"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Saturday, April 30, 2011

Female Impersonators on the Nineteenth Century American Stage

The political opponents of transgender people often say that the transgendered are something recent, a product of post-1960s permissiveness, the misguided celebration of a "mental illness", or something that emerges from the disorder of a country or civilization in decline---but whatever the origin, something new and something contrary either to centuries of Western culture or to human nature.  The most recent example I saw of this was a piece in the Washington Examiner about an anti-discrimination bill before the Maryland Senate, which said, "Most insidious about this legislation is that by acting to redefine the humanity of us all, it is a gross violation of the trust of the governed."

This is a reference post to draw from to counter one part of this frequently-appearing idea--that transgender people are linked to the "decline of America".  This reference post focuses on the popularity of female impersonators in American theater in the second half of the nineteenth century, a time when the United States grew from a regional power to a world power.  If the argument holds true that national power and economic welfare are somehow inversely related to the presence of transgender people, based on American economic growth of that era, there should have been few transgender people.  In fact, like in all eras, there were many:                                                                                           
1. A Missouri newspaper in 1873 announces the appearance of "Harvey's Minstrels" at a local opera house.  Among many compliments regarding the personal conduct of its members, the announcement notes that one of its stars is a female impersonator named Bernardo, who has had "417 offers of marriage from the sons of gentility who have been deceived by his perfection".  (The St. Joseph Daily Gazette, November 19, 1873.)               
2. A Geneva, New York newspaper reports in 1874 that a fundraiser held for a local school so that they could buy an organ fell short of the purchase price of the organ.  One reason was the heavy rain.  Another reason was that a female impersonator ("Mr. Stanley"), who was the star of a performance troupe that was scheduled to perform, had a bad cold and couldn't sing.  The article says the troupe had performed previously in Geneva, and were so well liked they would always be welcome in the future.  (Geneva Gazette, February 27, 1874.)                                                                                                                           
3.  A Baltimore, Maryland newspaper in 1877 gives a positive review of the performance, the previous evening, of Duprez & Benedicts Minstrel's.  Among the performers was female impersonator "Mr. Frank Kent", who "rendered his character songs inimitably, and being gifted with a good falsetto voice, that and his marvellous make-up, rendered the illusion perfect". (Baltimore American and Commercial, February 23, 1877.)

4. A New York Times article from 1879 reports the death of Omar Kingsley, a female impersonator, who, under the name Ella Zoyara, performed equestrian stunts in traveling shows, from the 1850s(?) until her death.  The article's short description of her event-filled career reads like a fictional adventure story, but perhaps the most noteworthy part is that she regularly presented herself as female, offstage: "He had always appeared in female attire on steamers, on the streets, in hotels, and in the circus..."  Zoyara also appears in several other New York Times articles, one of which is an 1861 article about a lawsuit over horses.  One of the horses was given to Zoyara by the "King of Sardinia" as a "tribute to her great equestrian skill and virtue as a lady".  (New York Times, May 28, 1879 (the obituary); New York Times, November 9, 1860 (describing Zoyara's marriage to a man as "settling the question" about her sex); New York Times, November 30, 1861 (the horse lawsuit, which also reports that she eloped with a woman), New York Times, December 20, 1863 (Zoyara's legal residence at issue in a lawsuit); New York Times, February 15, 1865 (a lawsuit over salaries for employees of the Stokes Circus Company).)

5. A newspaper from Rochester, New York, from 1887 describes how "Harry LeClair", "without doubt the best female impersonator on stage", "took the house by storm".  (The Post Express, December 27, 1887.)

6. A Milwaukee newspaper announces in 1897 that a female impersonator named "Elwood" is performing in "Chutesville Vaudeville" and that "crowds are in attendance".  (The Milwaukee Journal, September 22, 1897.) 
There is an interesting discussion of female impersonation in 19th Century American theater from a book called Vaudeville, Old and New, here on Google books.

