Insurance coverage and the medicalization of gender non-conformity, Part 1

[This will be a two-part post. Check back next week and/or subscribe to the blog for the second installment. Full pdf here.]

Insurance coverage of medical treatments for “sex changes” is very controversial. Medicaid coverage of gender identity related conditions is practically a legal field of study unto itself.[i]  Like the various definitions of “gender identity,” the rules that control driver’s license and birth certificate amendments, and whether violence against someone is considered a hate crime; health insurance is governed differently in every state.

In Oregon, the Insurance Division of the Department of Consumer and Business Services (division) recently issued a comprehensive bulletin (INS 2012-01)[ii] about health insurance coverage of medical treatments for gender identity/gender dysphoria (GI/GD) (see discussion of meaning below, Principle #4). I will use the framework of this guidance to highlight some of the legal and practical inconsistencies that concern me about the socially constructed intersection of sex and gender and what it means to consider gender non-conformity a medical anomaly. Insurance coverage of GI/GD is strategically oversimplified in political discourse as a matter of “fairness” and “equality” (an emotional appeal to our collective sense of justice), but the issues are actually much more complicated and have serious implications for biological determinism and sex stereotyping.

TO: All Insurers Transacting Insurance in Oregon (December 19, 2012)

RE: Application of Senate Bill 2 (2007 Legislative Session) to Gender Identity Issues in the Transaction and Regulation of Insurance in Oregon

The bulletin contains six guiding principles interpreting the proper application of the state’s “gender identity” anti-discrimination protections to health insurance policies. In short, medical treatments for GI/GD–from mental health counseling and synthetic hormone replacement to surgeries– must be covered at all times and without restriction.

Principle #1: An insurer may not discriminate on the basis of an insured’s or prospective insured’s actual or perceived gender identity, or on the basis that the insured or prospective insured is a transgender person.

Principle #1 is broken down into 4 finer points, including the mandate that an insurer may not “designate GI/GD as a preexisting condition for which coverage will be denied or limited.” I agree with this. Preexisting condition exclusions and limitations should be illegal. Life is a preexisting condition! The industry standardization of these exclusions represents widespread profiteering at the expense of human dignity and health. They concern me, especially when inconsistently applied.

As I was researching preexisting conditions in Oregon,[iii] I discovered that the state has a program called the Oregon Medical Insurance Pool (OMIP). It’s a health insurance plan for people with preexisting medical conditions for whom private insurance premiums are prohibitively expensive. Ironically, the OMIP itself limits coverage for preexisting conditions in the first six months of enrollment. These preexisting conditions include pregnancy, a female-specific condition. From their website:

Q. I have not had insurance for years. I am pregnant and need insurance coverage. Can OMIP help me? 

A. Maybe. Again, the OMIP benefit plans have a six-month limitation for pre-existing conditions (except HCTC), including pregnancy. Therefore, depending on when your baby is delivered (regardless of when the due date is), you may be covered. If the baby is delivered after you have had your policy in force for six months or more, you would be covered for that delivery.[iv]

Pretty harsh. Even if you have a high-risk pregnancy or a premature birth, OMIP will not cover you in the first six months of your policy. So, according to the state of Oregon, pregnancy can be designated as a preexisting condition, but GI/GD cannot be. This arrangement doesn’t make sense for a number of reasons. Pregnancy is a temporary condition with a known end (it is often defined as a short term disability). Within the biologically limited timeframe of gestation, pregnancy is an escalating condition that commonly requires treatment more urgently in its later stages than its early ones. Pregnancy can be physically, urgently life-threatening. GI/GD, on the other hand, is a long term, chronic condition. The medical treatment for GI/GD, including plans for “sex change” surgery, is an evolutionary process, often taking years. GI/GD is not directly, physically life-threatening. But Oregon’s legal priorities have been clearly established: it is more important to ensure immediate, continuous medical coverage for GI/GD than for a common, female-specific health condition that represents the main event of human reproduction. I think that is a human rights violation.

Principle #2: A health insurer may not deny or limit coverage or deny a claim for a procedure provided for GI/GD if the same procedure is allowed in the treatment of another non-GI/GD-related condition.

This attempt at “equality” may sound reasonable on first read, but let’s back it up a step: payment of health insurance benefits always turns on the meaning and application of medical necessity for any particular treatment. The bulletin further explains:

For example, if an insurer provided coverage for breast reduction surgery to alleviate back pain, the insurer could not deny breast reduction surgery for gender reassignment purposes so long as the treatment is deemed medically necessary.[3] This places an insured who is seeking coverage of a condition related to GI/GD on equal footing with any other person by basing the decision about coverage on medical necessity, not on GI/GD. . .

First, a finding of medical necessary to relieve the symptoms of one condition does not logically validate or lend credence to the idea that the same intervention is medically necessary and/or effective at treating a wholly different condition. But secondly, in this example, major surgery on the physical source of back pain is analogized to the use of major surgery on the same body part to relieve a physically unrelated mental condition. GI/GD seems to be the singular exception to the rule that establishing medical necessity for physical interventions on otherwise healthy body parts is logically inconsistent.[v] The “brain sex” theory of transsexualism[vi] has been thoroughly[vii] debunked,[viii] but social and legal opinion has been slow to catch up because political power and money is concentrated in the hands of those whose agenda is harmed by this evidence (I am mostly referring to the misplaced interests of LGBT organizations).[ix]

Female transsexuals undergo mastectomies, but a common “treatment” for male transsexualism (or GI/GD) is breast implants. I want to ask what would happen if Oregon’s mandate were applied to Medicare (which it doesn’t because Medicare is a federal program). Medicare is a bit more discerning in its coverage rules:

Medicare doesn’t cover cosmetic surgery unless it’s needed because of accidental injury or to improve the function of a malformed body part. Medicare covers breast prostheses if you had a mastectomy because of breast cancer. [x]

By comparison, Oregon’s bulletin effectively requires coverage of breast prostheses for everyone, not just those females who have suffered physically objective health problems so extreme that they ultimately required a mastectomy. Instead of being able to limit coverage to instances of breast reconstruction (following the medically necessary removal of naturally formed breasts for life-saving purposes), the state of Oregon now expects private health insurance carriers to cover breast prostheses for anyone who “needs” breasts for the first time as a result of their aberrant “gender identity” even while the body itself functions normally and naturally.

