Recently, Jennifer Levi, an attorney at New England’s Gay and Lesbian Advocates and Defenders wrote a piece for Pam’s House Blend on Connecticut’s recently enacted nondiscrimination law, which bans discrimination based on “gender identity.” She wrote the article to counter allegations that “some people were saying that the language ‘sold out the non-transsexual part of the community,’ by requiring evidence of medical transition” and “others (who) said it was introduced by some segment of the feminist community to limit the scope of the protections.”
Egads! Rest assured, we would not believe it if GLAD did anything at the behest of the “feminist community.”
Echoing the meaningless definitions adopted by the 14 other states that have implemented “gender identity” discrimination protections, the Connecticut law defines “gender identity or expression” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”
Reference to sex stereotypes? Check.
Lack of concern for female reality? Check.
Now, the Connecticut definition goes further, and this is where things get interesting. The definition suggests some ways in which a plaintiff asserting “gender identity” discrimination could demonstrate that they fall within this now-protected class of persons: “by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.”
Let’s break that down into smaller chunks. The aggrieved party can demonstrate their “gender-related identity” by showing evidence of ONE of the following:
- Medical history, care or treatment of the gender-related identity
Ok, great. A reasonable interpretation of this would probably include diagnosis of gender identity disorder, such as found in the DSM, and/or a transsexual medical condition as defined by the American Medical Association. Presumably, this means showing that one has sought medical care and treatment for the purpose of living as the sex opposite one’s “physiology or assigned sex at birth.” Requiring evidence of medical treatment is a reasonable and necessary legal restriction on the assertion of gender identity as a basis for discrimination. We support the inclusion of this language.
- Consistent and uniform assertion of the gender-related identity
An optimist might suggest this is intended to mean living full-time as the preferred “gender” (how people present themselves so that others perceive them to be one “sex” or the other). Yet, if that’s what is meant, that’s what should be said. For example, the United Kingdom’s Gender Recognition Act of 2004 specifies that a person applying for a change in gender must “have lived fully for the last two years in your acquired gender.” The wording in the UK law is much clearer that the Connecticut language and even specifies duration, a factor significantly lacking in the Connecticut legislation. To prove a “consistent and uniform” gender identity, a male person might provide evidence that he or she wears a dress every weekend. Or how about a note from a friend or family member explaining that for the past 5 months the petitioner has pretending to “be a wo/man” around the house? In the absence of written evidence, maybe sworn testimony would do? If medical treatment isn’t required, “evidence” can take many forms.
We’ve seen this kind of language spring up in other places, most notably in Maryland, where the Senate Judicial Proceedings Committee amended the overbroad definition of gender identity in House Bill 235 to require “consistent, public manifestation” of the gender-related identity. Note the word public. That means that the gender expression cannot be one that is only enacted in private contexts, such as in private homes and at private clubs. (As a side note, we hope and expect that the “gender identity” bill introduced in 2012 will start with this language).
- Any other evidence that the identity is sincerely held, part of a person’s core identity, or that the person is not asserting such an identity for an improper purpose
This final part of the “gender identity” definition means that if your preferred “gender identity” represents a sincerely held belief or part of your core identity, you can assert protection from discrimination based on “gender identity.” In light of the way in which gender has been framed as essential to the self, yet nothing essential is required to assert the identity, it would be a difficult, if not impossible, to show that one’s asserted “gender identity” is a sham. This language renders the requirements for medical evidence or consistent presentation moot.
And what about that “improper purpose” language? What does it mean? Lying about your “gender identity” would be improper, but how would one prove that? A lie detector test? Would it constitute an improper purpose for a convicted male sex offender to assert “gender identity” in order to gain access to female sex-segregated space? Without a discussion of what this means in the legislative history, we have no idea – but rest assured, this language is essentially meaningless until a court or regulator fleshes it out.