Friday, April 29, 2011

Recent News from Canada

I know nothing about transgender law & politics in Canada (making this post tediously difficult to put together, and, as with all posts, if anyone sees any mistakes, please kindly let me know), but three recent news stories that kept turning up on Google news search results made me curious to know more: (1) A transgender anti-discrimination bill before parliament; (2) a transgender woman from Ireland who sought to claim refugee status in Canada; and (3) a teacher fired from a Catholic school in Alberta for being transgender.

The Federal Government

Canada's Human Rights Law explicitly protects sexual orientation, but not gender identity, from public accommodations discrimination, housing discrimination, and employment discrimination.  Bill C389 sought to add "gender identity" and "gender expression" (right after sexual orientation) to the list of protected categories.  It also sought to make criminal offenses motivated by anti-transgender bias into hate crimes.

The bill was introduced by Bill Siksay, a member of the New Democratic Party from the Burnaby-Douglas riding, in British Columbia.  In his address in favor of the bill, I found this remarkably empathetic insight regarding the psychology of closeted or pre-transition transgender people:

"Transsexual individuals describe their experience in this way. Before transitioning it is like never being able to go home, even while knowing exactly where home is. For some it is the clothes and social gender role. For others it is the body and whether it betrays who we are constantly, every minute, so that no matter how hard we try, we are always lying. There is a great fear and anxiety of accidentally giving oneself away leading to a permanent self-vigilance and second guessing, lest some spontaneous random act gives us away. For some this becomes a constant hiding and cutting oneself off from others."

Bill Siksay's remarks are followed in the record by the comments of Sylvie Boucher. Among other criticisms, she pointed out that anti-transgender discrimination is better treated as discrimination on the basis of sex, and is already being treated as discrimination on the basis of sex by some human rights tribunals, thus making the addition of "gender identity" or "gender expression" unnecessary or redundant:   

"First, I would like to point out that the Canadian Human Rights Tribunal has already studied a number of complaints filed by transsexuals, and it found that these complaints were justified based on the ground of sex.  By deciding that transsexuals are already protected by provisions in federal human rights legislation, the tribunal followed the approach of human rights tribunals in British Columbia, Quebec and other provinces, which determined that discriminating against transsexuals is prohibited based on the current ground of sex."

This idea is also discussed in US court cases--that anti-trans discrimination can be regarded as a form of sex discrimination, rather than an independent form of discrimination on its own, because it's discrimination based on a failure to conform to the stereotypes associated with one's sex (one's birth sex, that is).

A statute with "gender identity" in it or a court case interpreting the word "sex"--what's the difference?  Same result, different routes.  Jillian Weiss, a professor at Ramapo College in New Jersey, has thoughtfully pointed out, however, that the latter implicitly affirms your birth sex as your primary identity.  The law isn't saying you're protected from discrimination because you're a girl who had the misfortune to be born a boy.  It's saying you're protected from discrimination because you're a boy who acts like a girl. Nonetheless, though it may not perfectly match transgender sensibilities, Canadian transgender discrimination law seems far more progressive than most US jurisdictions.

C389 drew the same kind of criticism that transgender rights often draw in the United States--that transgenderism is based on fleeting, arbitrary whims, and that social and legal acceptance of transgender people is the cause or sign of the end of Western Civilization.

In any case, though C389 passed the House of Commons, it did not survive in the Senate.

The Provinces and Territories

Bill Siksay said in his address that Northwest Territories is the only province or territory explicitly to include gender identity in its human rights law.  NT and the others:    

1. Ontario regards anti-trans discrimination as discrimination based on sex, as Sylvie Boucher describes, above.

2. Quebec also regards it as discrimination based on sex.  

3. New Brunswick: I don't know yet.

4. Nova Scotia: I don't know yet.

5. Prince Edward Island regards it as discrimination based on sex:

"This ground refers to a person's biological sex, as well as gender.  Gender is a broader notion that includes the social characteristics associated with each sex.  The Act protects against discrimination based on society's expectations of how women or men "should" dress, behave or act, and includes protection for people who are transgendered and transsexual."
6. Newfoundland & Labrador: I don't know yet.

7. Alberta requires a fee to see its human rights act, but the Alberta Human Rights Commission web site lists "gender" as protected from discrimination, and describes gender as including "transgender".  

