“It is inaccurate to conflate sexual orientation with gender nonconformity, and such semantic sloppiness has no place in the law…”

These are the wise words of Ilona Turner, Legal Director of the Transgender Law Center, from her 2007 law review article entitled Sex Stereotyping Per Se: Transgender Employees and Title VII (95 Cal. L. Rev. 561 (2007))I must admit, I whole-heartedly agree.

Just as it is inaccurate to use “gender identity” as a replacement for sex, homosexuality and gender non-conformity–though both violations of heteronormative maxims[i]–are not the same. A person may be homosexual, but gender conforming. Or she may be gender non-conforming, but heterosexual. These characteristics often co-exist, but they are in no way causally related or interdependent. Among other differences, one is a private sexual preference that must be disclosed (see: the proverbial closet); the other manifests externally and is publicly observable.

Unfortunately, trans activists have taken a clumsy and consistently overbroad but underinclusive legal approach to addressing discrimination faced by gender non-conforming individuals.[ii] I say overbroad because “gender identity” protections currently cover individuals such as weekend cross-dressers and convicted male sex offenders[iii] who get off on pretending to be women; and they are simultaneously underinclusive because “gender identity” statutes fail to protect gender non-conforming people who do not wish to claim an abberant “gender identity,” including Darlene Jespersen and Ann Hopkins. This improperly tailored situation has developed despite the quantity and impressive professional quality of legal therorists made available to the “trans” cause through major gay and lesbian-funded organizations. Still, unchecked semantic imprecision has resulted not only in poorly defined “gender identity” protections literally written to override another legally protected class (sex), it has also resulted in “gender identity” being inappropriately shoved into the sexual orientation protections of these six states:

  1. Colorado
  2. Illinois
  3. Maine
  4. Minnesota
  5. Oregon
  6. Washington

By my count, this is more than a third (1/3) of the total seventeen (17) states lauded by organizations including the National Center for Lesbian Rights as being jurisdictions with explicitly transgender-inclusive nondiscrimination laws.

Here’s a 2005 example from Maine:

Sexual orientation” means a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.

In effect, a heterosexual person seeking legal protection from gender-based discrimination would be required to describe her claim in terms of “sexual orientation.” That is both absurd and incorrect.

A “kitchen sink” strategy that includes “gender identity” under sexual orientation protections is hasty/lazy, exposes claimants to potentially bizarre judicial interpretations, and flies in the face of our legal system’s time-honored value of terminological exactitude. Even Ilona Turner should be able to agree with that:

“It is inaccurate to conflate sexual orientation with gender nonconformity, and such semantic sloppiness has no place in the law…”

Once again, I urge trans activists, organizations, and legal theorists to take a closer look at the significant ambiguity and practical confusion created by their current “gender identity” tactics. Semantic sloppiness must be acknowledged and eliminated; not ignored or, worse, celebrated as a victory for “human rights.” Gendered self-perception should never override objective sex, nor become a definitional substitute therefor.  Similarly, sexual orientation should never be confused with gender identity. I sense a pattern that I do not like! At all.

See the chart below for the exact language of the haphazard laws passed in the six states named above, including citations and web links.

______________________________

up[i]The destruction of heteronormativity’s behavioral mandates based on sex should be the common, unifying political interest between homosexuals and trans people. Unfortunately, many trans people seek to confuse sex with gender, rather than revealing gender as a patriarchal hoax.

up[ii] See Jennifer Levi’s discussion of over and under-inclusive laws starting around page 158 in The Cross-Dressing Case for Bathroom Equality, 34 SEATTLE U. L. REV. 133 (2010). AND! Levi’s admission that non-transgender litigants like Jespersen are excluded from “gender identity” protections in Clothes Don’t Make the Man (or Woman), But Gender Identity Might15 Colum. J. Gender & L. 90 (2006). See specifically, the LESSONS TO BE LEARNED AND APPLIED on page 110.

up[iii] Excluding Massachusetts and Connecticut, all states with “gender identity” laws have failed to specifiy any evidentiary or consistency requirements for individuals claiming protection from “gender identity” discrimination. They also failed to create an exclusion for “improper purpose”– a provision which will now have to be litigated (by females?) in order to determine its practical meaning. I call that burden-shifting.

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9 comments

  1. Mary Sunshine · ·

    That chart / table is brilliant. Did you make it, or did it already exist somewhere?

  2. Oh, why thank you so much, Mary! I made it myself. 🙂 And it’s actually a subsection of a larger spreadsheet with details on all 17 (18, with DC? I’ll have to double check) state GI laws. I’m pretty excited about it!

  3. Brilliant post and I like it

  4. […] “It is inaccurate to conflate sexual orientation with gender nonconformity, and such semantic slop… […]

  5. […] people say that semantic sloppiness has no place in the law, but actually, it does. Semantic sloppiness is your best friend when you want to legally replace […]

  6. Only found this one now. It appears that while you point out sloppiness of “gender identity” you ignore “gender expression”, which is a wider protection of nonconforming behaviour not necessarily linked to rejection of the birth sex.

    However, on some research, it appears that Nevada’s law was *explicitly written to make the Jespersen case stand*. https://www.jacksonlewis.com/resources.php?NewsID=3805 “Employers may require reasonable workplace appearance, grooming, and dress standards that are consistent with the employee’s preferred gender.” The word “grooming” tells me the writer thought of Jespersen, I don’t believe in such a coincidence.

    Now, that’s not “the trans” at work. That’s obvious Big Money interest, as is the original Jespersen case. The alleged “transsexual empire” is dwarfed by the undisputable gambling empire.

    There is a big practical difference between the Hopkins and Jespersen cases, which just might explain their different outcomes. In the victory of Hopkins, the legal profession wins, as lawyers are free to be lawyers, not “be women”; some men apparently tried sex stereotyping as a tool of unfair competition, but removing his tool does not threaten the lawyer world as such. But if Jespersen won, the casino business, as such, could lose.

    No one will stand up and say it in court, but distractive seductiveness might well be an implicit part of the job description. The model is, apparently, to have the clients fascinated by the workers so that they blow more money away. (Disclaimer: my knowledge does not come from Nevada but from hearsay in some less civilized places). So there is likely MONEY being made by making these women “look sexy” and that’s, in my humble opinion, why they sneaked this crap right into a supposedly progressive law.

    If radfems go up in arms against THAT, fair play to y’all. (I’d support it but nobody in Nevada cares about some random foreigner).

    As an aside, firm protection of gender-nonconforming expression – whether explicit or via extension of sex discrimination legislation – *will* protect “weekend cross-dressers”. So what? Do agree with you on “improper purpose” – which probably should be formulated somewhat more explicitly, or else the moneyed interests will overdefine it hugely to keep the Jespersen types in line.

    As another aside, I don’t expect quick replies – just sharing some stuff that appears important. I have a bit of hope that the note on the Nevada law makes it on the blog grapevine from you to people who could do something about it locally.

  7. […] sub-sets of the information contained in the first tab. The middle tab highlights definitions that sloppily confuse or otherwise lump together sexual orientation and gender identity (6/17 states). The final tab highlights states that have special protections for sex-segregation in […]

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