I’m concerned about how medical necessity is applied to current conceptions of gender identity. If gender identity and/or gender dysphoria (GI/GD) medically necessitates physical changes to the body, then certain “gender identities” are medically consistent with particular kinds of bodies. In other words, there is a “right” and a “wrong” way to embody gender. Depending on one’s “gender identity,” certain sex-specific body parts can be diagnosed as erroneous and, therefore, in need of medical treatment or correction.  Contrast this with the radical idea that gender non-conformity is a sociologically foreseeable departure from, and/or individually calculated resistance to, rigid gendered conditioning.

The medicalization of gender non-conformity is consistent with and legitimizes compulsory heteronormativity. Changing the sexed appearance of one’s body to accommodate society’s expectations of “man” or “woman” does not challenge the status quo; it is a capitulation to and reinforcement of the stereotypes that limit these social categories in the first place. As a female who violates certain gender norms and as a woman who cares about women’s freedom to express themselves without “gender” related limitations, the medicalization of gender non-conformity deeply concerns me.


[ix] I believe it’s only a matter of time before the law catches up to the latest scientific skepticism about biological bases for gender non-conformity (i.e., there isn’t one). The studies relied on to substantiate the currently popular neurological theories about transsexualism are no longer worthy of the authority they were once granted. As a litigation strategy, this will ultimately become a “battle of the experts.”

[x] http://www.medicare.gov/coverage/cosmetic-surgery.html

[This will be a two-part post. Check back next week and/or subscribe to the blog for the second installment. Full pdf here.]

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37 comments

  1. Bess, I really like what you’ve written so far, and would like when you go into how this doesn’t free us as Females, especially us Butch Dykes! And the whole idea of cutting off healthy breasts as ‘medically necessary’ surgery when folks can’t even get REGULAR insurance for serious physically life threatening issues like cancer, heart disease, diabetes and the like…..is to me a real waste of medical resources for physically healthy bodies to CONFORM to society’s status quo! While one year in one of my Dyke communities, I knew two women in the same group, one had to have a double mastectomy because of breast cancer and we threw a party and fundraiser for her FOR her healthcare because she had her own small business without insurance, and the OTHER came to this same group, lifted up her shirt and BRAGGED about having her breast removal surgery….for the purposes of FTMing!! Just sickened me! Now that one has recanted her FTM ways and is claiming being female and Lesbian again….but still, the damage is done, and the permanent hormone induced voice will be with her forever, and the removed breasts due to cosmetic breast removal surgery for the purposes of ‘changing gender’. The other, I have not seen in the community for many years, and I wonder what her health status is now after having gone through all the cancer treatments!
    -FeistyAmazon

  2. Reblogged this on GenderTrender and commented:
    I’m concerned about how medical necessity is applied to current conceptions of gender identity. If gender identity and/or gender dysphoria (GI/GD) medically necessitates physical changes to the body, then certain “gender identities” are medically consistent with particular kinds of bodies. In other words, there is a “right” and a “wrong” way to embody gender. Depending on one’s “gender identity,” certain sex-specific body parts can be diagnosed as erroneous and, therefore, in need of medical treatment or correction. Contrast this with the radical idea that gender non-conformity is a sociologically foreseeable departure from, and/or individually calculated resistance to, rigid gendered conditioning.

  3. Obviously this is a very American-based blog, but here (Netherlands) most cosmetic surgeries are not covered. There are a limited amount of treatments that are covered for lasering hair (6 or 8 I think) but facial correction surgeries and implants/prosthetics are never covered. Most people pay ~100-150 euros for their insurance every month so I guess they’re paying their own surgeries over the years. It’d take five years to pay a mastectomy. There are also strict rules, you have to do a one-year real life experience and have at least six months to a year of psychiatrist evaluation.

    I agree with you that many people today are now just transitioning because they think that liking things that are commonly associated with the other sex means they must be trans… they are also very often the ones who will detransition after realizing they were never transsexual. They are the same people who think you can use hormones temporarily and then turn back to normal if it’s not what you want and who coax people into transitioning because it’s “fun and so against gender roles!”. These people do not have dysphoria, and some even admit on their vlogs that they lie to get hormones… and stop several months later.

    I doubt any transsexual would proudly brag about just how trans* they are and show off their results when the goal of these surgeries is to live a normal live as the sex they are meant to be without the entire world knowing they are trans.

    I’m not sure if you want a trans man to post here but I can answer questions or just leave.

  4. So, you want to “demedicalize” the transsexual condition, which removes access to both the operations themselves *and objective medical evaluation*. At the same time, at https://sexnotgender.com/stereotypes-and-gender-identity/ , you want to limit protection for gender identity to evidence, primarily, of the very same treatment and evaluation that you want to take away.

    A double bind if I’ve ever seen one.

    I actually *agree* with the gender identity definition proposed at the link, and not with the simple self-identification that the other side relies on. But this definition, UNLIKE the transactivist definition, is fully dependent on a medical understanding of the transsexual experience. And here you want to remove that!

  5. Very astute Mikhail. Two points.

    1> Alternative pleadings. It’s a legal thing.

    2> If sex and gender stopped being considered THE SAME THING, this wouldn’t be a problem AT ALL. Ever. Not a problem with identifying paperwork, not with special surgeries, not with pronouns and names, not with ANY OF IT. That’s your solution right there.

    Sex is a stable, physical reality that indicates presumed reproductive fertility. It’s an objective, congenital condition. You cannot “change” it later in life.

    Gender is elastic and subjective and socio-historically unstable. It is not set-at-birth; it is not scientifically observable or measurable.

    SEX and GENDER are 100% DIFFERENT. So let’s just keep them separate and there will be no issues at all, ok?

