Note: Last week I wrote a diary similar to this one. It and other diaries and comments posted over a period last Friday-Saturday got scrubbed from the database due to a glitch in an upgrade conducted by Soapblox (our current host platform). I didn’t have a backup copy of the diary. Since it doesn’t appear that it will be restored any time soon, I have re-written it from memory and with the help of fragments captured on other websites.
Responding to a Call for Communications: Human Rights Violations Affecting the Status of Women posted by the United Nations Entity for Gender Equality and Empowerment of Women, lesbian attorneys Cathy Brennan and Elizabeth Hungerford submitted a letter last week opposing laws prohibiting discrimination in public accommodations based on gender identity and expression.
[The] proliferation of legislation designed to protect “gender identity” and “gender expression” undermines legal protections for females vis-a-vis sex segregated spaces, such as female-only clubs, public restrooms, public showers, and other spaces designated as “female only”. Females require sex-segregated facilities for number of reasons, chief among them the documented frequency of male sexual violence against females and the uniquely female consequence of unwanted impregnation resulting from this relatively common form of violence.xxi
Brennan & Hungerford are alleging that laws protecting all our rights — but in particular trans women’s rights — to use public bathrooms and locker rooms puts non-trans women at greater risk of predation by men. It’s “bathroom bill” rhetoric dressed up to look like feminism.
The problem for Brennan & Hungerford is that their allegations about the consequences of including gender identity in anti-discrimination laws are not only dehumanizing to trans people, they’re based on intellectual dishonesty and the same fear mongering used by the radical religious-right.
Like Brennan & Hungerford, I am a lesbian born with a female brain and a female body. (For a trans woman’s take on the letter, read Mercedes Allen’s post at Bilerico.) Unlike Brennan & Hungerford, I demand solid reasoning from anyone who would seek to deprive a class of people of their civil rights. So when I see members of my demographic jumping on the international stage, engaging in intellectual dishonesty while seeking to deprive others of their rights, I am compelled to call them out lest my silence be interpreted as tacit support. It is not.
1. Where’s the evidence of harm?
The burden of proof is on Brennan & Hungerford to make the case that non-trans women will be harmed if trans women’s right to access public accommodations is protected by law. They fail to meet that burden, instead writing as if evidence exists. It is a stunning display of intellectual dishonesty.
Laws are already on the books in 15 states and the District of Columbia (PDF) protecting people against discrimination in public accommodations based on gender identity and expression. Minnesota’s law has been in force for 18 years, and laws in nine other states have been in force for at least 5 years. If these laws were a threat to female safety in public facilities, there has been plenty of time for that threat to manifest. It has not. There simply does not exist any evidence of the harm that Brennan & Hungerford allege.
Brennan & Hungerford’s only attempt at providing evidence to support their thesis is to bury a link to the web page “Men in women’s bathrooms” in footnote xxi. The web page lists uncorroborated newspaper accounts of men allegedly transgressing the boundries of decency or the law in women’s bathrooms, changing rooms, etc. Despite the page author’s apparent concern for the safety and privacy of women in such facilities, she only provides one American newspaper article describing a confirmed case of one cross-dressed individual charged and released on the same day for indecency in a public women’s restroom.
That’s it. That’s the sum of their “evidence”. In a country of over 307,000,000 people, Brennan & Hungerford have only provided one (1) newspaper story about one (1) cross-dressed individual arrested for indecency in a public bathroom. One in 307 million. It is no wonder that they buried their “evidence” in a footnote, since it undermines their thesis by showing that the frequency of trans women or cross-dressed individuals endangering females in public facilities is so rare as to be virtually nil.
Massachusetts Attorney General Martha Coakley certainly isn’t buying into Brennan & Hungerford’s thesis. In a recent letter to legislative leaders in support of the Transgender Equal Rights Bill (H. 502/5. 764) now before the Massachusetts Legislature, Coakley wrote:
Over the past several years, opponents of this legislation have attempted to stoke fears about the public safety implications of this bill. Just last week, opponents began running radio ads that mischaracterize the bill to foster fear and bigotry, specifically by terming it the “bathroom bill” and threatening that its passage will permit men to dress as women for the purpose of entering restrooms to engage in unlawful conduct and claim protection under this law. Given the incorrect and unfortunate misconceptions generated by such statements, I wish to address this issue directly.