8. Saskatchewan regards anti-trans discrimination as discrimination based on sex.

9. Manitoba regards it as discrimination based on sex.

10. British Columbia regards it as discrimination based on sex

11. Yukon: A sexual minority advocacy site say it's discrimination based on sex.

12. Northwest Territories includes gender identity in its human rights act:

"For the purposes of this Act, the prohibited grounds of discrimination are race, colour, ancestry, nationality, ethnic origin, place of origin, creed, religion, age, disability, sex, sexual orientation, gender identity, marital status, family status, family affiliation, political belief, political association, social condition and a conviction for which a pardon has been granted."

13. Nunavut: The Nunavut Human Rights Commission web site says it has never issued any human rights decisions yet (because it's relatively young?)  Therefore, of course, there's been no opportunity to define sex to include transgender people.

Wednesday, April 27, 2011

Dallas County, Texas

There is good news today from Dallas County, Texas.

The Dallas Morning News reports that Dallas County, the Texas county that encompasses the city of Dallas, has voted in favor of including transgender people in its nondiscrimination policy for hiring county employees.

The current hiring policy includes "sexual orientation".  There was confusion about whether that covered transgender people or not.  (The composer of the Maine bathroom bill also confused sexual orientation and gender identity.  See Maine bathroom bill post.)

One commissioner who voted in favor of the new policy said that he had previously believed that "sexual orientation" included transgender people.  Another commissioner said she voted against the new policy because of her continuing belief that transgender people were in fact covered under the "sexual orientation" language.

Here's the policy before being amended:

"Dallas County values the diverse backgrounds, experiences, knowledge and
skills of all individuals, including applicants and employees.  Treating individuals with
dignity and respect is one of our core values.  Our goal is to create and foster a work
environment that offers equal employment  opportunities and fair treatment to all
applicants and employees without regard to race, religion, color, national origin, sex
(including pregnancy), age, disability, sexual orientation or political affiliation.  This policy
includes, but is not limited to, all decisions relating to the employment process (recruiting
and hiring), employment actions, compensation, benefits, disciplinary actions,
application of policies and procedures and any other terms or conditions of employment."

The article from the Dallas Morning News about this vote is here.

Dallas Voice has a video of the commissioners discussing what their votes will be and the vote itself. It's not apparent from the video that the commissioner mentioned above, who voted no, thinks transgender people are covered under the "sexual orientation" language of the policy, as reported in the Dallas Morning News.  You can only hear her say she thinks the "sexual orientation" provision is "enough".

Tuesday, April 26, 2011

Texas Marriage Controversy

There is currently a transgender marriage controversy going on in Texas. 

The story goes like this:

1. In 1999, the Texas Court of Appeals decided Littleton v. Prange.  That decision said that because a male to female transsexual was born male, she was therefore still male, so her marriage to a male was an invalid, because same-sex marriages are invalid under Texas law.

2. In 2009, the Texas legislature amended the statute listing the identification documents you could present to get a marriage license.  One of the documents--"slipped into the list", or "accidentally added to the list"--during the revision process was a "certified copy of a court order relating to an applicant's name change or sex change". (Texas Family Code Chapter 2, Subchapter A, Section 2.005(8) "proof of identity and age")

3. There was confusion over the effect of the revision.  Was it a statutory overriding of Littleton?  If you were a male to female transsexual, could you now get a marriage license to marry a male?  A news story describes a male to female transsexual and her female fiancee.  They were denied a marriage license in one county because the county understood them to be a same sex couple.  Another county, with Littleton in mind, issued them the license. 

4. A bill is before the Texas legislature currently that would remove the words "sex change".

Littleton v. Prange

Littleton v. Prange, 9 S.W.3d 223 (1999) (Texas Court of Appeals).

Summary: Littleton was born male, but had a sex change operation as a young adult. Littleton got married to a male. The marriage lasted six years. The male died. Littleton brought a lawsuit against the doctor who treated her husband, as she was permitted to do as the surviving spouse, under Texas' wrongful death statute.  Doctor moved for summary judgment, arguing that as a matter of law, because Littleton was actually "male", there had never been a valid marriage, and Littleton was therefore ineligible to bring the suit as the surviving spouse. The trial court granted the motion for summary judgment.