  6. Mikhail: 1) there is no objective evidence (or even a solid definition, for goodness sake) of “the transexual condition” — that’s largely the point of the objection to the medicalization in the first place; and 2) there’s a difference between clinical research and clinical medical practice. Treating a “condition” comes after clinical research has proven that there is a “condition” in objective studies. Clinical research doesn’t rely on the randomness of whomever happens to show up in doctors’ offices seeking “treatment” (a non-standard phenomenon in and of itself) to determine what is and isn’t a disease or syndrome or condition. It’s comprised of very carefully designed studies of objectively-observed, tested, and verified phenomena that have been built into a professionally-crafted thesis about their origin/cause. There are all kinds of reasons this may not have happened on the scale that it needs to for us to know if any of this has a biological (rather than purely psychological) basis, one of which might be the exceedingly rare existence of it.

    There’s an idea in the trans activist community that has taken on a life of its own, even with no scientific basis. The idea is that, by treating a “condition,” that condition must therefore exist. In other words, because doctors have “treated” “gender dysphoria,” it must exist. But that’s not at all how medical science works *even if* in practice medical doctors fall into the habit of acting like it does. Ameliorating someone’s symptoms does not point to a diagnosis, but doctors are still expected to try to ameliorate discomfort if they have reason to believe they can. But they are and have been often very wrong in taking that course. If you want to know how really horrible medical science is about that, just think about the decades that medical doctors — who should certainly know better — have been treating viruses with antibiotics. The idea was that they were treating the obvious inflammatory symptoms of the viruses, but they backed into a practice of “treating” something with antibiotics that had no effect on the underlying cause.

    So it is with medical doctors and all the various “trans” and “gender” conditions. They can certainly treat the outward effects — anti-anxiety meds, hormones, etc. — but they have no idea what the underlying cause of it is. And just as treating a virus with an antibiotic doesn’t provide any insight into what brought about the virus (or even that the virus exists), treating “gender dysphoria” with hormones doesn’t reveal what caused the dysphoria in the first place. But it does give a completely false — and very dangerous — view that it does know what caused it and that it is truly treating it.

  7. 1. Even the Wikipedia article says – “jurists might be influenced by dual defenses such as “my dog was tied up” and “I don’t have a dog”, but this must be weighed against the fact that defenses may not be allowed if they are introduced too late”. And there is no such inadmissibility in this case, while “the jury” is very much present. Basically, the double bind shoots both claims in the foot in PR – and I actually support the first claim (self-identification is not enough) so I would not want it to happen.

    Not just this particular double bind, too. Cathy Brennan’s original appeal, which as I understand introduced this formula, might have more traction if Cathy Brennan did not attack people who DO have such evidence, and claim their condition and treatment is invalid.

    2. This could be an option, and it can be easily made less contentious by introducing the clarification of “biological sex”. Yet – even in the original form you propose – there does not seem to be a major “side” supporting it. Notably, of the issues you listed, pronouns clearly refer to gender, not sex (the word “gender” comes from grammar to start with). Yet blogs like this refuse to use preferred pronouns – or even neutral pronouns. (Strangely, a popular “radfem” combination is to use preferred names but biological pronouns).

    Besides, even if this option were to be fully present, and sex and gender were completely separate legal entities, it would not make medical treatment – hormones or operations – less needed for people with genuine sex dysphoria, also known as transsexuals.

    Full disclosure. I am a man (and male and a biological father). I have transsexual friends (both ftm and mtf), and I would not want them denied care. By “care” I do not, of course, mean the right to be at any given private space (re bathrooms, I see transsexuality as a disability, so that problem is already solved by gender-neutral “disabled” toilets). I don’t even care what pronouns random strangers use at them. And the idea that someone should have sex with them for political reasons makes me cringe (and them laugh).

    But it’s different when people want to ban, or minimize access to, the treatment necessary for them to live a normal life. This can only push them underground, to self-medication and other risky stuff, and completely away from any reasonable objective evaluation of their condition. If you close off medical access, you will have MORE people on hormones (of questionable quality) because people won’t be screened by doctors first, and you will perhaps have less surgery but some outright butchery (self-inflicted or by back alley quacks) will happen.

    Oh, and there is a difference between body sex dysphoria and a simple preference to express as the other sex sometimes. I actually crossdress myself (in roleplayng environments – a very mixed-gender place where many females also present as male). But I am not transsexual. And some people are. And no amount of ideology is going to change that. You might think social progress would eventually eliminate such dysphoria – but somebody else’s aspiration of social change does nothing for real people with real issues.

  8. In the day after this exchange, I thought a lot about the suggestion that sex should not be confused with gender. And it appears that, actually, there are more than two dimensions here. Even if we exclude things like legal or social gender (which might be seen as social constructs that have nothing to do with the real state of the person), I could work out the following distinct characteristics applying to every person (some of these don’t apply to people who can not make a choice, such as small children). And this BEFORE any sexual orientation comes into play.

    – Chromosomal sex. What is in the genes. XX or XY or one of the anomalies.

    – Procreative sex. The actual capabilities of a person (possibly as yet undeveloped). Child-bearer, sperm-generator, none (for any reason).

    – Genital sex. What can be seen from the outside and used in sexual interaction with another person. This is the thing that an SRS can alter, and this is what matters to many (by no means all!) people in selecting sexual partners. Penis, vagina, none. (Some people might say that constructed/prosthetic genitals – whether as a result of SRS or other issues – should be two separate entries here).

    – Gender assigned at birth. Normally corresponds to genital sex at birth, though at least one exception is known

    – Gender identity. A person’s consistent and deeply felt view of themselves, which normally (when different from genital sex) can be evidenced objectively. While the typical values here are “man” and “woman” and “man”, there can be many different shades – either something-women or something-men (transwoman, butch woman, bigender man, bigender woman are all examples of people’s gender identities; “bigender man/woman” meaning a man/woman who also recognizes and treasures his/her female/male side).

