Transgender Women and Gender Stereotypes

Want to get your nails done? What color do you want? Golden peach? Magic purple? Peacock blue? A neutral cream color for a minimalist look that says "demure"? How about different shades for different seasons? Metallics are nice. A pedicure to go along with your manicure? Mani-pedis are stress relievers, aren't they? How about a polish that changes color in sunlight? Maybe you'd like some nail stickers, too? Purple butterflies? Milky off-pink flowers? Zebra stripes? A hatched pattern of diagonal lines?

Whatever you want! It's up to you! Unless you're a transgender woman, because that's engaging in gender stereotypes, and gender stereotypes are wrong.

How about your hair? Want to get your hair done?  Bangs? Beehive? Bob? Bouffant, braid, or bun? Layered? Feathered? Long and straight? Short and curly? Page boy? Perm? Pigtails? French bob? Pixie? Experiment with the one that's right for you. What face shape do you have? There's an alluring hairstyle that's just right for your face shape. How about hair coloring to go with your cut? What color do you want? Ruby fusion? Chocolate cherry? Light brown? Light blonde? Off brown? Deep black? Cover up the gray?

Whatever you want! It's up to you! Unless you're a transgender woman, because that's engaging in gender stereotypes, and gender stereotypes are wrong.

How about some clothes? Where do you want to shop? Forever 21? Target? Wal -Mart? JC Penny? Urban Outfitters? Go Jane? Old Navy? Nordstrom? Lord & Taylor? Kohls? Macy's? What kind of clothes do you want to buy? Tank top with embroidered roses across the front? Strapless dress? Pinkish maroon sleeveless tee? Tube skirt? Little black dress? Tight jeans with heels and no socks? Pastel skinny jeans? Pullover with a miniskirt? Chiffon blouse?

Whatever you want! It's up to you! Unless you're a transgender woman, because that's engaging in gender stereotypes, and gender stereotypes are wrong.

Skirt Dancing Craze

I came across this news article while randomly searching the New York Times archive.

The article, dated Febuary 19, 1895, purports to describe a female impersonation fad among young men or teen-agers at schools in New York City--first, at Columbia College, then at Adelphi Academy and "the Polytechnic", both private schools. 

According to the article, female impersonation was in "periodic vogue" at Columbia College, until the officials of the college put a stop to it "on the ground that the exhibitions were not manly". The students at Adelphi had organized an acting club and were going to put on a play called "The Proselytes", set in Salt Lake City, with the male actors playing "Mormon damsels". The article even lists the names of the actors and the names of the characters they would play. 

The characters' names are fantastic: Letta Goe, Ida Lovemelittle, Virginia Creeper, etc.

Two features of the article stand out. The first is that military training is thought of as as a solution (along with corporal punishment). The article compares the boys' behavior with those of boys attending public schools, who were going to do some sort of military training. A "well-known citizen", quoted at the end of the article, says he would not object to seeing his son in a soldier's uniform, but would object to his son dressed women's clothing.

I had a slightly similar experience. When I was a tween, I enjoyed reading books with female main characters. When my parents became concerned, I was allowed to read books about military history, but not fiction books with female heroines.  

The second feature that stands out is what the "well-known citizen" says. It's true that he says he'd take a "lath" to his son were he to catch him dressed as a woman and it's also true that he says he wants the wearing of gendered clothing to be strictly enforced. Nevertheless, I sense, in his comments, a less-than-absolute view both on the genderedness of a piece of fabric and on what it means when a male wears clothes traditionally associated with women. It's barely detectable. I could be misunderstanding what he says, or making too much of nineteenth century styles of expression, or giving too much weight to how he prefaces his point, but it's almost like a fleeting glimpse into an innocent pre-fallen world lacking both  gender role enforcement and gay theology's boxes and labels.  See for yourself:

I do not believe in this kind of a show. It may be pretty, it may be popular, it may be artistic, and it is certainly a clever delusion. Nevertheless, it does not put the students in a manly light. There is something distinctly effeminate in the spectacle of a boy in girl's clothing. 

If I caught my boy in short skirts, I'd warn him with a lath. He wouldn't need any rouge on his cheeks for a time, at least, nor would he be able to do any high kicking right away. Skirt dancing was stopped on the part of the students at Columbia College, and I think the City of Churches is a poor place for the craze to be transplanted to. 

Which looks more manly and appropriate on a young man, short skirts or a soldier's uniform? I would not object to seeing my son in a soldier's uniform, but as for short skirts, let their use be strictly confined to the other sex, and I believe most Brooklyn parents feel as I do on this subject. 

Wearing opposite sex clothing? Clothes not being absolutely associated with one or the other gender? The "well-known citizen" has strong feelings about these, but does concede that they're debatable topics. Amazing. 

Notes: The "City of Churches" is a nickname for Brooklyn, according to the Internet.  The dictionary says that "proselyte" means "convert".

Tragic Death of Bert Savoy

Bert Savoy, a famous female impersonator during the nineteen teens and early 1920s, was killed by a lightning strike while on the beach at Long Beach, Long Island, New York, according to a news article dated June 27, 1923:

The death of Savoy shocked the Rialto. For eight years he had been a member of Savoy and Brennan, one of the best known present day vaudeville teams in the country and had drawn the plaudits of thousands of theater goers from coast to coast for his clever female impersonations. He also had been one of the star attractions of the last "Greenwich Village Follies".

Defintions:

Plaudit: acclaim, enthusiastic approval.

The Rialto: the Broadway theater district of New York(?)

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.