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| Pending US Rights Legislation and Post-op Transsexuals |
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| Opinion - Looking Glass | |||
| Sharon Gaughan | |||
| Tuesday, 20 October 2009 15:00 | |||
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Fairfax, VA, USA. We find ourselves swimming in an alphabet soup of heightened expectations in what appears to be a favorable political climate. [N1] Democrats have several legislative proposals pending, but they control the presidency and both Houses of Congress. The texts and specific provisions seem agreed upon, with all but minor changes expected, even when the House and Senate versions are reconciled. Characterized by most as LGBT initiatives, the legislative provisions — whether enacted and signed into law or not — will affect every current and potential post-operative transsexual. What could possibly go right? I ask the question that way since in the legislation is constructed to first serve gay and lesbian interests, followed mostly by the inclusion of transgender loose ends. The LGBT packaging obscures the issues that affect transsexuals. An increasing number of us reject the Big T in LGBT, but we do have to recognize that actions are (or will be) taken on our behalf whether we like it or not. One of the strange problems that falls out from this is how to reconcile references to sex and gender identity in the same legislation: same "sex gender identity" marriage? Here comes everyone!Transgender activists do not mention transsexuals much in the debates around these issues, mainly because they have no real idea of who we really are. The muddy part is the use of the terms transgender and gender identity in the legislation. This means post-ops can support or oppose: same-sex marriage, homosexuals in the workplace or military, and a plethora of other issues. Moreover, the real deal pre-ops are much the same way, though a lot more uniform in their outlook until they flourish after correction. Of course, we do not actually know how many post-ops there really are: wildly varying estimates are the norm. Every time someone tries to get a fix on the number, process flaws doom use of the estimate. Whether it be over-reliance on self-reports from those who claim to be transsexual during the pre-op period, or ignoring statistically reliable sampling of the post-op population, the final number eludes us. Worse, this means that a Experience and my personal observations suggest that we are more rare than the most hopeful among us suppose. Perhaps we are rarer than can be supposed at this point. I will have more to say about this in a future column. However, for our purposes here, we can address the impact (and shortfalls) of the proposed legislation (however many of us there may be). What follows is a discussion of the four major rights initiatives now before Congress. One of them, dealing with partner benefits and taxation, span several different laws. I have consolidated them into one topic for convenience. I describe each initiative in turn, along with my personal analysis of what they can do for us — and what they can not, followed by a bottom line discussion of the quandry provoked by legislation advertised as LGBT. I invite your comments. Employment Non-Discrimination Act (ENDA)There is no federal law that specifically requires equal treatment for either transgendered or transsexual people in the workplace. So far, the courts are generally consistent in their refusal to expand their interpretation of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. [N2] However, both enforcement actions and court deliberations increasingly take into account the status of transsexuals who have fully transitioned through surgical correction. Various versions of the Employment Non-Discrimination Act (ENDA) have been introduced in every Congress (except the 109th) since 1994. The 2008 elections strengthened the Democratic majority, and after the debacle of the 2007 ENDA divisions when transgender provisions were dropped for lack of support, only a transgender-inclusive ENDA has been introduced this time. The current proposal would prohibit discrimination against employees on the basis of sexual orientation, gender identity, and disability for civilian nonreligious employers with over 15 employees. President Barack Obama supports the current bill's passage and there appears to be enough legislative support for passage in the House and possibly the Senate. The provision that specifies gender identity is what makes the current ENDA incarnation "inclusive" but also causes the greatest concern when coupled with a trend by TG activists to base their claims of sex on gender presentation.