    – Gender expression. What the person chooses to express (in clothing, look, conversation etc) at this particular moment.

    Each of these characteristics can cause a person risk, grievance, harm, etc. (Admittedly, this happens more often when that characteristic is to the woman/female side, but not exclusively). For example, while the *cost* of rape to the victim depends on reproductive sex, the *probability* of victimization for rape depends on genital sex and sometimes on gender presentation (very few rapists care about impregnability).

    And each of these deserves legal protection in some cases – yes, even gender expression, which is a solely personal choice. For example, a man in a dress or a butch looking woman should not be harassed when pulled over by police when driving their own vehicle; whether workplaces can have non-gender-neutral dress codes is up for debate. On the other hand, bathroom use clearly relates to genital sex, not any gender. And, of course, private noncommercial gatherings like Michfest can have blood testing at the entrance for all I care; Camp Trans should cut it out and go create a big Inclusion Fest instead (or join the Rainbow Gathering, an existing festival that values diversity).

    Each of the characteristics is also important in its own way and none of them can really be conflated. What should be tracked by the State – not sure.

  9. Ok, first of all, this is legal blog. Alternate pleadings are fair game (AND I gave you a completely consistent solution to the ideological conflict you perceive, so it’s a moot point).

    Secondly, political issues and personal attacks are different. I will NOT be responsible for anyone else’s behavior, up to and including Cathy Brennan’s. If you want to discuss what I’ve written, then address ME and MY arguments. I do not address “blogs like this” accusations. I take PAIN STAKING care to be clear with my words and meaning. Thank you.

    Next, there is no other kind of “sex” besides BIOLOGICAL sex (and it’s clear that I’m not talking about sex as an ACT) so I don’t need to qualify what KIND of sex I’m talking about.

    You haven’t said anything besides “transsexuals need sex changes because they said so.” There is no MEDICAL NECESSITY argument here. Brain sex is JUNK SCIENCE. There is NO biological connection between reproductive capacity/genitals/sex and gendered, or sex-specific behavior.

    If treatment to live a “normal life” means SOCIALLY PASSING AS THE OPPOSITE SEX, this is nothing more than equating genitals with behavior; reducing sex to stereotypes. Being a “woman” or a “female” for social, legal, and medical is NOT CREATED out of inner identification with sex role stereotypes. That is archaic and conservative bullshit. Please stop it.

  10. Admittedly the page could use an update, but please read this, as you seem to have missed it:

    https://sexnotgender.com/what-is-sex/

    But I’m glad you’re thinking about what I suggested. Prohibitions on sex-based discrimination is a perfectly good solution that avoids BOTH pathologizing gender non-conformity AND confusing sex and gender. It’s really does NOT have to be this complicated.

  11. Prohibitions on sex-based discrimination (provided they are not TOO broad – or they would “get” things like Michfest!) are necessary. However, they are not sufficient to cover the entire range of human conditions.

    I do not support *replacing* of sex with gender in law. I agree they are distinctive. However, your line (that prohibiting sex based discrimination is a “perfect solution”) leads to ALLOWING UNRESTRICTED discrimination against people who, for whatever reason, express gender that is not consistent with their sex. While I am wary of any overreaching discrimination protection, I can not help seeing here that you actually support such discrimination, or at least see no reason for prohibitions on it.

    And that just comes from your own statement – no Cathy Brennan involved. I have only mentioned her because, as far as I know, she authored the restricted definition of gender identity that you promote. I may be mistaken.

    There are real issues with discrimination by gender and NOT sex, and they have nothing to do with bathrooms or women’s spaces. I am talking of employment, housing, access to public spaces (not sex-segregated), etc. A famous early case is Lynn Conway’s dismissal from IBM solely for her intention to transition (disclaimer: I have researched the issue and IBM has introduced a policy against such discrimination no later than 2002). Laws against discrimination by sex are NOT sufficient to prevent such discrimination.

    It can even be argued that much of this kind of discrimination should be addressed at the gender expression level, without even touching gender identity. Basically, no one should be able to fire a man in a dress from a non-public position (Lynn was in R&D) *whatever* the reason for wearing that dress. But if you see that as “too liberal”, then *at least* evidenced gender identity should be entitled to this level of protection.

    As for the transsexual condition, theories of causes are very tentative at present. But, as I wrote in the comment you have not unscreened, medicine routinely deals with syndromes for which causes are not known. There are sufficient follow-up studies to determine a general positive clinical outcome (not 100% of course, but very few procedures can boast 100%), provided that diagnosis is properly performed.

    Next, you write – “Being a “woman” or a “female” for social, legal, and medical is NOT CREATED out of inner identification with sex role stereotypes”. But what IS it created out of (social and legal, at least)? Do you support the extremely conservative view that one’s legal and social gender should be purely based on biology?

  12. Just realized that, in your work to separate sex and gender (which in itself might be a good idea), you might have either tripped up or proposed something very strange with your phrase “SOCIALLY PASSING AS THE OPPOSITE SEX”, in the context of transsexuals.

    Now, in situations not related to sex as an act (or its consequences in reproduction, or its surroundings in marriage or partnership), nor to explicit sex-related restrictions, why would “sex” even be in this phrase? When we are talking of non-sexual social situations, should it not be “gender”?

    Or are you proposing that SEX, not gender, be held relevant in such situations? Why?

  13. Ok, this is really getting into legal theory, but since you brought up cases, please familiarize yourself with Price Waterhouse v. Hopkins, a 1989 Supreme Court case that prohibits sex-STEREOTYPING. It is possibly my FAVORITE CASE EVER. ❤ xoxoxo

    http://en.wikipedia.org/wiki/Price_Waterhouse_v._Hopkins

    There are plenty of old, bad cases on the books. They have been effectively overruled by subsequent decisions. The trans injustice cases, like the IBM one you cite, are absolutely OBSESSED over in pro-trans law review articles arguing in favor of the NECESSITY of creating a NEW SPECIAL legal class for "identities" that relate to sex-stereotyping of the self. Believe me, there are MANY MORE wrongly decided cases that hurt females (see Jespersen v. Harrah's which should have been controlled by Price Waterhouse, but WASN'T). The case decisions are wrong, the legal theory is not.

