Posts Tagged ‘gender identity’

This Won’t Help

April 11th, 2010 No comments

Issues involving the proper and respectful treatment of transgendered people are inherently difficult in a few situations. A recent story on FOX News (hardly a trustworthy source) about a proposal by the Maine Human Rights Commission to extend the ban on discrimination against the TG community to virtually every school-related context can’t be the best approach. If ultimately adopted, the guidance document would recognize no criteria for deciding when a student’s non-conforming gender identity should or should not be recognized; require the school to allow the student to compete in sports with members of the chosen (as opposed to birth) sex; and require the schools to “figure out” how to accommodate privacy concerns.

Is is enough for a student to simply announce, without more, a chosen gender? Maybe, because the document doesn’t require any particular “test” or even “factors” for deciding the question, and gives school officials only this unhelpful guidance for deciding what to do:

[I]f a school has an objective basis to question whether a student’s gender identity or expression is bona fide, it may ask for information to show that the gender identity is sincerely held. No particular type of information (such as medical) may be required.

This policy, however well-intentioned, is likely to lead to exactly the kind of nastiness it’s trying to avoid. In its effort to avoid the essentializing impulse of rules and laws that declare, brainlessly, that one’s sex at birth determines one gender identity forevermore, the Commission has simply thrown up its hands. But surely this isn’t the right answer. Should a college athlete, born male and with no hormone treatment or surgery be able to compete against women? Unless we’re talking about the University of Connecticut’s women’s basketball team, this isn’t fair (and would be poor sportsmanship, to boot).

The Commission deserves credit for trying to show respect for one of the most horribly vilified and mistreated groups of people around. But just as tests have been developed for all kinds of other difficult calls, some kind of criteria need to be applied here, too. Otherwise everyone loses.

On the Brink of Hate Crimes Law Protecting the LGBT Community

October 27th, 2009 No comments

Tomorrow, President Obama is expected to sign the hate crimes bill (smuggled into an essential military spending measure) that will, at last, extend the reach of protection to those attacked and seriously wounded or killed because of gender, gender identity, sexual orientation, or disability.

Before I offer an opinion on the measure, it’s worth pausing for a moment at the imminent passage of the first significant piece of federal legislation enacted on behalf of the LGBT community. Whatever one’s belief about the value of this law as opposed to others in the pipeline (or not) designed to address the community’s needs, it’s appropriate here to pause and offer thanks and respect for the advocates who worked tirelessly for this, including, of course, Judy Shepard. Of course, this had better not be the only thing the Obama Administration does, but I’ll leave that alone for today.

I’ve likely spent more time thinking about the wisdom of hate crimes legislation than is healthy. For a long time, I had trouble with it; to an extent, I still do. There’s something to the argument that violent crimes are just violent crimes; that, by trying to dig more deeply into impermissible motives, the prosecutor runs the risk of punishing conduct the law didn’t intend to target, or, worse, targeting conduct because of its speech content rather than the serious physical consequences it produces.

Sometimes, those offering these arguments aren’t doing so in good faith — they oppose only this hate crimes bill, but not protecting victims of crimes committed because of race, religion, or national origin. Sorry, but given the prevalence of anti-queer (and I’m using the term advisedly here) violence, this is just a specious assertion: If anyone needs hate crimes protection, it’s the most outrageous gender “outlaws.” Even more “mainstream” gays are targeted at a rate that’s high even among despised groups. Worse, the LGBT community is the victim of a great number of the most serious cases.

Some, though, make the principled  conservative case against hate crimes law. Andrew Sullivan is prominent among these. (He’s addressed the issue on many occasions, but particularly persuasively, on what are really philosophical grounds,   here.) But I’m less concerned about the metaphysical basis of “hate” than he is. Instead, I look at the situation this way: What we (collectively) are saying in bumping up the penalty for a crime against a protected group is that: (1) Words can’t be punished in themselves, but when those words are linked to criminal action, they become something else; and (2) That “something else” is sufficiently upsetting to the community that we want to both stand with the victims and send a message to the those who might engage in similar behavior.

The trick, of course, is to use the words to prove a heightened degree of criminality. But the fact that we’re using words instead of some other indicator of intent shouldn’t be dispositive, unless one is willing to cling to the obvious fiction that we can never punish anything related to “words.” We punish fraud, defamation, and “fighting words,” to name a few. And words are routinely used to define crimes, and to establish motive and intent.

Once that’s out of the way, then we’re in familiar territory: Deciding how culpable particular acts are. And these are judgments we make all the time. Here is David Gibson:

“[T]he law is full of degrees of criminality. Premeditated murder is not viewed in the same way as a crime of passion, just as rape is treated as an especially heinous type of physical attack that is meant to degrade a victim, and so is deserving of appropriate penalties….

“[T]hese attacks can inflict [damage] on an entire community. Just as a serial rapist on the loose sows fear among all women (and their families) and curbs their freedom, so too a hate crime “is meant to terrorize a community, not solely to victimize an individual,” as Judy Shepard, the mother of Matthew Shepard, put it.

“If blacks or Jews or Latinos or Christians — or gays and lesbians — cannot live in a neighborhood or walk the streets without fear of attack, then that climate of fear inhibits the free and full functioning of individuals and society. Laws not only make penalties to inflict on perpetrators who violate societal norms, they also make a statement about what a society values.”

This is pretty good. It’s also, I think, an answer to the charge that hate crimes perpetuate the victimization of the named group. The better argument is that, properly implemented (but will they be?), these laws send the strong message that victimizing Group [N] isn’t tolerated. Over time, this signal can diminish the anti-gay (and other) violence it seeks to address.

