Holloway v. Arthur Andersen

Holloway v. Arthur Andersen, 566 F.2d 659 (Ninth Circuit 1977).

Factual and Procedural History: Employee worked at Accounting Firm.  Employee was male when she was hired, in 1969.  About a year later, in 1970, Employee began receiving female hormone injections.  In February 1974, Employee received a promotion.  She also revealed to her supervisor at this time that she was undergoing female hormone therapy. In June 1974, there was an annual review.  During the review, a "company official" suggested that Employee would "be happier" at a different workplace where her transsexual history would be unknown.  Employee nonetheless received a raise.  In November 1974, Employee requested that Accounting Firm use her new name. Accounting Firm did so.  Shortly thereafter, however, Employee was terminated. Employee pursued administrative remedies, but to no avail, and so filed a complaint in federal district court.  The complaint alleged impermissible discrimination on the basis of sex under Title VII.  Accounting Firm filed a motion to dismiss for (1) failure to state a claim and (2) lack of subject matter jurisdiction.  The district court ruled in favor of the Accounting Firm, holding that it did not have jurisdiction because "sex" in Title VII did not include "transsexualism".          

Outcome: Affirmed.  

Title VII and Transsexuals.  Employee argued that "sex" means "gender", which would include transsexuals.  Accounting Firm argued that "sex" means "anatomical sex". Subsequent legislation and cases show Congress had latter meaning in mind. The Equal Opportunity Employment Act, passed in 1972, which amended Title VII (but not the word "sex"), was intended to remedy the economic inequality between men and women. Cases interpreting "sex" in Title VII show the same intention.  Also, under a 'plain meaning' construction of the statute, "sex" means "traditional notions of sex".  There have been bills introduced to amend the Civil Rights Act to cover 'sexual preference', but none has been enacted.  Court can't expand meaning absent Congressional "mandate" to do so.

Equal Protection.  Employee argued that excluding coverage of transsexuals from Title VII would deny transsexauls equal protection of the laws.  A statute does not violate equal protection when it has a rational relationship to a legitimate governmental interest, unless there is a "suspect class" involved, in which case, the court applies "close judicial scrutiny".  Transsexuals are not a suspect class because (1) Transsexuals are not a "discrete and insular minority".  Graham v. Richardson, 403 U.S. 365, 372 (1971); (2)   Transsexuality is not an "immutable characteristic"; and (3) the difficulty in defining 'transsexuality' would "prohibit determination" of transsexuals as a suspect class. Rational relationship is the test to apply here, and prohibition of employment discrimination based on sex is rationally related to a legitimate governmental interest.

Transsexuals may state a claim under "sex" in Title VII if the claim is based on being male or female, but cannot state a claim based on transsexuality.  

Dissent: This is not a "sexual preference" case.  Sex change operations finish what nature left unfinished.  Employee's sex was not "stationary" during transition, but when she finished her surgery, she had a "sexual classification" under Title VII.  It's unreasonable that someone would have a cause of action post-surgery, but not before, because of being in transition.  

This case is on Google, here.   

I Love This

I love this.  A wise friend introduced it to me yesterday.  It's one of the most refreshing things I've read in a long time.  Thank goodness for wise friends.  I love you, B.

I think there's reluctance on the part of some male to female transgender people to express support for certain basic beliefs, because of the self-conscious feeling that people might think we're "really" seeking "validation".  But this essay blasts through all of that.        

Smith v. City of Salem

Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Circuit 2004).

Factual & Procedural History: Smith was a male lieutenant in the fire department.  Smith worked in the fire department for seven years without any negative incidents.  Smith began to transition to female.  At first, not telling anyone.  However, coworkers began to question Smith's changing appearance.  Smith approached Supervisor to explain transition and have Supervisor resolve coworker concerns.  Supervisor agreed not to say anything to fire department Chief, but did so anyway.  Chief then met with city "Law Director" to make plans to terminate Smith, based on Smith's transsexualism.  Later, Chief and Law Director met with city Executive Body to discuss plans for terminating Smith.  This meeting did not follow Ohio statutory requirements for city meetings to discuss employment actions.  The plan that came out of the meeting was to require Smith to undergo psychological evaluations.  They thought he would either refuse the evaluations or resign.  If he resigned, so the plan went, they would be free of him, but if he refused, he could still be fired for insubordination.  City Safety Director Willard was against the plan, and told Smith about it after the meeting.  Smith got a lawyer.  The lawyer called City mayor to inform City that Smith had representation, and that there would be "legal ramifications" if the City went through with its plan.  Shortly thereafter, Smith was suspended for an alleged fire department policy infraction.  There was a hearing before the civil service commission.  At this meeting, Smith said there was "disparate treatment" and "selective enforcement" in the way he was treated by the City.  Smith attempted to elicit testimony about the meeting at which the plan was made to fire him.  This attempt was denied by the civil service commissioner.  The commission upheld Smith's suspension. Smith appealed to the "Court of Common Pleas", which reversed the suspension because the "regulation was not effective".  Smith filed a lawsuit in federal district court claiming (1) sex discrimination; (2) retaliation; and (3) Section 1983 claims.  District court granted "motion for judgment on the pleadings" to defendants.  Smith appealed.     

Holding:  Reversed and remanded.  District court held that claim of discrimination based on transsexuality is not a Title VII sex stereotyping claim under Price Waterhouse, and that Title VII does not prohibit discrimination based on transsexuality.  Price Waterhouse  interpreted "sex" under Title VII to include discrimination based on sex stereotypes.  The plaintiff in Price Waterhouse was denied partnership in an accounting firm for not acting in a way the other partners regarded as feminine.  Smith has established a similar claim. The adverse employment actions were all taken because of Smith's behavior and appearance didn't match the stereotype of how a man should act.  District Court relied on pre-Price Waterhouse cases that held Title VII "sex" did not include transsexuals.  Ulane v. Eastern Airlines held that the word "sex" in Title VII meant anatomical sex, not "gender"--the "socially constructed norms associated with sex".  Holloway v. Arthur Andersen & Co. held that discrimination against transsexuals is discrimination based on "gender" rather than "sex".  These cases were "eviscerated" by Price Waterhouse.  Price Waterhouse includes both "sex discrimination" (discrimination based on anatomical sex), and "gender discrimination" (failure to act in a way stereotypically associated with one's anatomical sex).  An employer who discriminates against a woman for failing to wear make-up is engaged in sex discrimination.  Likewise, an employer who discriminates against a man for wearing make-up is engaged in sex discrimination, "because the discrimination would not occur, but for the victim's sex".  Other courts have avoided this analysis by holding that sexual orientation or transsexuality are somehow separate categories of gender nonconformity that don't fall under Price Waterhouse, but Price Waterhouse did not make sex stereotyping claims conditional upon not being transsexual.  Sex stereotyping is sex stereotyping, regardless of whether the victim is transsexual or not.

This case is available on Google, here.                 