First, this bill does nothing to change existing laws in place to prosecute and punish individuals who engage in criminal conduct. As a prosecutor for more than 25 years, I can emphatically state that this bill only increases our ability to prosecute criminal conduct and protect the civil rights of all, and does nothing to restrict our ability to protect victims of any crimes. All people should be able to use restrooms and locker rooms in safety and with privacy, and that would remain the case under this new law. Allowing transgender people to use facilities that comport with their gender identity and how they live their lives is the safest and most workable approach and one that reduces further stigmatization. It is also the policy of the federal government as set forth by the Office of Personal Management which now requires federal employers to allow their employees to use the restroom or locker room consistent with their gender identity.
Second, inherent in this harmful commentary is the implication that transgender individuals are sex offenders or sexually deviant persons. Not only is this characterization inaccurate, it is deeply offensive and insulting. I note for the Committee that our office is unaware of a single instance where an individual has attempted to use this type of gender identity or expression protection as a defense to claims of criminal conduct or violation of privacy in any of the jurisdictions that have passed similar laws. Contrary to some of the commentary, it does not extend any new protections to sex offenders.
2. Misrepresenting anti-discrimination laws.
Brennan & Hungerford claim repeatedly throughout their letter that
“gender identity” legislation incorporates stereotypical ideas of “what is female” into the law.
This is a puzzling claim, since gender identity anti-discrimination laws do precisely the opposite. This is clear when reading the relevant portions of the laws, which Brennan & Hungerford quote extensively in the body and footnotes of their letter. The text of the laws in the following states, as provided by Brennan & Hungerford in their letter, is typical for such state laws:
* Nevada defines “gender identity or expression” as a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.
* Hawaii defines “gender identity or expression” includes (sic) a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.
I placed “regardless of” in bold text to emphasize that far from encoding sex stereotypes into the law, these laws protect people from discrimination based on sex stereotypes.
3. Overblown claims of victimhood.
The radical religious-right has made a veritable industry of claiming to be the targets of systematic harassment and threats by the groups that they malign and seek to deprive of civil rights, namely gays and trans people (cf ProtectMarriage.com v. Bowen and Doe v. Reed). It is disappointing to see two lesbian activists using a similar tactic.
In the opening paragraph of their letter, Brennan & Hungerford write that
Finally, individual GLBT activists have threatened individuals like us who oppose this development in an attempt to silence us from raising legitimate concerns about this legislation.
The reader must burrow into the unrelated footnote iii to learn that “individuals like us” is really just Cathy Brennan.
Nobody deserves to be threatened or harassed for stating their opinions, no matter how objectionable those opinions may be. I have seen one of the threatening comments aimed at Cathy Brennan, and it is disgusting and beyond the pale. However, Brennan & Hungerford lose credibility and when they make false claims about the magnitude of threats and harassment allegedly aimed at those who share their viewpoint.
4. Failure to present a viable alternative.
Brennan & Hungerford propose an alternate definition for “gender identity” that they would support:
We support the following definition of “gender identity” – a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, or related condition, as deemed medically necessary by the American Medical Association.”
If a law using this language were adopted, any person entering a public bathroom, fitting room or locker room could literally be asked to “show me your papers”. Unless all citizens are to be deputized, the police would presumably enforce this law. This would clearly violate the 4th Amendment to the U.S. Constitution’s prohibition of unreasonable searches by the government.
There are other deficiencies in Brennan & Hungerford’s letter to the United Nations, but those identified above should be enough to illustrate the vacuousness of their claims and the dishonesty of their tactics. I encourage the United Nations Entity for Gender Equality and Empowerment of Women to use their letter as an example of the sort of dehumanizing vilification that trans people are often the target of and need to be protected from.