: "During the fight, allegedly the complainant dragged the defendant on the ground by her long hair." In the next paragraph, we're back to his: "Defendant's sole argument on appeal is that the trial court's refusal to give a self-defense jury instruction was ...a deprivation of his Constitutional right to a fair trial." A little later, we're back to her, but the court also uses "women" in scare-quotes to describe the defendant and another trans woman who was drawn into the altercation. The only method to this is that the court uses her when describing the facts and his when describing defendant's legal arguments (suggesting, perhaps, that the defendant's social identity is different from her legal identity). This is all the more infuriating in an opinion signed "Per Curiam," i.e. by the whole three-judge panel rather than by one of its members. Did their clerks just draft different sections and cut and paste them together?

Increased sentence for targeting trans prisoner

In White v. U.S., the D.C. Court of Appeals affirmed a sentencing enhancement for a prison guard who physically and sexually assaulted a transgender prisoner. The sentencing judge reasoned that the prisoner's trangender status constituted a "reduced physical capacity" under the D.C. sentencing guidelines, thereby meriting the tougher sentence. The appeals court said it would not decide whether trangender status is actually a form of "reduced physical capacity," because the D.C. guidelines are purely advisory, and it doesn't really matter whether judges interpret them correctly in a given case. The court nevertheless upheld the enhancement:

As the trial judge explained, White's sentence was intended to reflect his victim's particular vulnerability as a transgender inmate in an all-male prison unit and, we are satisfied, appropriately reflects what the government's evidence showed was the non-consensual nature of the encounter.

While I'm generally predisposed to favor more lenient sentencing, this strikes me as appropriate. "Reduced physical capacity" is a real stretch, since trans people aren't physically impaired in any way by virtue of being trans. But trans people are certainly especially vulnerable to abuse in prisons, especially given the dominant practice in the U.S. of housing inmates on the basis of their birth sex. And when a prison guard exploits that vulnerability, a sentencing enhancement may serve to deter such exploitation in the future.

Putting an end to trans murders

My indignation at the passage of Prop 8 pales in comparison to my outrage at two more murders of transgender women. From the Washington Blade:

Allyson Robinson, an associate director at HRC, said that she doesn’t think it’s alarmist to use the word “epidemic” for the violence that has been occurring against transgender people.

Robinson said that at least 15 transgender people have been killed this year because of their gender identity.

This epidemic should be at the top of the LGBT community's, and the broader civil rights community's, agenda. State and federal hate crimes laws would be a nice symbolic gesture, but are not likely to have a lot of practical effect. Antidiscrimination laws will help make it possible for more trans people to find safe jobs and housing. But we also need more and better social services and health care for trans people. We need policies and education to ensure that health care providers, police and prisons treat trans people with dignity and respect. We need to secure coverage for transition-related care under Medicaid and private insurance.

Calif. court finds for abused trans prisoner

Abuse of trans people in jails and prisons - either by prison staff, or by other inmates because of the neglect of prison staff - is rampant, and yet courts typically rejects suits by trans prisoners. Arthur Leonard reports on a happy exception in a very unhappy case. The plaintiff, a trans woman placed in a male prison, suffered repeated threats, assaults, and rapes - including by her cellmate - before prison officials finally responded to her complaints. A California appeals court rejected a claim based on her constitutional right to be free from cruel and unusual punishment - the standard for such claims based on neglect is very high, and notably it was originally set out by the Supreme Court in rejecting similar claims by an incarcerated trans woman. But, the court here said that the plaintiff could sue under the basic state law of negligence.

In this case, [the judge] noted with some surprise that California courts had never previously addressed the question whether the state’s tort law recognized a "special relationship" between inmates and jailers on which to ground a duty to protect. Generally, tort law imposes no duty on an individual to protect another individual from harm, but such a duty can be found if there is a special relationship such that the law will impose responsibility on an individual for the protection of another. Such a special relationship can be found if an individual has control over the environment of the other, and the other is particularly vulnerable to harm.