U.N. Resolution on Gender Identity

The United Nations Human Rights Council passed a resolution (A/HRC/17/L.9/Rev.1), introduced by South Africa, requesting a study 

to be finalised by December 2011 to document discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world, and how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity.

The link to the minutes of the Human Rights Council's meeting is here.

Twenty-three nations voted in favor, nineteen were opposed, and three abstained.

Nations arguing against said that (1) the ideas contained in the resolution had no basis in or connection to international law; (2) this was attempt to create something new out of whole cloth; (3) these ideas should not be forced on other nations given their differing value systems.

Memorable statements in favor (descriptions of what they said from the minutes):

1. Jerry Matthews Matjila (South Africa): "Persons should not be subjected to discrimination or violence based on their sexual orientation or gender identity. The resolution did not seek to impose values on Members States but [seeks] to initiate a dialogue which would contribute to ending discrimination and violence based on sexual orientation or gender identity."

2. Juan Jose Gomez Camacho (Mexico): "It [is] a question of non-discrimination, not a new subject in the Council. Non-discrimination on grounds of race and religion and non-discrimination against women, the elderly and those with disabilities [are] values that stood fully recognized by all. Non-discrimination on grounds of sexual orientation [is] the same thing. Mexico [does] not share the views of colleagues that the Council would be imposing non-recognized rules. This [is] a human right."

3. Eileen Chamberlain Donahoe (United States): "Violence against any person on grounds of sexual orientation was a violation of human rights. The right to choose who to love was sacred. Each human deserved protection from violence. Moving forward with this resolution confirmed the aspiration to attain the best of human nature. The United States thanked the South African Government and its Ambassador for the consultative approach taken and its stunning leadership and looked forward to cooperation in implementing this exceptional step forward."

Transcript of US State Department briefing on the resolution, here.

One of Ambassador Donahoe's comments in the State Department briefing:

 I think it’s often expressed as an effort of, let’s say, Western countries to impose their values on more traditional cultures or different cultures. And I think what we’re seeing is that that’s a fundamental misunderstanding of what’s going on here. And our perspective is that these are core fundamental, traditional human rights. They are universal. They already exist. It’s not a matter of imposing these values on anyone. They exist and they – every individual embodies those rights. And this is simply reaffirming that regardless of one’s sexual orientation or identity, people all are endowed with these rights.

And I think that the conflicting narrative we have is between the idea that these are just core human rights for all individuals, that we are reasserting in a way that makes it obvious that they’re applicable to LGBT people versus this idea that I think is mistaken and will shown – be shown relatively soon to be an outdated idea that this is an imposition of Western values. I think that idea is losing steam, and I think more and more countries and people around the world are coming to see that these really are just basic universal human rights.

Vague vs. Specific Bullying Policies

In a discussion on CNN in 2010, Candi Cushman from Focus on the Family, Eliza Byard from GLSEN, and Rosalind Wiseman, an author and bullying expert, talked about the Safe Schools Improvement Act and what kind of anti-bullying policy was the most effective.  

Part of the debate was on Ms. Cushman's belief that the Safe Schools Improvement Act was a Trojan horse for advancing pro-sexual minority ideas in schools.

Another part was on the necessity of having a list of characteristics, as the Act would require (e.g., sexual orientation, gender identity, race, disability) that bullies are prohibited from targeting.  Ms. Cushman asserted that bullies target a variety of characteristics in their victims, such as wearing glasses, or being overweight, thus creating the risk that the bullying of children for off-list characteristics would go unaddressed by schools.  Better to focus on the bully, Ms. Cushman said.

According to Ms. Byard and Ms. Wiseman, however, being specific about what's not allowed goes to the heart of what makes an effective policy that actually reduces bullying.

Ms. Byard's key points:

1. Evidence shows that if the policy isn't specific, teachers don't act.

2. Evidence shows that rates of harassment go down when the policy is specific.

3. When policies mention sexual orientation and gender identity, there is less overall bullying.

Ms. Wiseman's key points (quotation marks reflect original language, not irony):

1. It's essential to mention sexual orientation, because bullying goes hand in hand with homophobia.  When one kid wants to stop an incident of bullying, another kid will say, "Don't be gay".  Stopping anti-sexual minority bullying therefore, frees other kids to speak up when all kinds of bullying occur.      

2. General policies put the "onus" of establishing that bullying occurred on the victim.  If you take out the specific language, kids have a harder time "defining", or articulating, what happened, and results in the school's whole anti-bullying effort coming to nothing.  

What does a general policy look like?  My former middle school has one.  This is from the "school handbook", which contains all of the school's policies regarding student behavior, from the dress code, to cafeteria behavior, to the use of cell phones in school, and so on. Here is the section titled "Bullying Policy":

Students are expected to treat one another with civility and respect.  Acts of harassment, intimidation, or bullying are not tolerated.  Such acts have the effect of insulting or demeaning a pupil or group of pupils, and must be reported to the principal.  Disciplinary action will be taken in accordance with the New Jersey Harassment, Intimidation, and Bullying (HIB) policy.

The policy seems to recognize that particular characteristics are targeted ("group of pupils"), but it doesn't "name the behavior", as Ms. Wiseman and Ms. Byard think is essential to be effective.  

Safe Schools Improvement Act of 2011

According to statistics published in February 2011 by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, 78% of transgender students reported harassment in school, 35% had been physically assaulted, 12% had been sexually assaulted, and 15% left school because of harassment.  

Senators Mark Kirk (Republican from Illinois) and Bob Casey (Democrat from Pennsylvania) have introduced a bill called the Safe Schools Improvement Act of 2011 to address bullying.  It is Senate bill 506 and House bill 1648.

The bill would amend the Elementary and Secondary Education Act of 1965.  Some of its key features (quotation marks reflect original language, not irony):

1. The Congressional "findings" section of the bill (establishing the factual basis for legislative action) specifically mentions "gender identity": "Students have been particularly singled out for bullying and harassment on the basis of their actual or perceived race, color, national origin, sex, disability status, sexual orientation or gender identity, among other categories." (Section 2(5))

2. The bill would require states: 

    a. To collect and report information on bullying--what kind, how much, "perception" of impact on victims, and at what age it starts.

     b. Not to identify in their reports either the names of the aggressors or the names of their victims.

    c. To evaluate the need for anti-bullying programs, and the effectiveness of school responses to incidents of bullying.

3. The bill requires local school boards:

     a. To have "clear" prohibitions against bullying (which is defined to include harassment based on gender identity) within their disciplinary policies.

    b. To report to parents each year statistics on bullying incidents that occurred in the local schools, as well as notice as to what kinds of behavior are regarded as bullying.

     c.  To establish grievance procedures for handling complaints about bullying, including identifying the person who receives the complaints, and the "timeline" for how the complaints will be resolved.

Find 506 on the Library of Congress bill search system here.  

Senator Casey wrote about Focus on the Family's criticism of the bill in this Huffington Post article. Focus on the Family's Candi Cushman responded, in this article, also in the Huffington Post. A third writer named Jim David also published an article in the Huffington Post, here, critical of Focus on the Family's response to the bill.