    I wrote this to put somewhere else, so you may see it on the blog elsewhere, but it's relevant to our discussion as well:

    The 6th Circuit, the 9th Circuit, the 11th Circuit Federal Courts of Appeals AND the EEOC have ALL issued decisions affirming the use of a Title VII sex discrimination theory to protect people who understand themselves as transsexual and/or transgender:

    “…[a] complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII…”

    This is the most effective and sustainable legal strategy with the strongest precedent. It protects all gender non-conforming people without forcing them to claim a special kind of “gender identity,” that they are suffering from a special medical condition, or that they are members of a special group called “trans.”

    SOURCES:

    Smith v. City of Salem, Ohio, 378 F. 3d 566 – Court of Appeals, 6th Circuit 2004. http://scholar.google.com/scholar_case?case=988234023344471066&hl=en&as_sdt=2&as_vis=1&oi=scholarr

    Schwenk v. Hartford, 204 F. 3d 1187 – Court of Appeals, 9th Circuit 2000.
    http://caselaw.findlaw.com/us-9th-circuit/1452083.html

    Glenn v. Brumby, 663 F. 3d 1312 – Court of Appeals, 11th Circuit 2011.
    http://scholar.google.com/scholar_case?case=16555670383261317325&hl=en&as_sdt=2&as_vis=1&oi=scholarr

    See EEOC analysis here: http://lawprofessors.typepad.com/laborprof_blog/2013/01/the-eeoc-on-transgender-employees-and-sex-discrimination.html

    Macy v. Holder, Appeal No. 0120120821 http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt

  14. Next, you write – “Being a “woman” or a “female” for social, legal, and medical is NOT CREATED out of inner identification with sex role stereotypes”. But what IS it created out of (social and legal, at least)? Do you support the extremely conservative view that one’s legal and social gender should be purely based on biology?

    Mikhail, being female is a congenital condition. You are born with female reproductive organs, or you aren’t. Nature makes it happen.

    Being a “woman” is a life-long social experience that begins with your social-assignment-at-birth that you will be raised and treated as a member of the sex class– in other words, as a GIRL. Yes, this includes intersex individuals assigned the feminine social sex role at birth. You don’t CONSENT to membership in this class, it is INVOLUNTARILY put on you by society.

  15. I am putting these points in different comments because it seems a little bit less confusing to me that way.

    I don’t care if the law tracks something called “gender identity.” This seems like an administrative nightmare, plus I don’t understand gender identity’s relevance to governmental operations, but that’s nothing compared to what is being done now: REPLACEMENT of biological sex with gender.

    SEX MATTERS AS A LEGAL CATEGORY b/c reproductive rights, b/c sex-segregated female only space in public places, and b/c females are oppressed on the basis of our SEX and legal recourse depends on legal recognition of SEX.

    The sex-segregation of MichFest is a public/private issue. I’m not really interested in that right now b/c it’s secondary to bathroom usage and asshole senators who– like many trans activists– seem to think that SEX IS JOKE and that we can WILL OURSELVES not to be impregnated, or that we can WILL OURSELVES out of our biological sex by wearing certain clothing and DECLARING that we are no longer the sex we were born as.

    Gender and sex have NOTHING to do with each other EXCEPT that binary gender is assigned according to sex. I am lifting something that wrote here on this point:

    Feminism does not believe that asking whether an individual identifies with the particular social characteristics and expectations assigned to them at birth is a politically useful way of analyzing or understanding gender. Eliminating gender assignments, by allowing individuals to choose one of two pre-existing gender molds, while continuing to celebrate the existence and naturalism of “gender” itself, is not a progressive social goal that will advance women’s liberation. Feminism claims that gender is a much more complicated (and sinister) social phenomenon than this popular cis/trans binary has any hope of capturing.

    DEATH TO GENDER. Sex matters.

  16. I got your point about splitting comments by topic, will follow the practice.

    Regarding tracking sex in law: I understand your point that it matters, at least for body-related issues. But for people who, for whatever reason, do not conform to sex stereotypes, it can also be a privacy issue. Sex or gender is on driving licenses, bank documents (here in Europe – not been to US) and lots of other places. And if we are talking US law, privacy is affirmed as a major constitutional right, cf. Roe v Wade. (Oops, should there be a Godwin’s Law of Legal Discussion, with “Roe v. Wade” instead of “Hitler”?) So if you don’t want to have “gender” in widely accessible documents, would you prefer not having either sex or gender there?

    Also, “sex-segregated female only public spaces” – what do you mean? Do they actually exist? Or did I misunderstand “public” and bathrooms and shelters are “public” when government-run?

    In fact, except bathrooms, could you point to any real or hypothetical case when a female would require protection from discrimination or other ill-treatment based on sex, and a gender-based law would remove that protection?

    For bathrooms, there might be an easy solution if one grants permission to use single-occupancy disabled bathrooms to seriously non-conforming individuals. The medical recognition of transsexuality might make this easier from legal and social standpoints. On the other hand, was anyone ever prosecuted for using a disabled bathroom while non-disabled? (As opposed to a parking space). They apparently don’t prosecute this in Ireland but not sure about the USA. I am also not sure if disabled bathrooms are ubiquitous in the USA (they are in Ireland).

  17. Now to the matters not related to discrimination law. Context: as someone who grew up under failing Marxism in the USSR, I am extremely wary of any class-based analysis. Discrimination is a valid issue, but it is an issue of individual rights. Law is, and rightly so, concerned with individuals – and changing it to suppress individuals in favour of ideology is wrong every time.

    And this is what I see as VERY wrong in your analysis of “medicalization” and insurance coverage. There is sufficient clinical evidence. There are published opinions of medical bodies. But you want discard all that and to deny individuals access to care because it “reinforces stereotypes”?

