I hesitate to jump into these shark-infested waters, but here goes.

I certainly have my own opinion on the “transsexual” vs. “transgender” debate that has ignited many a flame war on the internet over the last few months between those who want to separate our community based on those who have had or, at least, want to have, SRS, from everyone else, but I'm not going to express that here. Instead, I'm going to take a position that I’ve never seen expressed by anyone else, although some have come close. My position comes from my background as an attorney and my understanding of how anti-discrimination laws are written and are intended to operate.

Here's what I know to be true: the dispute about who is transsexual and who isn't is irrelevant to the fight for protections for transsexual, transgender, genderqueer and every other gender variant or gender nonconforming person in this country. Why? Because of how anti-discrimination laws are written for both practical and constitutional reasons.

Why anti-discrimination statutes don’t use terms like “transsexual” or “transgender”

If you look at federal or state anti-discrimination laws, you'll see something very interesting. Although the primary purpose of the Civil Rights Act of 1964 (including, Title VII, the federal ban on sex, race and other discrimination in employment) was to end discrimination against African-Americans, if you read it, you will see that nowhere does it say that it is illegal to discriminate against African-Americans. Instead, it says that it's illegal to discriminate against anyone on the basis of race. There are two reasons for this approach.

First, using terms like African-American, Hispanic, Asian-Pacific Islander or Native American would lead to difficult, if not impossible, problems of determining in any given situation who fits into the relevant category. For example, I have a friend who identifies as both African-American and Native American. However, upon seeing her, many people may doubt that she is anything but “white.” So, where should the cut-off be? Should it 1/8 or 1/64 native or African-American blood, which is the cut-off used by some Native American tribes for tribal membership? Should it be how the person self-identifies? Or should it be whatever a court or jury, employer or shelter operator decides a particular person is? Our courts are already bogged down enough; we don’t need to compound that problem by introducing such difficult, and, ultimately, unnecessary, issues.

Using such vague categories leads us to the second reason why such categories aren’t used in anti-discrimination laws: statutes that are so ambiguous that they allow for arbitrary distinctions and enforcement are “void for vagueness” under the Due Process Clauses of state and federal constitutions. In other words, if whether one person is or isn’t protected depends on distinctions that can’t be made on any sort of objective basis, so that different people may reasonably interpret and apply the law in different ways, the statute is void and unenforceable.

In addition, there is another constitutional problem with using terms like African-American in anti-discrimination laws. If a statute protects only people who fall into one racial category, but not another, what you have done is enshrine in the law the very racial discrimination that you are trying to eliminate. That, in turn, makes the statute unconstitutional as a violation of equal protection under both state and federal constitutions. Therefore, for a statute meant to eliminate racial discrimination to be constitutional, you have to ban all racial discrimination, not just discrimination against the particular minority group or groups you are most concerned about protecting. That’s why the Civil Rights Act of 1964 and other federal, state and local anti-discrimination laws make it illegal to discriminate on the basis of “race,” not particular racial categories.   In other words, by protecting everyone against such discrimination, you avoid claims that the statue violates equal protection.  The other benefit of that approach relates to the first problem discussed above. By using broad categories like “race,” you eliminate the need to decide what race someone belongs to.

For the same constitutional and practical reasons, the 1964 Civil Rights Act and other anti-discrimination laws don’t ban discrimination against women; instead, they ban discrimination against anyone, male or female, man or woman, based on “sex.”

Lastly, and, perhaps, most importantly, this approach fulfills one of the most important founding principles of our county: the belief in “equal justice for all,” not just the rich, not just whites, and not just men, and not just those who are poor, black or female.

How does this apply to protections for trans people?

What does all this mean when we start talking about protecting members of the trans community (however broadly or narrowly you want to define that community) from discrimination because of who we are? If anti-discrimination statutes intended to protect our community used terminology like “transsexual” or “transgender,” whenever any of us tried to invoke those protections, we would find ourselves in the same endless discussions about what those terms mean and who belongs in which category that have been taking place over the last several months, and which I believe are highly damaging to the goal of ensuring that we can all live our lives as who we are.  Any such statute would, thus, be unconstitutional as both “void for vagueness” and a violation of equal protection. Why equal protection? Because everyone has a gender, gender identity and gender expression. Therefore, everyone should be protected against discrimination on that basis, since none of those characteristics are relevant to whether a particular person can do a particular job or should be allowed to buy a house or rent an apartment, regardless of how they identify. (As for the problem of bathrooms and other sex-segregated facilities, see below.)