Ms. Cushman, Eliza Byard from GLSEN, and a clear-speaking expert on bullying, Rosalind Wiseman, debated the 2010 version of the bill on CNN, in this YouTube video.

Right to Proper Medical Care for Transgender Children

Legal Questions:

Does the Constitution grant parents, acting on their sincerely-held religious beliefs, the right to deny their minor transgender children access to medical care that the children need for their lifelong well being?

Could the state supersede its judgment for parents who refuse to let their transgender child transition on religious or non-religious grounds?

Could a transgender child whose parents refuse to allow her to transition petition a court to be declared an adult with authority to make medical decisions for herself?

Law review articles:

1. The Doctor Won't See You Now: Rights of Transgender Adolescents to Sex Reassignment Treatment, Sonja Shield, 31 NYU Review of Law & Social Change 361 (2007).  

2. Because We Say So: The Unfortunate Denial of Rights to Transgender Minors Regarding Transition, Amanda Kennedy, 19 Hasting Women's Law Journal 281 (2008).

3. Statistically Speaking: The High Rate of Suicidality among Transgender Youth and Access Barriers to Medical Treatment in a Society of Gender Dichotomy, Mary Huft, 28 Child. Legal Rights Journal 53 (2008).

4. Transgender Youth, Adolescent Decisionmaking, and Roper v. Simmons, Maureen Carroll, 56 UCLA L. Review 725, (2008-2009).

5. Elective Surgery -- When Parental and Medical Opinion Supersedes a Child's Right to Choose, Danielle Hawkes, Journal of Law and Family Studies (2009).

6. Empty Promises?  How State Procedural Rules Block LGBT Minors from Vindicating Their Substantive Rights, Sara Jeruss, 43 University of San Francisco Law Review 853 (2008-2009).

Two Approaches to Transgender Children

Two articles on different approaches to treating transgender kids--one from the Atlantic published in 2008, and another published by NPR, also in 2008.  Both discuss Dr. Kenneth Zucker.  

Two Families Grapple with Sons' Gender Identity (NPR, May 7, 2008)

A Boy's Life (the Atlantic, November 2008)

To Gay and Transgender Teens

A short list of things I'd like to say to gay and transgender kids, in no particular order.  The cultural left (as much as we owe them our very lives) doesn't put a high priority on these ideas.  The cultural right does, but their message receives little respect among sexual minorities, being contaminated, of course, by their desire that sexual minorities not even exist, and their single-minded obsession with transforming us into heterosexuals.

That leaves a gaping hole in gay and transgender kids' exposure to useful, traditional ideas growing up--a hole big enough to fall through and fail in, if not die in.

The list:

1. Sex outside a loving relationship is overrated, and promiscuity increases your risk of contracting a sexually transmitted disease.  Generation after generation rediscovers this. Does your generation have to prove it again, too?  Why learn from experience when you don't have to?

2. Religion is important for keeping your balance in life, even if you don't believe in God. Having daily or weekly spiritual practices, or meeting like-minded people regularly, in which the point is to think about and discuss the larger issues of life, people's place in the world, mortality, and so on, is a human need, like eating and sleeping, and often has constructive benefits that flow into other areas of your life.  Everyone can find something beneficial in centuries-old or millenia-old wisdom.  However, under no circumstances should you even make contact with a church that doesn't accept your sexuality or gender identity.

3. Drugs, alcohol, and tobacco damage your health, damage your appearance, and can lead you to make poor choices that have lifelong negative consequences.  They ultimately compound stress, and make permanent (in the form of physical damage to your body) what was only temporary (the stress you felt, from say, an encounter with discrimination). The best stress reliever--far and away better than any substance--is having good relationships with sympathetic family members, friends, or people in pro-sexual minority organizations. Listening to music, reading Buddhist or Christian scripture, eating comfort foods such as dark chocolate, and exercising are also good stress relievers. 

4. Working hard, studying hard, and saving your money are underrated.  Without being a jerk about it, you can become more tenacious, thriftier, harder-working, and a better student.  If you only study one or two hours a day, try adding ten minutes to your study time.  When you get comfortable with that, add ten more.  At some point down the road, you'll have doubled or tripled your studying time, and you may get a very pleasant surprise in the form of a report card that reflects all your hard work.

5.  Blindly questioning authority is as foolish as blindly following authority.  The bulk of civic life is per se non-ideological (e.g., the administration of parks or hospitals, compliance with traffic laws, taking out the garbage on a certain day, to name just a few areas).  To the extent that civic life is ideological, it's usually around the edges, not at the heart.  Respect for authority smooths the arrangements and concessions we make to live in the world comfortably with other people.  Also, when it is necessary to speak out, the quiet voices of those who respect authority echo louder and longer in other people's minds than the loud voices of those who have made attacking authority a way of life.

6.  Don't buy into popular culture (and all its outrageousness, straight or gay).  Both the cultural right and the cultural left perpetuate stereotypes and expectations about sexual minorities.  You're as much entitled to your individual self as heterosexual people are. Being transgender or gay is not about a particular way of talking, or a particular style of clothes.  It's not about a particular taste in art or music or books.  You don't have to like Andy Warhol.  You don't have to like rainbows.  You don't have to be "sassy" or rude. And you don't have to like the color pink, if it doesn't suit you. You aren't your sexuality (or what people associate with your sexuality), anymore than a straight person is--and you shouldn't let popular culture define you that way, even when it's trying to be "pro gay" or "pro transgender".   

Sanity Prevails in Maine

Sanity prevailed in Maine when LD 1046, the bill that would have permitted public bathroom owners to restrict bathrooms to the birth sex of patrons, was voted down by the Maine legislature.  Perhaps due in part to this testimony, written by the father of a transgender middle school student.

I haven't wanted this blog to be reprints of information easily available elsewhere, but this testimony deserves far more reprints than it's probably going to get.  I deleted the name and location out of respect for the family's privacy.

Here it is: 

My name is ***** ******, I live in **********. I have a 13-year-old transgender daughter. In the beginning, I was not onboard with this reality. Like many of you I doubted transgender children could exist, I doubted my wife and I doubted our counselors and doctors. However I never doubted my love for my child. It was only through observing her pain and her suffering and examining my lack of knowledge about these issues did I begin to question my behavior and my conservative values. I learned that the medical standard of care requires parents seek assistance from a panel of experts. We did this and our team of doctors recommended my daughter to live fully as a girl. We cannot turn back now. 

When my daughter lost her privileges at school and both children and adults targeted her, I knew I had to change and I have never looked back.

When we moved to Maine, it was clear my daughter was transitioning from male to female with us or without us. She used the girl's bathroom with no fanfare; she was confident and very social. Her strong personality helped the entire school transition right along side of her. She was proud and secure with herself and when people asked at the young age of six she openly stated that she was a girl trapped in a boy's body. The transformation was amazing, but her happiness would not last.

