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:
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 Might, 15 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.