    You deny “medical necessity” as stated by doctors using approved procedures (which are very far from relying just on personal thoughts, and have strict requirements regarding consistency). Your approach leads to denying care for political reasons.

    I do agree with you on the subject of coverage of pregnancy, but seeking to get that coverage by throwing people out of an approved medical system (and into semi-illegal street drugs) is not a solution.

  18. Tracking sex in law: WHY is it a “privacy” issue? It never was before. Females don’t have a “privacy” need to hide their biological sex. Only people who want to hide their biological sex in favor of some other thing would find this to be an invasion of privacy. Separate sex from “gender” and no problem!

    Public/private has legal meaning. A bathroom in a restaurant is a “private” space in a “public” place. I’m not sure what you want to know, but it all depends very much on the contextual circumstances at issue.

    Regarding Roe v. Wade, I do not like to use “PRIVACY” as a legal basis for anything b/c it is subject and culturally variable, but that is the precedent I have to work with.

    Anything ELSE? Bathrooms and locker rooms are more than enough! I am also VERY concerned about employment dress codes. See Jespersen v. Harrah’s Operating Co., Inc., 444 F. 3d 1104 – Court of Appeals, 9th Circuit 2006.

    Harrah’s policy required all women to wear heavy makeup applied in exactly the same way every day, to match a photograph held by the supervisor.

    On April 14, 2006, in a 7-4 ruling, an en banc panel of the Ninth Circuit Court of Appeals upheld the validity of the Casino’s grooming policy. The court said that while some sex-differentiated workplace rules may be discriminatory, in this case, the grooming standards did not reinforce negative stereotypes about women and the plaintiff in this case had failed to present evidence that the policy posed greater burdens for women than for men. Two judges filed dissenting opinions. With regard to the sex stereotyping argument, Judge Harry Pregerson disagreed with the majority, stating that the makeup requirement was based on “a cultural assumption – and gender-based stereotype – that women’s faces are incomplete, unattractive, or unprofessional without full makeup.”“

    Where gendered expression or identity is the same as sex, demanding full make-up from women is not unreasonable. I want a world where sex and gender are completely, TOTALLY different. Fuck make up.

    Finally, yes, single stall unisex bathrooms would be great. No argument here.

  19. Some females, namely trans men, DO have a privacy need to hide their biological sex. They want to socialize in mixed spaces as men, not women. The issue is not legal tracking in itself, but the presence of sex on widely available documents.

    Sex is a feature of the body, and by your definition it is inalienable and unchangeable. Let’s accept that for the sake of discussion. But chronic incurable medical conditions, such as diabetes, also are inalienable and unchangeable features of the body. And it is agreed that a person’s medical history and status is legitimately kept private. Why do you want to require people to advertise one specific feature of the body, sex, to all and sundry – like road police, bank workers, and basically anyone who can ask for ID? What is the legitimate public interest that overrides bodily privacy in this matter?

    NOTE: I am not in any way asserting moral or emotional equivalency between sex and diabetes, the parallel is in the context of legal discussion only. Sex is not a disease, but it is a property of the body. There are indeed other properties of the body that are not diseases but considered legitimately private, like pregnancy. I used diabetes because, like sex (in your definition), it can not be changed.

  20. Class-based analysis is the only way to understand structural and institutionalized discrimination. If we can’t talk about classes of people, then neither sexism or racism exist. It’s just individuals being mean to each other with no cultural context. ‘CLASS’ IS EVERYTHING IN POLITICS.

    There is sufficient clinical evidence. There are published opinions of medical bodies.

    Yes, and there are other equal authorities that refute that evidence. It is NOT settled. Here’s an example. http://www.lifesitenews.com/news/psychiatry-expert-scientifically-there-is-no-such-thing-as-transgender

    Please, gender non-conformity is not a sickness! It does not require physical changes to the SEXED appearance of one’s body. See footnote 6 for more science!

    No where did I argue that BECAUSE pregnancy is a pre-existing condition, gender identity should be TOO. I said that it wasn’t FAIR to protect one condition from limitations (like preexisting conditions), but not the other. ESPECIALLY when pregnancy is faaaarrr more common and physically dangerous to one (or two) person’s health! That is simply a misreading of my argument. You are gonna LOVE PART 2!!

  21. No, the authorities are not equal, this is a clear case of a medical mainstream and a minority opinion. The same kind of minority opinion that still maintains homosexuality is an acquired disease and claimssuccesses at “reparative therapy”.

    You have linked to an opinion of an isolated alleged expert – on a conservative website, too. The very same website publishes isolated alleged expert opinions in support of “reparative therapy” for homosexuals, and in fact links the issues: http://www.lifesitenews.com/news/archive//ldn/2009/aug/09081407 . You still want to trust this source and its alleged experts? What is the difference between Dr. Berger and Dr. Nicolosi?

    There are always minority medical opinions, but in this instance you appear to prefer a minority medical opinion for a political reason. You wrote yourself that “class is the foundation of politics”, and for left-wing politics, it is (I am not left-wing but you certainly have a right to be left-wing). So now you want to use a political argument to reject majority medical opinion and deny treatment to individuals. This is political oppression of such individuals.

    I understand your desire to preserve explicit sex-based discrimination protection. But denial of treatment is in no way necessary for such protection.

  22. No, transmen want to LIE about their sex. Sex is a CONGENITAL feature of the body. Not only does EVERYONE have a “sex” or presumed reproductive capacity, they have it at birth.

    Presumed reproductive capcity is the BASIS on which gendered socialization is distributed. The fucked and the fuck-ers. There are many differences, but most NOTABLY: humans born male and raised as boys/men are PRONE TO VIOLENCE and criminality. Yes, it’s true. http://www.bjs.gov/index.cfm?ty=datool&surl=%2Farrests%2Findex.cfm# <<go to the National Estimates TAB and then "Trend Graphs by Sex. Now tell me, do you think that HUGE disparity is biologically based?

    Propensity for violence not decreased by SRS in male-to-female transsexuals.