Unfortunately the fears of others would destroy everything that our team of doctors, teachers, school counselors, friends and classmates had work so hard to establish. I know that it is difficult for some of you to understand the needs of transgender children. You only need to spend some time with these kids to see that they are struggling and suffering beyond your imagination only because they are singled out and misunderstood. They are just like your children and grandchildren; they have the same hopes and the same dreams.

In the fifth grade because of significant negative exposure we had to take drastic measures to protect her from harm, including splitting our family up to go in hiding and we are not the only family that has had to do so. When she was told she could no longer use the appropriate bathroom her confidence and self-esteem took a major hit. Prior to this my daughter often said, "Dad being transgender is no big deal, my friends and I have it under control." I was very proud of her. It was only when adults became involved with their unfounded fears that her world would be turned upside down. "She came to me crying and asked, "Daddy what did I do wrong? Daddy please fix this?" That is what dads do -- we fix things. I had to break her heart and say, "You have not done anything wrong sweetie, but Mommy and I do not know how to fix this, but we will try."

Continuing to single these kids out is not necessary. Having the opportunity to use the bathrooms of their true gender is essential for these kids' well being. This bill places transgender children in a position of doom and hopelessness. This bill tells my daughter that she does not have the same rights as her classmates and reinforces her opinion that she has no future. 

Therapy Disaster

Another ex-gay therapy disaster story appeared in the news, this time on CNN:

Therapy to change 'feminine' boy created 'troubled' man, family says

Maine Bathroom Bill II

(Maine Bathroom Bill I is here.)

Maine public radio published a nice article on the transgender middle schooler N, who, with her twin brother J, and the rest of their family, have been lobbying against Maine's "bathroom bill", which would allow businesses to restrict bathroom use to patrons' birth sex.  There is also an audio clip of the article.  

N and J are working on behalf of N, but they're also working on behalf of the rest of us.  The sponsor of the bill has met N, and apparently is now willing to limit the bill to "locker rooms" and "showers".  That's progress.  Good work, guys!  I'm really grateful, and I'm proud of you.  We owe you one.  

Aside from the bill itself, the article is another suggestion of the difference in the responses early and late transitioners draw from people.  The earliest transitioners--those who are lucky enough to start estrogen treatment at the time they otherwise would have begun male puberty--often seem to induce in other people an involuntary (and correct) conviction in the transitioner's femininity.  

Treating transgender kids early means the difference between a whole life of being almost an ordinary member of the sex with which you identify--an ordinary daily experience outside of the home, an ordinary dating life and marriage--or being a person for whom virtually every interaction with other human beings is marred by the other person's discomfort, disgust, prejudice or potential for violence. 

The article is here.

(I modified this post on June 9, 2011 after worrying that some of the content in the original version could be used irresponsibly.)    

Equal Access to Intrastate Commerce Act

A city in a conservative state passed an ordinance requiring businesses contracting with the city not to discriminate against both transgender and gay people.  The state, under the guise of promoting business efficiency through uniform laws, responded by enacting a statute prohibiting cities from offering greater protection against discrimination than that offered by state law.  The fact scenario recalled the circumstances that arose in the 1990s in another state, in which the US Supreme Court struck down a state constitutional amendment aimed at limiting local governments from protecting homosexuals from discrimination.  That Supreme Court decision offers hope that the new statute may be struck down as well.

1. The City Ordinance

In 2009, Nashville, Tennessee added "sexual orientation" and "gender identity" to its list of protected categories in city employment.  In April 2011, another ordinance added sexual orientation and gender identity to the city's procurement code--the municipal laws governing the relationship between the city and private business contracting to do work for the city. (Nashville Municipal Code 4.28)  The ordinance mentions the conduct of a particular contractor as a reason the passage of the ordinance.  The code required that any private business contracting with the city had to submit an affidavit saying that it did have any discriminatory employment policies or practices.  (Nashville Municipal Code 4.28.020)     

Because of the new state law, "gender identity" and "sexual orientation" have already been removed from the online copy of the Nashville procurement code, but here is how (part of it) it looked:

"It is declared to be the policy of the metropolitan government that any person contracting for building and construction projects or furnishing supplies or services to the metropolitan government, and to which any funds of the metropolitan government are expended, shall establish equal employment opportunities for all individuals so that no individual shall be excluded from employment by such person because of race, creed, color, national origin, age, sex, gender identity, or sexual orientation, and to ensure compliance with all applicable laws concerning the employment of individuals with disabilities." (Ordinance No. BL2011-838)

2. The State Law

The Equal Access to Intrastate Commerce Act (EAIC) limits local government in Tennessee from prohibiting discrimination beyond what's allowed by state law:

A. The law adds a definition of "sex" to the definitions section of Tennessee human rights statutes.  Sex "means and refers only" to "the designation of an individual person as male or female on the individual's birth certificate". (Link to the definitions section: Tennessee Statutes 4-21-102)

B. The law says local governments may not "impose or make applicable" anti-discrimination laws that vary from the definition of "discriminatory practices" in 4-21-102, or that vary from the way terms (such as "sex") are defined in Tennessee human rights law.

(See the EAIC in its entirety here.)

My paraphrase: Transgender people are not protected by state law, and the state won't allow cities to protect them either.

(Price Waterhouse v. Hopkins-inspired question: If "sex means and refers only" to birth certificate designations of male or female, is Tennessee saying it's okay to permit discrimination against heterosexuals based on sex stereotypes?)  

3. The Religious Right

Leaders of conservative religious organizations supported passage of EAIC.  The Southern Baptist Convention and the Tennessee Baptist Convention made the following arguments:

A. The rights of Christian business owners are infringed by Nashville's ordinance.

B. "Elevating sexual orientation and gender identity as a protective class is wrong." Sexual minorities are not "immutably distinctive".  Protecting sexual minorities as a class of people "trivializes" and "mitigates" the civil rights of all people.

C. Uniformity of discrimination law means businesses don't have to deal with a confusing patchwork of different laws in different jurisdictions.

The first argument is the worn-out claim that one's religious beliefs trump other people's equal participation in the marketplace.  Having religious beliefs doesn't entitle you to define your freedom not associate with others so expansively as to limit the employment opportunities of people you dislike. 

The second argument almost makes it sound like the religious right would be okay with discrimination against heterosexuals.  

The third, obviously, is a pretext.  Are there other areas of municipal law affecting business that vary from city to city?  You'd guess there are many.  Is the state going to make all these uniform by state statute?  Is having to file an affidavit with a bid for a Nashville city contract really a burden on intra-state business if you have to file one anyway whether the procurement code covers gender identity or not?  Does the Southern Baptist Convention usually spend a lot of time worrying about inconsistent business laws across different jurisdictions as an impediment to commerce?  (Or just this one time, since it's about transgender people?)      