The court found that the situation of an inmate fit squarely within this description, which can be found in decisions by the courts of many other states and has been described in leading torts treatises by respected scholars. An inmate has no control over his environment, which is controlled by the jailer, and is vulnerable because he is not allowed to have weapons or any lawful means to protect himself against attack within the prison.

As Leonard notes, the state would be very wise to settle this case.

NYT covers trans voting challenges; blows it

I was going to write about the Nov. 4 New York Times article on voting difficulties faced by transgender voters, but Alex Blaze at Bilerico pretty much said it:

There are serious issues for many transgender people when it comes to voting. Their name might have changed since registering to vote, states with stringent photo ID laws (like Indiana) can pose a problem for trans folk whose gender expression doesn't match their drivers' license, and plain old transphobia of some poll workers might intimidate transgender people who have a right to cast a vote.

But you wouldn't know that from the article. Someone who's unfamiliar with the topic would probably think that transwomen are just more concerned with getting their hair done.

It didn't look like Ms. Carver would cast a vote this election, which was just as well to her because she was headed out for the evening and had a scarf around her head and large hoop earrings in her hair and tight clothes on her tall slim body. The official told Mr. Braxton that Ms. Carver could apply for a provisional ballot or even try going before a judge before the polls closed at 9 p.m., to try to get on the ballot.[...]

"That gives you an idea of her priorities," Father Braxton said, shaking his head. "She wanted to get her hair done."

I'm sure there were plenty of transwomen who wanted to vote in New York City who could have been profiled in this article. Or the Times could have done an article about voter apathy and used Michelle Carver as an example.

So good on the Times for at least referring to Michelle Carver with female pronouns and a female honorific. But this issue deserves serious coverage, not condescending commentary on a someone who isn't even facing the problems outlined in the beginning of the article.

Argh.

Scattered observations on the election

At Bilerico, Jillian Weiss recalls Barney Frank's statement last year that "if we can pick up 15 Democratic [House] seats, then I think we are in a good position to pass a transgender-inclusive ENDA." As Weiss notes, House Democrats picked up at least 19 seats. By the strategic standards of those who supported a non-inclusive ENDA, the time for that strategy is behind us. It is time to move forward with a fully inclusive bill.

Chris at Sex in the Public Square and Renegade Evolution have some reflections on the effort to pass Proposition K in San Francisco.

It now appears that even when all the votes are counted Prop 8 will pass. There is already litigation underway to challenge it. I've previously opined that attempting to challenge the substance of Prop 8, as somehow irreconcilable with the rest of the constitution, is a loser. But the leading argument being made now seems to be that Prop 8 is such a significant change that, under the state constitution, it should have been approved by the legislature before going to the voters (which would never have happened). The alternative argument is that the amendment isn't retroactive. It's not clear to me how strong these arguments are, but how the state's high court rules on them could well be an issue in the justices' 2010 retention races. Arthur Leonard gives a rundown of these suits, as well as the probably constitutional challenge to the Arkansas foster parenting/adoption ban.

Interesting article on gender variance in Iran

A recent article from Cheraq -- the journal of the Iranian Queer Railroad (IRQR), formerly known as the Iranian Queer Organization -- features a detailed and quite interesting discussion of the surprising acceptance of gender transition in Iran. The author argues that while the acceptance of transsexualism by leading Iranian clerics has been lifesaving for many, the conflation of gender and sexuality in the prevailing Iranian theology has harmful implications for both trans and gay people living under Islamic rule:

Today, there is a certain celebratory tone about recognition of transsexuality and permissibility of sex-change perations within the Islamic Republic of Iran. ...Yet, behind these apparently progressive stories of gender recognition lies an emerging disturbing discourse on gender and sexual disorders and pathologies....
...This collapsing of gender and sexuality has distinct implications for transpersons and homosexuals. Transpersons are perceived of as being “homosexual” and are demonized and punished as such when in reality many of them might not even identify as homosexual; in turn homosexuals are tacitly pressured to seek hormonal and surgical sex/gender transformation when in reality many of them might not be genuinely transsexual.

I can't help noting that my own student Note -- Against the Surgical Requirement for Change of Legal Sex -- is cited repeatedly.