Many post-operative MtF transsexuals have wondered how ENDA would actually apply to their situation, given that sex discrimination law already applies to them. However, the commonly accepted legal definitions of sex have become obscured with the rise of transgenderism and individuals who lay claim to being transsexual while avoiding the specifics of full transition, including full time life, hormonal reconstitution, and corrective surgery. Others express alarm at being categorized as "transgender" in any case. However, there are situations where ENDA and the language in Section 3(6) would offer additional protection to post-ops. A visitor reviewed an earlier version of this essay and noted cases where an employer finds a mismatch between a person's current claims (as a post-op) and birth documentation. For more on this, see the comment below: I can think of a couple ways in which ENDA would offer additional protection to post-ops (by "dianakat"). I support the ENDA provisions related to sexual orientation and disability as a matter of simple justice. Employers of all types — governmental, non-profit, and private — receive a variety of benefits funded by all of our citizens. The benefits include varying degrees of relief from taxation and liability protection in the marketplace. Gay, lesbian, and disabled citizens are no less worthy of protection from discrimination in employment than anyone else. Post-op MtF transsexuals already have this protection under Title VII, which can be extended to the situation of FtM transsexuals who do not yet have access to a mature suite of surgical corrections. They should not be penalized for the lagging state of the art if they have otherwise transitioned. Genuinely pre-op individuals are not specified, but should be, allowing for a stopgap solution during transition. After correction, they are subject to Title VII. The case of transgenders is far more problematic. What exactly is their specific need? Will passage of ENDA mean large numbers of them will come out, transition to full time living as males presenting as females, and enter the workplace as Bob the cross-dresser? I think not, but the bigger issue lies in the lack of a crisp definition for either transgender or "gender identity". I suspect the courts will interpret the "gender identity" provision as overly broad, risking judicial nullification if the law isn't properly structured for separability. Military Readiness Enhancement Act (MREA)DADT, or Don't Ask, Don't Tell, is the common term for the current policy regarding gays and lesbians serving openly in the U.S. military. It was mandated by a federal law and came about as a compromise measure approved by President Bill Clinton in 1993. [N3] In brief, these are the provisions:
The "don't ask" part of the policy indicates that superiors should not initiate investigation of a service member's orientation in the absence of disallowed behaviors, though mere suspicion of homosexual behavior can cause an investigation. Clinton had promised during his presidential campaign to allow all citizens, regardless of sexual orientation, to serve openly in the military, sihnaling a complete departure from the outright ban then in place. Clinton accepted DADT, but has since switched back to his original position, saying the compromise was a "mistake". With regard to post-ops, there are no specific provisions in either law or policy, existing or proposed, but any such cases are likely to be argued on the basis of sex discrimination anyway. Members of a military service already on duty who transition are a different matter, given the cultural norms that exist within the military. Some individuals have been "encouraged" to leave the military upon disclosure of their plans. Authorities most often cite "disruptive" behavior or tie transsexualism to sexual orientation. My partner and I both have extensive experience with the military. It is not a sports team or social club. It exists to protect the nation, so policies should be drawn to increase efectiveness while respecting constitutional values. The rational way to look at this is as one would evaluate the impact of any medical condition on readiness. We know that in decades past military personnel were routinely discharged as unfit for duty if they developed a serious medical condition. These days, it is much more common to accept continuous service: I know of females who had breast cancer, a soldier with one leg, and others with ongoing medical issues that would preclude combat. But — they can still make a contribution to national defense and remain on duty. Why not transsexuals on the path to surgical correction? If they can do the work, they should stay.Respect for Marriage Act (RMA)The Defense of Marriage Act (DOMA) is a federal law of the United States which was passed by Congress and signed into law by President Bill Clinton on September 21, 1996. [N4] The Respect for Marriage Act (RMA) repeals DOMA and establishes (some say restores) the rights of all lawfully married couples, including same-sex couples, to receive the benefits of marriage under federal law. The current law, DOMA, has two effects:
At the time, Hawaii (and possibly other states) seemed ready to legalize same-sex marriage via legislation or judicial interpretation of existing statutes and/or constitutional provisions. Both supporters and opponents of federal recognition forecast the recognition of such marriages by other states under the "Full Faith and Credit Clause" of the United States Constitution. Post-operative transsexuals were largely ignored in these very public debates, but not totally unaccounted for. As early as 2003, Mark Strasser of the Capital University Law School (Columbus, Ohio) published a specific analysis of the situation, noting the "differences among the states with respect to how to define sex" and citing the lack of clarity in DOMA regarding transsexuals and the validity of planned or existing marriages under Full Faith and Credit. He argued it was a matter for the U.S. Supreme Court. [N5] Federalists were faced with what many saw as a conflicting problem. They argued that the federal DOMA was unconsitutional but thought that declaring it so would open the door to a risky social experiment. [N6] Their solution was a return of the question to the states for separate action, a trend that took hold and is the dominant position today. Some transsexuals were already married before transition and managed to mantain their relationship, but do so without explicit protection and recognition in our tax codes. Many heterosexual and post-op transsexuals go ahead and get married, despite the ban, but justifiably worry whether their marriages will be nullified if wrongly interpreted as same-sex. The compromise position here is to permit some form of civil unions. Trouble is, all such arrangements have proven inconsistent at best, with provisions that vary from state to state, complicating any attempt to apply full faith and credit. TS-Si posted a well-received editorial on this subject, The Overlap Between Civil Unions And Religious Marriage, that called for separation of the functions of state (civil unions) and religion (marriage), a position reinforced by Frank K. Flinn in his column Marriage vs. Civil Unions. It seems likely that such