     

4. Romer v. Evans, 517 U.S. 620 (1996)

Summary: Local governments in the state of Colorado, such as Aspen, Boulder, and Denver, passed municipal laws protecting homosexuals and bisexuals from discrimination in employment, housing, and public accomodations.  In 1992, Colorado held a statewide referendum that added "Amendment 2" to the state constitution.  Amendment 2 invalidated all of these local anti-discrimination laws, and prohibited any part of the state government from anti-discrimination action as well.  Homosexual private citizens and cities whose laws had been invalidated brought a lawsuit against the state to have Amendment 2 struck down.  The trial court stayed the enforcement of Amendment 2.  On appeal, the Colorado Supreme Court held that Amendment 2 was subject to strict scrutiny, the most demanding level of review under equal protection, and remanded the case to the trial court.  Back in the trial court, the state argued (under the strict scrutiny standard) that the law was narrowly tailored to serve compelling state interests, but the trial court ruled Amendment 2 invalid.  The Colorado Supreme Court affirmed, on appeal. The state appealed to the US Supreme Court.

Holding: Affirmed, on different grounds.  Amendment 2 is unconstitutional.  It doesn't even meet the least demanding level of review under equal protection--it lacks a rational relationship to legitimate state interests, if that.

Amendment 2 didn't take away special rights given to homosexuals.  Amendment 2 singles them out and deprives them of the rights others already have and take for granted. The local ordinances sought to remedy the discrimination faced by gays and lesbians in housing, employment, insurance coverage: "These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society."

Amendment 2 "defies" typical equal protection analysis.  Equal protection analysis recognizes that laws by nature make distinctions among people, but if a law doesn't infringe on a fundamental right or if it is not aimed at a suspect class, then it is permissible if it reasonably related to a legitimate governmental purpose.  Amendment 2, however, identifies people "by a single trait" and denies them protection "across the board".  "It is unprecedented".

Amendment 2 seems to have come from "animus" toward homosexuals.  The "bare desire" to harm a "politically unpopular group" of people is not a "legitimate governmental interest".    One rationale cited for Amendment 2 was freedom of association, for employers and landlords whose religious beliefs were opposed to homosexuality.  The state also argued that fighting discrimination against homosexuals reduced the amount of state resources available to fight other forms of discrimination.  "The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit."

Romer is on Google, here.

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The reasoning in Romer lines up with some of the facts surrounding the passage of EAIC, including the belief of the Southern Baptists that religious convictions of business owners and their freedom of association are infringed by the ordinance, and the misunderstanding evident in the Southern Baptists' argument that the ordinance gives sexual minorities "special rights" by "elevating" them to a special status.   

  

SB 49 Passes the Tennessee Senate

On May 20th, the Tennessee Senate passed Senate Bill 49, known in the media as the "Don't Say Gay Bill".  The bill would limit sexual education in Tennessee elementary and middle schools exclusively to heterosexuality.  

The bill was passed with an amendment ("Amendment 5") that altered the language from "heterosexuality" to "natural human reproduction science".  The new phrase was argued to be narrower, and would even further limit the scope of what could be taught, excluding such things as "artificial insemination".  

Previously:  "Notwithstanding any other law to the contrary, no public elementary or middle school shall provide any instruction or material that discusses sexual orientation other than heterosexuality."

As passed: "Notwithstanding any other law to the contrary, any instruction or materials made available or provided at or to a public elementary or middle school shall be limited exclusively to natural human reproduction science.  The provisions of this subdivision shall also apply to a group or organization that provides instruction in natural human reproduction science in public elementary or middle schools."

The new language (though vague) when combined with the legislature's expressed intent on its meaning, would exclude educational material mentioning transgender people as well as gay people.

My paraphrase: Strictly the biological facts.  Don't say gay.  Don't say transgender.
 

Senator Andy Berke from Chattanooga pointed out that sex education in elementary and middle schools not approved both by the state board of education and the local school board is currently a misdemeanor under a different law (Tennessee Statute 49-6-1005). He asked if SB 49 would inadvertently permit "age inappropriate" heterosexual sex education where this previous law had forbidden it.  Senator Stacey Campfield, the sponsor of SB 49, reassured him it wouldn't.  He said it would merely clarify what can be taught, when otherwise permitted by the state and local boards of education.

Other senators worried that the new language in Amendment 5 was so narrow it would unintentionally bar the teaching of abstinence and sexual ethics.  

Here is 49-6-1005:

(a) It is unlawful for any person in any manner to teach courses in sex education pertaining to homo sapiens in the public, elementary, junior high or high schools in this state unless the courses are approved by the state board of education and the local school board involved, and taught by qualified instructors as determined by the local school board involved. Any such course in sex education shall, in addition to teaching facts concerning human reproduction, hygiene and health concerns, include presentations encouraging abstinence from sexual intercourse during the teen and pre-teen years. With respect to sex education courses otherwise offered in accordance with the requirements of this subsection (a), no instructor shall be construed to be in violation of this section for answering in good faith any question, or series of questions, germane and material to the course, asked of the instructor and initiated by a student or students enrolled in the course.

(b) This section shall not apply to general high school courses in biology, physiology, health, physical education or home economics taught to classes. 

(c) A violation of this section is a Class C misdemeanor.

The page for SB 49 in the Tennessee Legislature's well-organized site, here.

Price Waterhouse v. Hopkins

Perhaps the most famous case in American transgender law--the US Supreme Court's sex stereotyping decision, Price Waterhouse v. Hopkins (in which, ironically, there are no transgender characters).

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Quotes from Ann Hopkins:

"Discrimination cases tend to get very personal, very fast."

"I offer advice reluctantly. That said, I suggested to most of the potential [discrimination case] litigants that they ask themselves: If I win, will the prize be worth the price? At what cost is litigation worth it? Is one more grade or step in the civil service hierarchy worth a year of life struggling through internal administrative processes and the EEOC? What’s the human cost in time lost to self, family, and career? Considered in the greater context of life, is this the hill to die on?"

(This quote neatly sums up the heavy personal cost of fighting discrimination in the courts and administrative tribunals.  For transgender people, however, I think the answer would be "yes", because our battle isn't for one higher civil service grade.  It's to be able to have a career at all--and a family, and a self.)

*          *          *          *

Price Waterhouse v. Hopkins, 490 US 228 (1989).

Summary: 

Hopkins was female.  Hopkins was a very successful manager at a large Accounting Firm.  For example, Hopkins got the State Department as a client for  the Accounting Firm--a $25 million dollar contract.  Clients, including people from the State Department, praised Hopkins' work, professionalism, and intellectual ability.  However, Hopkins could also be "hard to work with", "brusque", and "abrasive", in particular to staff.  The firm partners had told Hopkins that she needed to improve her interpersonal skills.  

Every year, managers in the firm from around the country would be nominated and evaluated for partnership.  One year, Hopkins was nominated, along with 88 other people from other offices.  None had a record of securing big contracts like Hopkins did. 