    In this study, male-to-female individuals had a higher risk for criminal convictions compared to female controls but not compared to male controls. This suggests that the sex reassignment procedure neither increased nor decreased the risk for criminal offending in male-to-females.”

    The POWER OF SOCIALIZATION is overwhelming.

    And to quote NoAnodyne, “[Female] vulnerability as a *class* rests in one place: Our ability to be raped and impregnated. All the “agency” in the world will not change that fact. The reason *men* are the focus of feminist critique is because they have a biological weapon with which to subordinate us through rape and impregnation and a culture that trains them to use it that way.”

    THAT is why tracking sex matters. Sociologically. And biologically.

  23. Article in the Atlantic Magazine about body identity integrity disorder. http://www.theatlantic.com/magazine/archive/2000/12/a-new-way-to-be-mad/304671/?single_page=true

    A Critique of the Brain-Sex Theory of Transsexualism. By Anne A. Lawrence, M.D., Ph.D.
    http://www.annelawrence.com/twr/brain-sex_critique.html

    See Cornelia Fine’s 2010 book entitled Delusions of Gender: http://www.nytimes.com/2010/08/24/science/24scibks.html?_r=0 and
    http://www.amazon.com/Delusions-Gender-Society-Neurosexism-Difference/dp/0393340244/ref=ntt_at_ep_dpt_1

    See also, Brain Storm: The Flaws in the Science of Sex Differences by Rebecca M. Jordan-Young, 2010. http://www.hup.harvard.edu/catalog.php?isbn=9780674057302 and http://www.slate.com/articles/double_x/doublex/2010/10/the_last_word_on_fetal_t.html

    I got more, too. This is NOT a minority opinion. It’s the future you refuse to see.

  24. So how do violence statistics justify a requirement for a person to ADVERTISE their sex? Some medical conditions are linked to violence in a much stronger way – should people be required to advertise those on public identity papers, too?

    In fact, I do not even see how the statistics justify legal tracking. The statistics are not strong enough to bias suspicion in any given act of violence. However, tracking itself is justified by other reasons, including any possible parenthood litigation, as well as investigation of any rapes (not because of statistics but because of physical capability).

    Now, what is the reason for a road police officer, a bank teller, a landlord, or anyone else who has a reason to ask for ID (and does not operate a sex segregated environment) to know anyone’s sex?

  25. Regarding medical theory. The majority of your links are about debating the “brain sex” theory, and the alternative “autogynephilia” theory proposed by Blanchard and Lawrence.

    The Blanchard-Lawrence theory has been subjected to considerable criticism, which does not always equate with support for the “brain sex” theory. Notably:

    http://www.tandfonline.com/doi/abs/10.1080/00918369.2010.486241
    http://www.tandfonline.com/doi/abs/10.1080/15532739.2010.514217

    However, the topic of possible causes for the syndrome does not have a necessary link to the reality of the syndrome itself and the clinical efficiency of treatment. In fact, one of the authors of the autogynephilia theory, Anne Lawrence, is a post-operative transsexual and does not regret this fact.

    Apart from isolated minority alleged experts, the clinical correctness and efficiency of *treatment* of transsexuality (as opposed to any particular theory of its *causes*) is clearly established in modern medicine. This treatment is broadly defined in the WPATH protocol. While the American Psychiatric Association has issues with specifics of the WPATH protocol, it has recently issued its own position statemen: http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%20Statements/ps2012_TransgenderCare.pdf

    This treatment does depend on what the APA describes as “appropriate evaluation”. Not every person identifying as transgender (or even transsexual) can be legitimately diagnosed as transsexual. And this is why access to medical specialists for all such people is especially important. Without such access, there is no way to separate genuine cases from misguided ones, and they will all end up on “street” treatment of questionable quality (except the richest ones who will get foreign treatment – and, because of absence of medical gatekeeping, face a much increased risk of regret).

  26. Ok, Mikhail, I’ll give you a little bit: a landlord or a bank teller doesn’t have a legit reason to know someone’s biological sex. But people who want to HIDE THEIR SEX (wtf??) should advocate for a NEW FORM of ID! This is the reasonable ALTERNATIVE to OVERRIDING SEX as a matter of governmental tracking with “gender identity. You are talking about a problem with using IDs for too many diverse purposes, not a problem with the information itself. And as a tangent, a lot of people simply can NOT hide their sex b/c their bodies are built a certain way. Or their face is a certain way. Or their hair patterns.

    And gender non-conforming people OF ALL KINDS have this same social problem. It’s not trans-special.

    We need to DESTROY SEX STEREOTYPES, not reinforce them.

    And about the violence predictions, we’ll have to agree to disagree. When I walk down the street alone at night, I always look out for male predators. Most women do.

  27. P.S. I would like to avoid discussion of radical “feminist critique” (NoAnodyne conflates radfem with all of feminism but this is a common position). The law of any land can not fully reflect the position of one radical ideological group.

    I can show you a blog posting by FactCheckMe where she suggests it would be just to imprison every man in 20 miles radius from a rape because they are all individually responsible. While FCM has a right to hold this position as part of her ideology, it is obviously not a valid legal theory (nor does she claim it as such). In the same way, the legal position of any individual, for example a requirement to advertise their sex, can not be determined by radical feminist class critique.

  28. What other theory, besides brain-sex (which is bunk), are you proposing to support a SCIENTIFICALLY supportable connection between sex and gender such that modifying the SEXED APPEARANCE of one’s body is *medically necessary*? WPATH essentially says: everything is everything and whatever a trans person wants, they should be given. That’s why the APA reluctant to endorse.

    That Lawrence does not REGRET SRS is not proof that it was *medically necessary.* I don’t regret buying a car, but it wasn’t medically necessary.

    And finally, you are confusing ALL access to care with access to care BASED ON or BECAUSE OF a specific condition. I am saying, eliminate GI/GD/GID. For example, homosexuals are still treated for all kinds of mental illnesses and related symptoms. They are simply not pathologized ON THE BASIS OF being homosexual. THAT is what I’m talking about. And if I would stop responding to your comments and get PART 2 published, we’ll get to that!!