I did say earlier that I’m not fully comfortable with hate crimes laws. Although I agree with the Supreme Court that any ‘chilling effect’ on constitutionally protected speech is so minimal as to be of little concern, I do have a concern about prosecutors and jurors becoming overzealous (but this is likelier, I’d bet, with crimes based on almost anything other than sexual orientation or gender identity.) And if there is this tendency to prosecute for political gain, then we can expect the scapegoats to be poor and uneducated people, especially those on the extreme margins, such as transgendered persons of color.

Thus, some radically left groups oppose hate crimes laws, too, and find unexpected common ground with the more conservative voices in the LGBT movement. Here is an especially strong statement of this critical position, expressed by the Sylvia Rivera Law Project in opposition to a proposed New York State bill that included hate crimes protection:

“Hate crime laws are an easy way for the government to act like it is on our communities’ side while continuing to discriminate against us. Liberal politicians and institutions can claim “anti-oppression” legitimacy and win points with communities affected by prejudice, while simultaneously using “sentencing enhancement” to justify building more prisons to lock us up in. Hate crime laws foreground a single accused individual as the “cause” of racism, homophobia, transphobia, misogyny, or any number of other oppressive prejudices.

“Anything that expands the power of a system that damages our communities so severely is against our long-term and short-term interests. Any legal weapon that’s created to make our justice system more harsh and punitive cannot be trusted in the hands of institutions that have shown their prejudices and corruption time and time again.”

Read the full Sullivan article against this letter, and find yourself asking whether the costs are worth whatever benefits might accrue. Reasonable people might disagree.

Caster Semenya, Gender Ambiguity, and…Marriage Equality?

August 22nd, 2009 No comments

Surely by now you’ve read of Caster Semenya, the new South African running sensation who clobbered the field in the 800-meter run at the recent World Track and Field Championships on Thursday. Before the gold medal been draped around the 18-year old’s neck, controversy erupted about the winner’s gender. Why? Take a look:

Is the green-and-yellow clad winner male, or female? Semenya’s appearance is unsettling to many. Dividing the world, and the people we encounter, into two distinct genders, is one of the few certainties we allow ourselves. But in a small number of cases, that certainty isn’t available. International athletic governing organizations have had to deal with this reality for some time; the attempt to use chromosomal evidence to separate the genders had to be discarded when the results failed to account for those whose genetic make-up was more complex than the binary division could account for.

Now, the International Association of Athletics Federations, which governs track and field gender, determines gender through a much more complex analysis of various factors. According to this report in the Times, the inquiry will take weeks to complete and “requires a physical medical evaluation, and includes reports from a gynecologist, an endocrinologist, a psychologist, an internal medicine specialist and an expert on gender.” As this list suggests, whatever conclusion the body reaches based on this pile of evidence won’t be unimpeachable. Assuming the evidence suggests that Caster Semenya has both male and female characteristics, the IAAF will simply have to decide that the athlete falls on one side of the line, or the other.

Not surprisingly, Caster’s family has always seen and defined her as female; parents start with the most obvious physical evidence, and then build their gender assumptions around that, even where contrary (and for them,  less compelling) indications, begins to accumulate. In a deeper sense, the gender is less important to them than the fact that this person is their child, with unique needs, interests, and…identity. So while the IAAF must try to reduce a complex,  inherently indeterminate question to an algorithm — there has to be a gender line for athletic competitions, at least for many sports — for most purposes that line-drawing just isn’t necessary, as much as we find comfort in it. Caster Semenya is Caster Semenya.

What if Caster wanted to marry? According to the anti-marriage-equality squad, we’d first have to undertake at least some kind of inquiry into her gender, in order to determine which 50% of the population she’d be allowed to marry. On the rare occasions that the issue of gender identity has surfaced in courts, they’ve flailed. The question usually surfaces after a transsexual person (or that person’s spouse) has died, and some third-party comes in to challenge that the couple’s marriage was ever valid. The third-party’s interest may be in gobbling up the assets of the estate, or in avoiding liability in a wrongful death suit. Given the legal requirement that the spouses be of opposite sexes, the courts have struggled to come up with some metric for drawing the gender line. Some have sought certainty in the comfort of genetics; while others have looked, with equal simplicity, at the “new anatomy” and the ability to have sexual relations in a “binary gender” kinda way.

I don’t know why courts don’t simply say: This couple was married in a ceremony that the state allowed, lived their lives as a couple, and we’re not going to let some third party come in and negate that reality after one of them has died.

Oh, wait…maybe I do know. Gender non-conformists of all types make most of us uncomfortable. In one case from Kansas, the discomfort was so pronounced that the court went so far as to suggest that transsexuals couldn’t marry anyone. Caster Semenya is a gender non-conformist, too, even if her reality is worlds away from that of those with gender dysphoria. Will the governing body’s determination of her gender also determine whom she can marry? Are we that confident about the line that must be drawn for sports to apply it to every other reality, including the deeply personal issues of love, commitment and identity that form the basis of our decisions about whom to marry?

If Caster Semenya stays in her home country of South Africa, she needn’t worry. In that enlightened nation, she can marry the person of her choice — male or female. And so can everyone else, even those whose gender is quite clear.

Here’s a case where the outliers have something to tell us about our own, unquestioning commitment to the assumptions about gender that underlie so many of our laws and policies, including the ban on same-sex marriages. Procreation and “the ideal environment to raise children” — these increasingly discredited arguments for opposing marriage equality reflect a commitment to more than gender division. They are based on an idea that men and women are, and behave, in certain stereotypical ways, and that those rigid models are best for children. But if gender itself isn’t always clear, then what can we say about models that derive from it?