There was a process to follow: Partners in a local office would nominate a candidate.  All partners in Accounting Firm could then submit comments on the candidate.  If they knew the candidate well, they could submit their comments on a "long form".  If not, they could submit a "short form".  An "Admissions Committee" would evaluate the comments and then make a recommendation to a "Policy Board".  The Policy Board would then accept, deny, or put the candidacy on hold.

There was a lot of evidence that many partners weren't so much bothered by Hopkins' aggressive personality as by the fact that she was both aggressive and female.  Partners said she was "macho", that she "overcompensated for being a woman", and that she "needed to take a course at charm school".  One partner disliked that Hopkins swore, "because it's a lady using foul language".  Another partner said that Hopkins had "matured from a tough-talking somewhat masculine hard-nosed manager to an authoritative, formidable, but much more appealing lady partner candidate".  Another told Hopkins directly that if she wanted to make partner, she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry".

Hopkins' candidacy was "placed on hold".  The following year, her candidacy was not re-submitted.  Hopkins brought a lawsuit against Accounting Firm under Title VII of the Civil Rights Act of 1964, claiming discrimination on the basis of sex.  The District Court ruled in favor of Hopkins, holding that if Accounting Firm showed by "clear and convincing" evidence that it would have made the same decision regarding Hopkins' candidacy, in the absence of discriminatory motives, Hopkins would not be entitled to relief.  Appeals Court affirmed, upholding the clear and convincing standard.  The Supreme Court granted cert.    

Plurality Opinion: Affirmed in part; reversed in part.  Reversed on standard of proof required for employers to show they would have made the same employment decision in the absence of discriminatory motives.

Title VII of the Civil Rights Act of 1964 bars employment decisions (hiring, firing, compensation, etc.) made because of sex, race, religion, and national origin.

Accounting Firm says that in a sex discrimination case under Title VII, the plaintiff has to show that there was discrimination, and has to show that the employer would have made a different decision if the discrimination had not been present.  Hopkins argues that an employer violates Title VII whenever discrimination is present in the employment decision, even if it doesn't play a decisive role.

Accounting Firm's argument is that the statute requires plaintiff to show "but for" causation--but for the discrimination, the employment decision would have been different. That's not correct.  Title VII was meant to eliminate discrimination both when discrimination was the decisive cause and when it was part of a mix of legitimate and illegitimate causes.  Gender may not be taken into account at all when making employment decisions (except where it's a "bona fide occupational requirement").

In order to preserve employers' freedom to evaluate employees, however, the employer has an affirmative defense.  If the employer can show that it would still have made the same decision for other reasons, regardless of having also inappropriately taken gender into account, then the employer will not be liable.

Other cases are in line with this decision.  For example, in Dothard v. Rawlinson, 433 US 321 (1977), the Court "assumed" that it was the employer that must show why gender was a bona fide occupational requirement.  In a decision interpreting the Equal Pay Act (which allows different wages for employees when the pay difference is not based on sex) the Court held that it was the employer who had to show that the wage difference was not connected to their gender.

In a parallel interpretation of the National Labor Relations Act (NLRB v. Transportation Management Corp., 462 U.S. 393, 400 (1983)), the Court said: "The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute.  It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing."

Sex discrimination under Title VII isn't the mere fact of being male or female.  It also includes stereotypes about one's sex:                                                                          

"We are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.  An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.  Title VII lifts women out of this bind."

Comments at work that show sex stereotyping aren't sufficient for relief.  Plaintiff has to show that the stereotyping was part of the decision-making by the employer.  Here, Hopkins did so--Accounting Firm asked partners to submit comments on forms as part of its process for accepting new partners, and some of the comments were based on sex stereotypes.

The standard of proof for the employer's defense, that it would have made the same decision anyway, should not be "clear and convincing".  It should be "preponderance of the evidence" (greater than fifty percent).  Usually in civil litigation, like in Title VII cases, where money damages or other conventional relief is sought, standard of proof is preponderance of the evidence.  Clear and convincing standard is more appropriate for circumstances in which "coercive action" is sought, such as termination of parental rights, involuntary commitment, deportation or denaturalization.

This case can be found on Google here.

Ann Hopkins' very well-written & fascinating personal account, here.

And a nice summary of the case, from Time magazine, here.

[I will include the concurring opinions soon.] 

Burnaby, B.C. Schools' Sexual Minority Policy

Burnaby, B.C. schools put together a new draft policy, called Policy #5.45, to make sure all sexual minorities feel safe and welcome in Burnaby schools.  The policy made a splash in the news after it aroused both the enthusiasm and support of some parents and the concern and opposition of others.  The policy has not been adopted yet.

The two most interesting, specific, and practical parts of the policy (to me) are:

1. Requiring schools to include, in student conduct codes, prohibitions on student use of denigrating language.  I assume it's already unthinkable to make prejudiced comments about other categories of people.  It was in my US high school in the 1980s, but comments demeaning sexual minorities were an ordinary part of daily speech.  My high school's current conduct code includes "sexual orientation".  It certainly didn't include sexual orientation when I attended.    

2. Appointing a staff person to be a safe contact for sexual minority students and making this known to the students.  The University of Winnipeg study showed that 1 in 4 sexual minority students has no safe person to talk to in their lives, inside or outside of school.  I didn't either, when I was in high school.  The NCTE's statistics on transgender life in education in the States were even more appalling.
  

My favorite part, from the definitions section:

"Heterosexism refers to the mistaken assumption that all people are heterosexual and that heterosexuality is superior and the norm by which all other sexual orientation and gender identities are measured."

I liked this sentence so much I put it at the top of this blog.        

Seventeenth Century Transgender People

I've been looking for seventeenth century transgender people--in Colonial America--because that refutes the view commonly held by most American conservatives that America in the past was a place of pristine heterosexuality, until the 1960s came along and ruined it all.

Transgender history is also fascinating.  

It's not so easy to find source material online.  Most of the information is from seventeenth century county court records, but I can't find whole, searchable versions of these on the Internet.  

I understand it's not wise to assume that every cross-dressing person who appears in historical records was necessarily transgender.  This writer carefully describes alternative reasons why people may have cross-dressed in the past.

I think historians may be underestimating the continuity of human character across time periods.  They may also be underestimating the power of prejudice to force people to channel their feelings into acceptable roles, and the elaborate separate realities of deceit that sexual minorities have often had to create to keep ourselves beyond suspicion.  

Was the real purpose of the Massachusetts law against cross dressing to "preserve order and the social hierarchy", as one historian suggests?  Maybe from bird's eye view of anthropology it was, but in the minds of the people who enacted it at the time, isn't it more likely that they were just trying to stop cross dressing?  

Here's what I found so far (all of it is from Massachusetts):

1. In Haverhill, in 1652, Joseph Davis was convicted of putting on women's clothes.  Bodies in Doubt, An American History of Intersex, by Elizabeth Reis.

