Landmark Court Ruling for Trans Rights in the USA

I often read comments to the effect that the USA is ten years ahead of the UK, but when it comes to the rights of trans people that situation is reversed. In the UK discrimination on the grounds of gender reassignment was made illegal in the Sex Discrimination (Gender Reassignment Regulations) 1999 which has been further strengthened in the Equality Act 2006 by the inclusion of Gender Reassignment in the Gender Equality Duty. And largely the same situation exists across Europe due decisions in the European Courts of Human Rights and Justice.

In the USA the position has been far less clear with a number of state rulings going against trans people and the exclusion of trans people from recent legislation improving the rights of lesbian and gay people. However on Friday all that changed with a landmark ruling in the Federal District Court for the District of Columbia in the lawsuit by Diane Schroer against the Library of Congress. There have been rulings in favour of transgender plaintiffs under the federal sex discrimination statute but the first time a court has ruled that "sex" includes "gender identity." It is likely that there will be an appeal, but legal opinion indicates that this ruling may be difficult to overturn.

My in-box has been filled with comment on this case since the judgement was published on Friday, with a near party like atmosphere in the trans community. This is a hugely important case and will have a significant impact on attitudes towards trans people. I was going to comment earlier but have waited for comment from Jillian Weiss, who is probably the leading expert in workplace rights for trans people in the US. Her comment has been well worth the wait and I highly recommend that you read her post which is a comprehensive analysis of the case and impact of the judgement.

Landmark federal decision on transgender employment discrimination: Schroer v. Billington - Analysis from Dr Jillian Weiss

This CNN Interview with Diane Schroer, conducted before the decision, explains the background to the case and why the decision is so important.



In the UK if a public sector employer had offered a job and then withdrawn it on being informed that the applicant was planning to undergo gender reassignment, it would be a clear case of sex discrimination. Interestingly here, as in the USA, it is religious based objection that is often behind resistance to changes in legislation regarding LGBT people. Ironically Judge Jefferson in this case used treatment of religious discrimination to support gender identity discrimination as Jillian Weiss Explains

"[Judge Jefferson] recognizes that the definition of sex is a hotly contested areas, so he changes gears, and says that it is unnecessary to decide what the scientific definition of sex is. Rather, the only question is what the statutory definition of sex is. And since the Civil Rights Act of 1964 prohibits discrimination based on race, national origin, sex and religion, he analogizes the "sex" claim to the "religion" claim. He notes that no court would accept the argument that discrimination based on changing religion is allowed, even though the statute does not explicitly state this. He also notes that race discrimination has not been limited to exclude discrimination based on interracial marriage or interracial friendships.

So those many courts that have accepted a similar argument -- that sex discrimination is limited to exclude changing sex -- are wrong."

I do urge you to read Jillian's Post - Whilst specifically applicable to the USA many of the principles discussed are universal and provide a good understanding of the fundamental principles of equalities law in practice.

The Real Life Test - Is it really necessary?

Stephen Whittle has posted a very interesting article on the Real Life Test or as he more accurately describes it, the Real Life Experience. This is the requirement embedded in medical practice of treating trans patients that we are required to live and work successfully in our intended gender for a period of at least a year - though 2 years in practice, before we an qualify for surgery. Reading Stephens Article, The Real Life Test: to be or not to be, that is the question has challenged my own thinking on this. Should there even be a requirement for "living in role?"

I suppose the difficult questions is whether a trans person should be entitled to surgery even if they are unable to cope with living publicly in their acquired gender. I have come across a small number of trans women who feel they should be entitled to have the right body even if they continue to present a largely male gender. I was recently consulted by a leisure centre faced with a dilemma. A trans woman who presented in their view as male and is preoperative, wanted to use the female open changing facility. They offered her access to a disabled changing facility where she could change in private which she accepted, but she has subsequently returned and asked again to use the female facilities.

Our laws here in the UK permit a trans person to legally change gender without having surgery - and this is often the situation with trans men where surgery is less satisfactory. So if it is OK for a trans man to have a vagina - then surely it is OK for a trans woman to have surgery and still present as a male - especially if it is very difficult to pass. If you are over six foot, with little hair and a very masculine build it is always going to be difficult to pass. But should the reconstruction of our bodies be in anyway linked to the presentation of our gender?