Consequently, when you look at the proposed Employment Nondiscrimination Act (ENDA) or any of the state or local statutes protecting our community from discrimination, you’ll see that most of them ban discrimination based on “gender identity” or “gender identity and expression,” not based on whether someone is “transsexual” or “transgender.” (A few subsume those categories under the definition of “sexual orientation” and then prohibit discrimination based on that term.)  Under this approach, everyone is protected against discrimination based on their gender identity (i.e., the gender they identify as internally), regardless of whether or how that identity is expressed outwardly, and against discrimination based on their appearance, mannerisms and other behavior that are interpreted by others as an expression of gender, regardless of the person’s gender identity. In other words, everyone has a gender identity and a gender expression; therefore, everyone is protected against discrimination on that basis.  Thus, the housewife who is too harried with housework and delivering kids to and from school to put on makeup or a dress can’t be kicked out of the grocery store for wearing her husband’s flannel shirt and buzz cutting her hair because she doesn’t have time to care for it (or simply likes it that way.)  Similarly, the straight man who, for whatever reason, talks with a lisp or has what others see as effeminate gestures, and the straight woman who has a square jaw, large hands and feet and facial hair, are protected from discrimination simply because someone decides they’re not masculine or feminine enough to qualify as a man or a woman. Those people, too, suffer the effects of prejudice deriving from our society’s gender norms and deserve protection against discrimination just as much as trans people.

(One of the most famous cases relevant to protecting trans people against discrimination involved a cisgender woman, not a trans woman. In that case – Price Waterhouse v. Hopkins, Ann Hopkins was a CPA working for the accounting firm who was eligible to become a partner. She was denied partnership, however, because some of the existing partners thought she was too aggressive for a woman, and needed to dress and act more femininely. When she got to the U.S. Supreme Court, the Court held that Price Waterhouse had violated the ban on sex discrimination under Title VII by discriminating against her because she failed to comply with the “sex stereotypes” held by the existing partners for how women should look and act. This is the legal theory that has since been applied to protect trans people against discrimination under state and federal statutes that ban sex discrimination, even though they don’t explicitly bar discrimination based on gender identity or expression. The best and most recent example of this is Diane Schroer’s decisive victory over the Library of Congress.)

But what about bathrooms?

But what about sex-segregated facilities like bathrooms, locker rooms and showers? Personally, I wish we could do away with such segregation and people could just get over their discomfort and fear concerning their own and other people’s bodies and bodily functions. That’s not likely to happen in my lifetime, however, and sex-segregated facilities are going to continue to exist. So what do we do?

When we are challenged for entering a restroom, it’s because someone doesn’t think we look feminine or masculine enough, or, if you wish, because we look too masculine or feminine, for the sex that restroom is designated for. When those who oppose trans women’s use of women’s restrooms are asked why, they invariably respond with fears about men in the women’s room and the risk of rape or other sexual predation. When pressed, they will usually expand that by explaining that they don’t want anyone with a penis in the women’s room. But, of course, no one knows what genitalia any of us, cis or trans, carries when we use such spaces (at least, not in the absence of criminal activity or a close, personal relationship). Instead, people decide who is a man or a woman based on their perception of the other’s gender expression (clothes, makeup, mannerisms, etc.) and visible portions of the person’s body (face, hands, feet, etc.), and then make the assumption that this person must have a penis or a vagina and, therefore, is a man or a woman. It is this process that leads to masculine women and effeminate men, whether gay or straight, being confronted, ejected and even arrested for using a restroom for which, if anatomy is the determining factor, they are certainly qualified to use. It is also this process that results in post-op trans women, and, less frequently, trans men, being subjected to the same treatment even though a “panty check” would reveal the same genitalia as the intended users of that space. Finally, it is because this process results in even post-op trans people being excluded from sex-segregated facilities to which their genitalia should give them access that limiting trans people’s access to such facilities based on whether they have had genital surgery, or plan to do so at some point in the future, is unworkable. (It also grants doctors, psychiatrists, therapists and/or the government the power to determine who is and is not “woman” or “man” enough to use such facilities, a power I am not willing to cede to anyone.)