The following came from another source (at this website):

"From the History of Haverhill, p. 54 [a modern book quoting seventeenth century court records]: 'Whereas it doth appear that Joseph Davis of Haverhill was presented for putting on women's apparel and going from house to house in the night time with a female and whereas the said parties being removed from Haverhill into this jurisdiction, and being apprehended and brought into the Court of Strawberry Bank; the said Joseph Davis is judged to pay a fine of eight shillings and is also to make public acknowledgment of his fault on a lecture day, before the next Court, in default of which he shall forfeit forty shillings more.'"

2. In 1677, Dorothy Hoyt was convicted of wearing men's clothes.  Bodies in Doubt.

Someone posted a fuller version, drawn from the Essex County Court records, here. Dorothy apparently fled the county after she was charged.  Her father went to court for her and said that she had repented.  The court wanted "40s" (shillings?) from her father on the spot, or they would have Dorothy apprehended and whipped.

3. Mary Henly was in the Middlesex County Court, in 1692 charged with wearing men's clothing.  Bodies in Doubt.

4. Massachusetts adopted an anti-cross dressing law in 1696.  Bodies in Doubt.  (What law did they charge them under before that?)

5. This isn't related to transgender people, but it's just too awesome not to include.  A 1642 sentence from the Essex County Court:

"Elizabeth Johnson, servant to Mr. Jos. Yonge, [is] to be severely whipped and fined 5 li. [pounds] for unseemly practices betwixt her and another maid; also, for stubbornness to her mistress answering rudely and unmannerly; and also for stopping her ears with her hands when the Word of God was read..." (from Outhistory.org) (My emphasis.)

Go Elizabeth!

Republican versus Republican

An article I read yesterday by a gay author expressed disgust toward the Log Cabin Republicans, belittled their (successful) lawsuit against DADT, and called them "irrelevant".  Anything but the mainstream Democratic Party-connected activist groups, the author sarcastically implied, was weird.  I think the opposite--that sexual minority Republicans are part of the cutting edge in the push for equality in this era and that the internal Republican versus Republican conflicts that have emerged (the people involved, the different character of Republican-Republican debates) are actually more fascinating (party labels being my shorthand both for actual party members and for like-minded people). Here's an example (by way of roundabout description):

New York recognizes same sex marriages from other jurisdictions (e.g., Massachusetts, Vermont, or Ontario), but doesn't have same sex marriage itself.

A marriage equality bill failed last year in the New York legislature. A marriage equality bill was re-introduced into the New York Assembly, on May 10th.

Section 1 of the bill, setting out the "legislative intent", is the most interesting part:

"Marriage is a fundamental human right. Same-sex couples and their children should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex."

The bill can be seen in its entirety here. 

Groups working for marriage equality (such as Human Rights Campaign and Log Cabin Republicans) have formed a coalition called New Yorkers United for Marriage. According to a New York Times article, 2/3 of the coalition's funds have come from Republican donors.

The donors' arguments were that equality is a matter of "social justice", a right that government should not be interfering in, and also that it would be good for the New York economy by making New York more business friendly.

Advocate.com says New Yorkers United for Marriage sent out a mailer last week:

"The mailer features a [picture of] Nassau County couple, Paul and Iris Blumenthal, who want to see their son Jonathan marry.  'We’d love to invite you to our son’s wedding,' reads the mailer. 'Sadly, he’s not allowed to get married.'"

Apparently, the biggest organization opposing marriage equality is National Organization for Marriage (presumably all Republicans).  Some interesting things from NOM's web site: 

1. NOM wants people to send e-postcards to their congresspeople asking them to support a House resolution condemning the Obama administration's decision to stop defending DOMA in federal court.  

2. NOM "praises" the recent motions filed in Perry v. Brown (the federal lawsuit seeking to overturn California's Proposition 8 and to find a federal constitutional right to same sex marriage, fka Perry v. Schwarzenegger) requesting that the decision be vacated because the judge who presided over the trial, Vaughn Walker, did not disclose that he has been in a same sex relationship for the last ten years.

3. NOM says in its "talking points" section, that "extensive and repeated polling" has shown that the most effective, one line argument against same sex marriage, is, "Gays and lesbians have a right to live as they choose.  They don't have a right to redefine marriage for all of us."

So, there's the roundabout description, but the main point is, as of this week, in New York, it's wealthy Republican donors financing a marriage equality campaign, contending against a large national activist organization, also Republicans, that fights marriage equality.   

In the Matter of Jose Mauricio Lovo-Lara

A DOMA transgender immigration law decision.  Nice case, but it gives me survivor's guilt.

What would the result have been had it been a Texas couple (with Littleton v. Prange hovering about in Texas case law) rather than a North Carolina couple?

(Note: This is an administrative agency decision from the "Board of Immigration Appeals". The BIA reviews decisions by immigration judges, etc. Appeal from here is to the area federal district court or the area federal appeals court.  In the citation, "I&N Dec." means "Immigration and Naturalization Decision".)

In the Matter of Jose Mauricio Lovo-Lara, 23 I&N Dec. 746 (BIA 2005).

Summary: U.S. citizen ("Citizen") was a post-operative male to female transsexual. Citizen married a man from El Salvador ("Salvadoran") in North Carolina.  Citizen applied for a visa for Salvadoran, based on the fact that Citizen and Salvadoran were married. Along with the visa application, Citizen submitted other documents.  These were a North Carolina birth certificate saying Citizen was female, an affidavit from a doctor saying that Citizen had had sex change surgery, a North Carolina state court order changing Citizen's name, the North Carolina "Register of Deeds" record showing that Citizen and Salvadoran had married, and a North Carolina driver's license showing Citizen's new name, and listing her sex as female.  The immigration office said that (1) both Citizen and Salvadoran were born male; (2) Congress has not recognized marriages involving transgender people; and (3) DOMA requires "marriage" to be interpreted under immigration law as being only between a man and a woman; so (4) Citizen's application for a spousal visa was based on an unrecognized same sex marriage. The application was therefore denied.  Citizen appealed.

Decision: Visa application approved.  

I.  Citizen and Salvadoran's marriage was valid under North Carolina law.  North Carolina does not permit same-sex marriages, but it does permit altering birth certificates to reflect changes of sex (if you submitted an affidavit from a doctor), which North Carolina did here, and recorded the marriage, as well.  

II.  DOMA doesn't address post-operative transsexuals, so BIA must "look to the rules of statutory construction":  Plain language of statute bars same sex marriages.  Legislative history of DOMA indicates it was passed in response to the possibility of same sex marriages becoming legal in Hawaii.  Legislative history of DOMA indicates it was passed only with concern about marriages between homosexuals, not marriages involving transsexuals.  Legislative history frequently mentions "homosexuals", and uses that word interchangeably with "same sex".  Legislative history does not indicate that Congress mentioned MT v. JT, 355 A2d 204, a New Jersey case from 1976 recognizing transsexual marriage.  Congress did not mention, in legislative history of DOMA, state statutes that existed at the time DOMA was passed that allowed for "legal recognition of changes of sex".  Legislative history also contains sentence that says, "Prior to the Hawaii lawsuit, no State has ever permitted homosexual couples to marry", despite existence of MT v. JT, and despite existence of trans-marriage favorable statutes.  Therefore reasonable to conclude that with DOMA, Congress only intended to invalidate marriages between homosexuals (for purposes of federal law), not transgender marriages considered heterosexual marriages under state law.  Also, except for DOMA's narrow exception, marriage continues "exclusively" to be a state law matter.  Therefore, state determinations of marital status must continue to be deferred to, and it's the wrong approach to say that Congress must legislate on transsexual marriage before it can be recognized, if North Carolina recognizes it.      