  29. Omg, don’t EVEN talk to me about FCM. Lolol! You don’t know the half of it! I disagree with her. That’s all that matters here.

  30. I have never argued for legal limitation on who anyone looks out for when alone at night. I do NOT believe that “the personal is political” and would never support any political or legal meddling with people’s private choices (while only adults are involved and consent is not in doubt). My criticism of the use of violence statistics concerned identity documents, not people’s choices. (Before anyone asks – no support from me for “cotton ceiling” crap).

    However, your own proposals on prohibiting sexual stereotyping would exclude any limitation of anyone around you at night (in a non-segregated space) who would want to pose as a woman while male – even if they do it, exactly, as posing. Or the opposite.

    You are not in a position to check a government database on them, or to ask them for any documents. And if you were, you would be a police officer – and that approach would be called profiling. Isn’t that banned already?

    So, government tracking of sex would do exactly nothing to help you look out an night. It might be needed but for a different purpose.

    Removal of sex from identity documents is a valid approach, and in fact I know a Russian transgender group campaigning for exactly that. It’s not “new form of ID” however, but modification of existing forms like driving licenses (in the Russian case, the internal passport, something the USA does not have at all).

  31. The issue here is, in modern medicine, one DOES NOT have to have a proven root cause theory to treat a syndrome. In cases where toot cause is not clear, clinical efficiency is sufficient in itself. A typical example is Irritable Bowel Syndrome.

    Medical necessity in such cases is based on *outcome* of a specific treatment vs. no treatment or existing alternatives. And this is sufficiently studied in regard to transsexuality, as the APA affirms.

  32. People’s private choices? You’re a libertarian? Oh, we are not going to get along!

    I think we talked around each other there. I am saying that GENDER, as a system of BINARY social-stratification, gives us reason alone to track sex. Until gender is destroyed. But I am sympathetic to your claim that sex-tracking is not necessary in many situations.

    My argument is that we need to preserve SEX as a legal category to “hang” certain reproductive rights on. Among other things. Pregnancy discrimination. The Guttmacher Institute is a good reference for the wide range of laws and legal issues that are implicated by SEX.

    http://feministing.com/2012/04/10/trans-rights-are-reproductive-rights/

  33. And I’m saying that treating things without knowing their cause is dangerous. See lobotomies! Liposuction MIGHT relieve the anxiety of some fat anorexics. But this treatment is not clinically indicated. Further, I am not in the mood to post anecdotes about trans regretters and fucked up SRS surgeries that caused the individual even MORE medical problems.

    Plus. Reifying sex with gender (yes its a theoretical problem) PREVENTS contextual analysis of FEMALE OPPRESSION on the basis of GENDER (and sex, by erasing it) by CONCLUDING that such social stratification is NATURAL…and INEVITABLE. I have a really big problem with that. REALLY BIG!

  34. And I have a problem with limitation of individual access to clinically relevant treatment because of anyone’s need for contextual analysis.

    Am I a libertarian? Wait, would a libertarian argue for universal access to ANY kind of medical treatment? Libertarians reject the ideas of taxpayer-funded medicine and of insurance regulation (apart from fraud prevention). Also, I support anti-discrimination legislation as a principle (while I see it as an issue of individual rights, not of class). Libertarians reject it outright.

    I know it all very well because ten years ago I was one. I have read much of the major stuff, Ayn Rand included. I was an editor on a libertarian website, free-market.net (now defunct for reasons unrelated to me).

    I left because I realized that a civilized society includes safety nets for its members, and some of those, unfortunately, need to be maintained by coercion. Property rights do not exist in isolation from other social requirements.

    Throwing people to the wolves to keep an ideology pure, for example letting them die or beg if they are not “valued by the free market”, is not an option I am ready to accept. This is why I am not a libertarian. And this same principle is why I support access to evaluation and treatment for transsexuals.

    If by “libertarian” you mean simply someone who believes in the reality of individual choice and agency and who maintains the primacy of individual rights in general, then, yes, I am one. But this is not the typical political meaning of the term. Libertarianism is a specific political movement to which I do not subscribe. (Though I’m also against US military aggression just like them… totally off topic here though)

    To summarize, we don’t differ all that much where you insist on *keeping* existing valid protection of individuals, based on sex. Where we do differ is where you want to DENY support to individuals in a hard situation because they do not fit your social ideals.

    Real libertarians would agree with you as long as you did not *prohibit* private insurers from covering transsexual treatment. They would posit that people who desire to support trans people would choose policies from “trans-friendly” insurers, even if they are a bit more expensive, and one should not force the rest to pay for treatments they don’t believe in. I’m sharing this point with you because you might want to co-opt it. You’ve already quoted LifeSiteNet – some of the Right are your true allies in this business. I can also tell you some of them don’t like the idea of “privacy” and would gladly state that “hiding one’s sex” is not permissible in society – there is a Bible quote for that, too.

  35. The link to the Catherine Cross post on Feministing caught me by surprise. I wonder what you mean by it. Perhaps you mean that when she laments body requirements for changing “gender marker on various IDs”, she overlooks the logical solution of removing it from them altogether? Yes, she does. I’d write it there but comments are closed.

    She also criticizes psychiatrists for enforcing gender stereotypes, but they are doing it in order to LIMIT access to body modification. They are “stress testing” the condition; the logic here is that the person is given hard tasks associated with their allegedly strongly desired gender, to see if, even without the benefit of previous socialization, they will perform the tasks and keep their resolve. Katherine would want easier access – you would want to make it even harder (and this simply means more expensive and/or illegal and/or foreign).

  36. Just found another “libertarian” – of all people!

    http://www.guardian.co.uk/commentisfree/2013/jan/17/supporting-freedom-makes-me-opponent-equality

    “I live for a left that is about freedom, a sexual politics that is about choice.”

    That’s Suzanne Moore, writing on the (infamous) topic of some transactivists attacking her. Amen to that.

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