a step would be misunderstood and deemed too radical in today's cultural climate. In the meantime, state laws and constitutional provisions vary widely, mostly against same-sex marriage. The broad cultural range among post-op transsexuals comes into play at this point. Public comments and our own mail tell us there are significant differences on this subject among heterosexual post-ops. This does not surprise me, as we are everyone and I expect a diversity of views. Personally, I favor legalization of same-sex marriages, but understand the secular objections recorded by others. Those viewpoints mainly stress social disruption and the possible social pressures on the children of such unions. I find those arguments very near-term in their nature and unpersuasive given that informal same-sex unions have been underway for decades with good results. Outright religious objections, mainly from fundamentalist sects, have no effect on me, based as they are on a non-rational argument that ignores civic values and cooperation. I support passage of RMA and repeal of DOMA as a matter of principle and practicality. First, it is a matter of simple justice that all citizens have the same rights and responsibilities. Banning same-sex marriages puts gay and lesbian citizens in the same category as the mentally infirm. Even prison inmates can get married if they declare themselves as heterosexual! From a practical standpoint, heterosexual post-ops should consider the needs of their family members, particularly their gay and/or lesbian children. Domestic Partnership Benefits and Obligations Act (DPBO); Tax Equity for Domestic Partner and Health Plan Beneficiaries Act; Tax Equity for Health Plan Beneficiaries ActThe Domestic Partnership Benefits and Obligations Act (DPBO) [N7] and related legislation are proposed in the United States Congress that would allow federal employees to give their unrecognized same-sex spouses and partners the same benefits that are increasingly common in the private sector while ensuring equal tax treatment. A significant portion of employee compensation consists of such benefits, including health and life insurance, pensions, and other employment-related benefits and obligations that married heterosexual federal employees enjoy simply by being married and heterosexual. The existing ban writes off a significant percentage of the recruiting pool of potential employees since the federal government does not offer the same benefits to lesbian and gay workers with partners. Many of those workers, both in and out of the government, are post-op transssexuals who are not in heterosexual marriage relationships, but are in gay or lesbian partnerships. The proposed law does not specifically mention post-op transsexuals, nor does it really have to since sex discrimination policies and laws are adequately enforced. I would extend benefits when a pre-op is on the road to correction, ensuring adequate employment support during transition. To me, this is a matter — again — of principle and pragmatism. Transsexuals and GLBT PackagingAll four of the major rights initiatives now pending in Congress are presented to the public as GLBT initiatives. There is slim mention of people born classic transsexual. When pressed, the Human Rights Campaign (HRC) and TG activist organizations simply say we are "covered". But that is a refrain we have heard before and transsexuals are understandably wary of such thin assurances. For post-ops, the main beneficiaries are those who are in committed same-sex partnerships. However, all of these initiatives need sharp language that specifies application to pre-op transsexuals in transition toward surgical correction. The muddy part is the use of the terms transgender and gender identity in the legislation. I know many readers object to the transgender packaging and — most especially — the use of gender identity to describe everyone when the phrase means nearly nothing. Even so, there they are in the proposed legislation, feeding into congressional debates and news reports. I referred earlier to the overlapping and confused references that conflates to sex gender identity. If any of this legislation passes, the courts will have a grand time sorting out what it all this means in actual practice. Notes[N1] Yes, I know. To use an overworked term, I have conflated the phrase people born transsexual with classic transsexual. And why not? In my mind, they are one and the same. I could figure out how to add in Harry Benjamin Syndrome (HBS) or a similar proposal for medical recognition, but prefer the medical profession get around to making some sense on this issue.
[N2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2000). [N3] P.L. 103-160 (10 U.S.C. § 654). [N4] The Defense of Marriage Act (DOMA) was passed on 21 September 21 1996 as Public Law No. 104-199, 110 Stat. 2419. The law's provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. [N5] Marriage, Transsexuals, and the Meaning of Sex: On DOMA, Full Faith and Credit, and Statutory Interpretation. Mark Strasser. Houston Journal of Health Law and Policy 2003; 3(301). This article dates from a period when the Journal was exclusively available in a print edition. Abstract Recent high-profile cases regarding the validity of marriage involving transitioned transsexuals highlight the differences among the states with respect to how to define sex. In some but not all states, transitioned transsexuals may marry individuals of their chromosomal sex. Potential difficulties arise when transsexuals who have validly married in one state wish to travel through or move to another state, since it is not clear whether those marriages must be recognized. It is also unclear whether the Defense of Marriage Act speaks to this issue and, if so, what it says. Ultimately, the Court will have to address these issues. [N6] Same-Sex Marriage: Commit It to the States. Michael S. Greve. American Enterprise Institute for Public Policy Research: AEI Online (2004). [N7] (S. 1102, H.R. 2517)
 Ms. Sharon Gaughan is a Co-Founder, Principal, and Managing Editor of TS-Si. She also is a columnist for the TS-Si website. Sharon's signed articles contain her own opinions and do not necessarily convey an official position of TS-Si, its partners, or affiliates.Sharon welcomes your comments. You can reach her via the public form below, her TS-Si Contact Page, or on Facebook (Sharon Sinead Gaughan).
 The TS-Si News Service is a collaborative effort by TS-Si.org editors, contributors, and corresponding institutions. Sources can include the cited individuals and organizations, as well as TS-Si.org staff contributions. Articles and news reports do not necessarily convey official positions of TS-Si, its partners, or affiliates. We welcome your comments. Use the form below to leave a public comment or send private correspondence via the TS-Si Contact Page. We will not divulge any personal details or place you on a mailing list without your permission.TS-Si is dedicated to the acceptance, medical treatment, and legal protection of individuals correcting the misalignment of their brains and their anatomical sex, while supporting their transition into society as hormonally reconstituted and surgically corrected citizens.
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