III.  Opposing counsel argued that meaning of "man" and "woman" under DOMA should be defined by chromosomes and assigned sex at birth.  However, chromosomes are not necessarily controlling because (1) "medical experts" say there are actually "eight criteria" for determining male and female (chromosomes, gonads, internal sex organs, external sex organs, hormones, secondary sex characteristics, assigned sex and gender reared as, and sexual identity); and (2) the chromosomes of intersex people may not match their sex.  Assigned sex at birth is not controlling because it may (for example at puberty) prove later to be wrong.

This case is on the Justice Department's web site, here.  

University of Winnipeg Study

Researchers at the University of Winnipeg published the results of a comprehensive study (three years long, nationwide, several thousand kids) of the social environment in schools for sexual minority youth.  

The study's authors say it far better than I can.  What they describe sounds exactly like my own experience in a US high school in the 1980s.  (Nothing's changed in 25 years.) Two things in particular stood out:

1. "One in four [LGBT] students said they could not talk to one person in their lives about LGBTQ issues, period, let alone confide that they are LGBTQ themselves."  (Emphasis mine.)

2. "Apart from the personal attack targeting particular LGBTQ students or students perceived to be LGBTQ, there’s the generalized kind. We found what you might expect—students hear “that’s gay” and “faggot” and “lezbo” every day at school, mostly from other students. It’s the air they breathe, the sea of language they swim in. Most students go along with it—some of the LGBTQ students even use this language sometimes, and not in a fun way. The vast majority of LGBTQ students find it upsetting, as you might expect. It’s not just the one-shot, offhand “that sweater’s gay!” that produces this level of distress. It’s the day-in, day-out saturation of school culture with such language that undermines the spirits of LGBTQ kids. It’s hearing a word that applies to a core aspect of your identity used as a synonym for “stupid” 50 times a day. As educators, sometimes we tell ourselves, “It’s not serious. Kids don’t even mean homosexual. They just mean stupid.” “Just” stupid? How would we like hearing “teacher” or “parent” used as a synonym for “stupid” 50 times a day."  (Emphasis mine again.)

See for yourself, here.  

Reference Post: Transgender Discrimination Statistics

On February 4, 2011, the National Center for Transgender Equality and the National Gay and Lesbian Task Force issued a report on discrimination against transgender people in the United States.  They issued a full report, and a summary of the full report.  The report was called "Injustice at Every Turn".

Report based on survey question answers from 6,450 transgender people, from all 50 states, D.C., Puerto Rico, Guam, and Virgin Islands.

Useful statistics for advocacy letters, etc. (the numbers and most of the language is drawn directly from the summary):

Kindergarten to 12th grade education:
1. 78% of transgender respondents reported some form of harassment for being transgender.
2. 35% were physically assaulted.
3. 12% were sexually assaulted.
4. 15% left school because of harassment.

Employment:
1. 90% of transgender respondents reported harassment, discrimination, or mistreatment at work.
2. 47% reported being fired, not hired, or denied a promotion.
3. 26% lost their job.
4. 71% hid their gender transition to avoid discrimination.
5. 57% delayed their transition.
6. 16% compelled to do illegal work, such as prostitution or selling drugs.

Housing:
1. 19% of transgender respondents refused a home or apartment.
2. 11% evicted.
3. 19% experienced homelessness at some point.
4. 2% currently homeless (double national rate of 1%)
5. Among those seeking access to a homeless shelter, 55% harassed by shelter staff or residents, 29% turned away, and 22% sexually assaulted by residents or staff.

Public Accomodations (hotels, restaurants, airports, government agencies, etc.):
1. 53% of transgender respondents harassed.
2. 22% denied equal treatment by a government agency.
3. 29% harassed by police.

Health Care:
1. 19% of transgender respondents refused medical care.
2. 50% had to teach doctors about transgender care.
3. Rate of HIV infection is quadruple national average.
3. 28% postponed medical care to avoid discrimination.
4. 48% couldn't afford medical care.

Family:
1. 57% of transgender respondents experienced family rejection.

Impact of Family Rejection:
1. A. Accepting families: 9% of transgender respondents from accepting families experienced homelessness.
    B. Rejecting families: 26% experienced homelessness.

2. A. Accepting families: 11% had been incarcerated.
    B. Rejecting families: 19% had been incarcerated.

3. A. Accepting families: 11% did sex work (or other illegal work).
    B. Rejecting families: 19% did sex work.

4. A. Accepting families: 32% attempted suicide.
    B. Rejecting families: 51% had attempted suicide.

5. A. Accepting families: 27% smoke.
    B. Rejecting families: 32% smoke.

6. A. Accepting families: 19% used alcohol or drugs to cope with mistreatment.
    B. Rejecting families: 32% used alcohol or drugs to cope with mistreatment.

The summary also has encouraging statistics on the resilience of transgender people--how they pursued employment, education, and hormone therapy in spite of the barriers.

Challenged Books

The American Library Association has a lot of interesting information on its web pages about "challenged" books.

The information on their site that is significant for sexual minorities:

The most "challenged" book (i.e., someone wanted it removed from the school or library) of 2010 was And Tango Makes Three, the children's book about two male penguins raising a baby chick. This book was published in 2005 and was also the most challenged book of 2006, 2007, and 2008. In 2009 it was second on the list. The book was the fourth most challenged book between 2000 and 2009.

The ALA says a challenge "is defined as a formal, written complaint, filed with a library or school requesting that materials be removed because of content or appropriateness". They also "estimate that for every reported challenge, four or five go unreported".

Books with sexual minority content made the "top ten" list of challenged books every year since 2002. A book with sexual minority content was also in the number one spot in 2005. Between 1990 and 2010, there were 892 challenges based on books with "homosexual" content. Presumably that category includes books with transgender content as well.

The number of challenges is far lower than I would have guessed (even when you account for unreported challenges), given a population of about 250 million in 1990, and 310 million in 2010.

Daddy's Roommate was the second most challenged book of the 1990s. Heather Has Two Mommies was the ninth. Both of these children's books figured prominently in a controversy in New York City in 1993. New York City, under a recently-hired school official named Joseph Fernandez, had developed a multicultural curriculum which included sexual minorities, called Children of the Rainbow. The curriculum ended up not being implemented after a conservative school district revolted, and other conservative school districts, emboldened by the first, revolted as well.