"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, June 18, 2011

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.

Friday, June 17, 2011

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.  

Wednesday, June 15, 2011

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.

Monday, June 13, 2011

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).

Saturday, June 11, 2011

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.  

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

Friday, June 10, 2011

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. 

Thursday, June 9, 2011

Tuesday, June 7, 2011

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.)    

Friday, June 3, 2011

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.

*           *           *

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.