Ok, so, we’ve dissected the Connecticut definition of “gender identity.” What Jennifer Levi does next in the post on Pam’s House Blend is astonishing. Jennifer Levi elevates “gender identity” to religion:
The good thing is that the language that was ultimately adopted has some pedigree. It comes from the religious discrimination context where courts have established an important principle. The principle is that no court should be diving deeply into a person’s faith tradition or spiritual beliefs or contradicted them when asserted. If you say that you can’t go to work on Sunday mornings because of your religion, no court can say otherwise simply because some religious entity, organization, or
founding body contradicts you. If you say it’s a religious commitment for you to wear a head covering, no court can say that the mother church (or temple) doesn’t require it. Religion is an internal matter. You are of the faith you say you are. No civil entity (as opposed to a religious one) can question what you say is your religious identity or faith tradition.
That is the same principle that has now been written into Connecticut law. Your gender identity is what you say it is. As long as you are not asserting your gender identity in a particular context for improper purposes, you are who you say you are. No one else gets to say that you must pass a biological or other litmus test before your gender identity has to be respected. Nor should they be able to.
That’s right – “gender identity” is analogous to a religious belief! We are worshiping at the Church of Gender, people. Now, as someone raised Roman Catholic, I am pretty sure that the religious people would not take this equation of “gender identity” with “religious belief” too well. The analogy is dismissive of the ethical foundations of organized religion. Indeed, freedom of religion is a constitutionally-protected right – a bedrock right on which this country was founded. Do GLBT organizations like GLAD seriously want to claim that one has a foundational right – equal to freedom of religion – to assert a “gender identity?” If I were in the business of making analogies to constitutional rights, one’s right to “gender expression or identity” seems more akin to one’s right to free speech – but that might require recognition by “gender identity” proponents that it’s not critical to one’s core identity but is, in fact, merely a way of expressing one’s self. Additionally, “gender” is not spiritual practice; gender is the celebration of sex roles that have served to oppress females. Female subordination as the “second sex” is enabled by our commitment to dichotomous sex roles that value certain traits in one sex more than the other. (Yes, that’s the binary.) Only by destroying these sex-based stereotypes will any of us find freedom of expression.
Although religion may be an internal matter, the expression of gender is not. Gender is demonstrated by appearance and behavior – social interactions, in other words. Trans* people usually require those around them to make significant changes in interpersonal communication, under pressure of being accused of insensitivity and even hate if we don’t comply unconditionally, in order to accommodate the internal gendered feelings of any given trans person. Unlike religious expression, which can usually be avoided in the absence of proselytizing, gender expression is a publicly unavoidable matter. From pronouns to bathrooms, “gender identity” requires others to suspend disbelief regarding the physical and lived social realities of sex-assigned-at-birth and, at the same time, alter their customary social behavior.
The analogy between religion and gender is not sustainable beyond the desperate desire of entitled cross-dressers to claim that wearing a dress actually changes their sex. And then to have this delusion supported as if it were religiously protected speech under the First Amendment! Did you hear that? GLAD would like males to be able to demand entrance to female-only space on the basis of a “sincerely held belief” that their gender identity is female/feminine, and for this belief to be considered as sacred and legally untouchable as a religious practice, such as a Muslim’s duty to pray or a Jewish person’s observance of the Sabbath.
One other note – GLAD reports that “attempts to amend the bill to exclude bathrooms, locker rooms and boarding houses failed.” The law is inclusive of these contexts and does nothing to address the reasonable public policy behind sex-segregated facilities. So, ladies, be prepared for individuals’ Internal Gender to trump your biological sex.
We remain convinced that responsible advocates of “gender identity” should advocate for legislation that includes objective definitions of “gender identity” that will protect the individuals we want to protect – actual trans* people. That GLAD and other organizations continue to advocate for overbroad definitions of “gender identity” – no matter how cloaked in objective-sounding language – speaks to their priorities – which do not, it seems, include female safety and female rights to sex-segregated space.
Elizabeth Hungerford and Cathy Brennan jointly wrote this blog post.