Holding: Trial court affirmed. Summary judgment is granted when there are no facts to be determined by the trial court, and the issues present a pure question of law.  Appellant is male. Although appellant has believed herself to be female all her life, and although she has had extensive surgery to alter her body to resemble a female body, all her feminine physical characteristics are entirely man-made by physicians. Legislature has not granted post-operative transsexuals the right to marry as females, and it is not appropriate for the courts to grant them that right, in the absence of legislative action.

Concurring Opinion: Agree with majority decision, but this result may cause difficulties for intersex people.

Dissent: Disagree with majority decision.  Whether appellant is a male or a female is an issue of fact, that should be decided by the trial court, not an issue of law that can decided on a motion for summary judgment.  Court says there's no law on the issue but then says issue can be decided as a matter of law.  Furthermore, majority decision relies on appellant's original birth certificate.  Appellant amended her birth certificate to reflect her new gender during proceedings in the trial court, and the trial court accepted the amended birth certificate.  An amended birth certificate is an official Texas state document, and is like an amended pleading.  Therefore it is inappropriate for the majority to rely on the original birth certificate. 

This case is posted on Google, here.

Monday, April 25, 2011

Maine Bathroom Bill

A Huffington Post blog published comments of the father of transgender middle schooler to the Maine legislature regarding a proposed bathroom law that was intended to force transgender people to use the bathroom of their birth sex.  Impressive points: (1) his response to his child; (2) description of how she was a well-balanced and happy kid until she encountered discrimination; (3) the appropriateness of describing his own journey, as a way to help legislators understand, legislators who unlikely have any direct experience with transgender people.

The (poorly worded) bill:

"It is not unlawful public accommodations discrimination, in violation of [the Maine Human Rights Act], for a public or private entity to restrict rest room or shower facilities that are part of a public accommodation to the use of singlesex facilities to members of a biological sex regardless of sexual orientation. Unless otherwise indicated, a rest room or shower facility designated for one biological sex is presumed to be restricted to that biological sex."

My paraphrase: (1) Bathrooms are assumed to be only for members of biological sex. (2) Owners of bathrooms don't violate Maine Human Rights Act when they limit access to bathrooms based on  biological sex.

The author of bill was confused or wasn't aware of the distinction between sexual orientation and gender identity.

No action on bill yet.

Back story:

1. The Maine Human Rights Commission had ruled in 2009 that a Denny's restaurant had discriminated against a transgender employee by not letting her use the bathroom of her gender identity.  This was written about in a Bangor Daily News article.

2. The Maine Human Rights Commission had ruled in 2010 that Orono schools had discriminated against a transgender child by not letting her use the bathroom of her gender identity.  This was also written about in a Bangor Daily News article

Friday, April 22, 2011

Hawaii and Nevada

1. A transgender anti-discrimination bill, for employment and housing, passed the Nevada assembly last Monday.

2. A transgender anti-discrimination bill has apparently passed both houses of the Hawaii legislature, and is awaiting Governor Abercrombie's signature.  Here's a newspaper article about it. This article says a similar bill was vetoed by Linda Lingle (Republican) two years ago.  Here's the bill itself.

Florida Family Association

A conservative religious political organization called the Florida Family Association is calling for the boycott of companies that advertise on the MTV show Degrassi, because (1) it features a female to male transgender character; (2) it features kissing and physical contact between the transgender character and his girlfriend; and (3) PFLAG runs an ad during the show that encourages kids to contact PFLAG if they think they're transgender.

Isn't Degrassi a CBC show?  Is it being rebroadcast by MTV in the States?

Florida Family Association claims on its website that they were successful in pressuring Sony to stop advertising on Degrassi.  The web site lists other companies that advertise on Degrassi.  Some are: State Farm Insurance, Proctor & Gamble, Kraft, Best Buy, Johnson & Johnson, Kaplan, Mars, Disney, Coca Cola, L'Oreal, Church & Dwight, and Kimberly Clark.