So, again, what do we do about sex-segregated facilities?  Here’s my proposal: If the statutes we pass bar discrimination based on gender identity and/or expression, then it is unlawful to deny someone access to a bathroom, for example, simply because someone thinks that person’s gender expression isn’t masculine or feminine enough for that space. In other words, if someone is presenting as a woman, she has the right to use the women’s room, and vice versa for men’s rooms, regardless of whether zie is post-op, pre-op or non-op, and regardless of whether zie identifies as transsexual, transgender, genderqueer, crossdresser, drag queen or whatever other gender category zie cares to claim. Since, barring illegal activity or a close, personal relationship, no one knows what’s in another person’s pants, if it’s wrong to exclude a butch, cisgender woman from a women’s room, then it’s equally wrong to exclude anyone expressing hir gender as a woman from that same space. In either case, the exclusion would be based not on the person’s actual anatomy, but on someone else’s assumptions and prejudice about who is “really” a woman.  Our country has always opposed unequal treatment based on personal assumptions or prejudices about who is and isn’t entitled to the benefits of our society, and I see no reason that we should deviate from that principle when it comes to sex-segregated facilities. (Of course, the same arguments apply to men’s rooms and people who present as men.)

Okay, you say, that takes care of bathrooms. What about showers and locker rooms where nudity sometimes takes place?  Here, I believe the best solution is that proposed in ENDA, since it gives proper respect both to concerns about personal privacy and to each individual’s gender identity. As introduced, ENDA contains a specific exclusion that provides that an employer’s “denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable” would not violate that statute, “provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity” at the time the person was hired or as established by a later notice to the employer “that the employee has undergone or is undergoing gender transition.” (ENDA, Sec.8(a)(3); my italics.) In other words, employers could continue to maintain sex-segregated locker rooms and showers. However, in determining who is allowed access to the men’s or women’s facilities, the employer must recognize the employee’s announced gender identity with the sole exception that, where nudity is “unavoidable,” the employer may require someone whose presence may make other employees uncomfortable to use separate facilities, but only if those separate facilities conform to the person’s gender identity. (In other words, an employer couldn’t make a trans woman use the men’s locker room, or vice versa. Note also, that this could be applied to cisgender, not just trans, men and women. When butch women and effeminate men start getting excluded from the men’s and women’s locker rooms, I suspect that we’ll win over quite a few allies to the idea that segregation based on someone else’s perception of our gender expression is patently ridiculous.)

(Some people reading this may wonder how this principle applies with respect to things like dress codes. Basically, if an employee is hired as a man, ENDA allows the employer to require him to conform to the dress code for men until such time as the employee informs the employer that zie is transitioning to female, or vice versa. (Sec. 8(a)(5).) After the employee transitions to living full time in hir affirmed gender, zie must then conform to the dress code for that gender. This scheme is actually quite elegant and workable in practice. In addition, it has the advantage of not requiring the transitioning employee to prove to the employer that zie is “really” a woman or vice versa by providing a letter from a doctor or therapist, or proving zie has undergone SRS, hormone therapy or any other medical treatment. Instead, it allows the employee complete freedom to work as the person zie knows hirself to be, without interference or second-guessing by anyone else.)

So, there it is. It isn’t necessary to determine whether someone is transsexual, transgender or anything else to provide legal protections for everyone, cis or trans, against arbitrary discrimination because zie doesn’t fit someone else’s concepts of who is “really” a woman or a man, or to determine who can use sex-segregated bathrooms and other facilities. Therefore, I, for one, intend to ignore that debate and get on with the business of enacting fair and just legal protections that allow all of us to simply be who we are.

[Crossposted on my blog, Living My Life.]

Abigail Jensen is a trans woman and attorney in Prescott, Arizona, and a general rabble rouser on trans, as well as LGB, issues. She also serves on the Board of the local women's shelter and the Board of TransMentors International, which, among other things, is currently working on its TransForm Arizona conference scheduled for Phoenix, Arizona, on October 20-23.

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