On the other side, of the argument, if it is important for a trans person to be accepted in their correct gender, having surgery is not going to change the way we are treated most of the time. If I do not present a gender expression that other people see as female then I will be treated by many as "different" and will likely be subject to a degree of discrimination even humilliation. We can change all the laws we want - but it will not stop people from treating me inappropriately, just as disability, age, race and other discrimination laws do not stop the issues from happening.

It seems to me that the primary reason for the RLE is to reduce the likelihood of someone suing the medical profession if they change their minds and claim that the doctors were wrong to agree surgery. This has been aggravated by the case of Charles/Samantha Cane. Cane was able to a degree to circumvent the RLE rules because he could afford to. He made a lot of money also from a book and film about his experience then changed his mind, destroyed the career of a leading gender Psychiatrist who was seen to have supported surgery to easily, Fear of litigation is in my view the primary motive for the RLE, although the general social pressure to fix everyone clearly into the gender binary is also a problem.

I have a gender recognition certificate but I am still pre-operative - largely because of the huge waiting lists for surgery but also because I was not in a hurry for surgery - I was more interested in tackling the social challenges and gaining public acceptance as a professional speaker. When I finally got to the gender identity clinic, I was told I wold need to complete two years RLE. When I pointed out that I had already done three years and that my driving license and passport proved that, I was informed that didn't matter I had to do another two years supervised by them. That has now dragged out to three years, mostly because I have not appeared to want it urgently enough which I think they measure by evidence of self harm attempted suicide depression etc.

A friend, who for a variety of good reasons lives in both genders has been refused a referral to the gender identity clinic because she is happy to work as a man (she finds it pointless putting on a wig and make up to do what can be quite mucky manual work work.) Essentially they decided that she would be unable to complete the RLE so refused any treatment.

As I have written this article I have discovered that I really do not have a totally clear view on this myself, but that I am certain that the present policy around the RLE is not right. It is based on a presumption of a sterotypical norm for gender presentation. In order to secure the surgical and hormonal changes that will enable us to reconcile the mismatch between our physical bodies and out gender identity, we are forced to comply with a gender norm, after which we are then free to express ourselves anyway we want. This is exactly what a number of my trans friends have done, settling eventually for a largely androgynous gender presentation, but happy with the sence that they do now have the body they felt they should have been born with.

I think reflecting on this that the real focus should be simply to help trans people to cope with being who they are, not in making them tr to be who society wants them to be. Then perhaps we should be trying to do that for everyone.

Rikki
www.gendershift.com

Sex and Power 2008 - Report from EHRC

The Equalities and Human Rights Commission have released their first Sex and Power report for 2008. This report was originally produced annually by the Equal Opportunities Commission and due to the merging of the EOC into the EHRC last October, the 2007 report failed to materialise.

Unfortunately the news from the report is not good showing that fewer women now hold top posts in most of the measured categories than in 2006, and that at the present rate of progress is will be 200 years before women have equal representation in parliament. This is a short video from the Equality and Human Rights Commission discussing the report.




Reading the comments made on the Independent Online site shows that this is still a topic that inflames passionate debate and which draws out strong sexist comments from both men and women. (scroll to the bottom of the Independent article for comments if you follow the link above)

There is no doubt that if there are men in power who believe, as some commentators do, that men are essentially better at leadership than women - then equality will take a long time. Having been in positions of leadership as both a man and as a woman perhaps I can inject a different perspective.

My experience and study suggests not that men are better than women, but that women tend to do leadership differently. Unfortunately because men have monopolised power and leadership for the past few thousand years, there is a tendency to measure leadership by a male model - ie a hierarchical model of command and control.

My studies suggest that women are more inclined to what I would describe as a networked model, where women seek not to be at the top of an organisation but rather at the centre of it. This different approach to leadership which I have attempted to introduce into GenderShift is not easy to work with because of the tendency of competitive people, primarily men in my experience, to try to take over.

Regrettably the EHRC appear to have decided to discontinue what I consider to be a more useful and interesting publication - Facts about Women and Men in Greater Women. This publication now two years old provides detailed statistics about underlying inequality highlighting the real causes of the problem - pay and employment inequality.

However I believe the fundamental cause of the power inequality is that men tend to be more competitive where women tend to be more collaborative. It is for this reason that many women drop out the power struggles in public life to run their own organisations on a more networked and collaborative basis, hence the steady growth of women owning their own businesses.

The difficulty with understanding any of this is that the moment anyone defines gendered behaviour someone will highlight an exception. Which leads us to needing to understand that masculinity and femininity are not necessarily tied to male and female bodies - which every trans person knows.

Rikki
GenderShift