Everybody Has a Gender Identity

We recently saw a review of surveys that concluded that approximately 0.3 percent of Americans identify themselves as transgender. That means that 99.7 percent of people do not identify themselves as transgender, and the great majority of those have never really given the matter much thought. At the same time, as we saw recently with the videotaped beating of Chrissy Lee Polis in a Rosedale McDonald's, transgender people are very often the targets of abuse, discrimination, and violence, simply because of who they are. In that case, some McDonald's customers decided that Ms. Polis was a man and beat her up for using the women's restroom.

This group needs protection, perhaps more than any other. Yet the fact that they are such a tiny minority, and that the majority of cisgender individuals have no insights or empathy for them, makes it very difficult to drum up a campaign to motivate legislators to pass a bill to protect transgender people from discrimination.

A blogger named Arizona Abby published a pretty good discussion of this topic recently. I will pick and choose from her text here:

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. Why the “Transsexual” vs. “Transgender” Debate is Irrelevant to the Fight for Equal Rights

It would in fact be impossible to list every race, ethnic group, every religion -- can you imagine a law that made it illegal to discriminate against, say, Baptists and Mormons but not Presbyterians? Instead, the law just says you can't discriminate against a person because of their religion. Much neater, much easier to enforce -- and it affords protection to everyone.

Skipping down...

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.

For these reasons, even though we say that Montgomery County has a "transgender antidiscrimination law," it doesn't. It has a law that says you cannot discriminate on the basis of gender identity. It protects me just as much as it protects you, though of course one of us may be much more likely to need the protection.

This year our Maryland state legislature failed -- and the word is applicable with all its connotations here -- to pass two bills important to LGBT citizens. One had to do with same-sex marriage, and received a lot of press. The legislature's collapse on this issue revealed the weakness of our leaders as well as the ineffectiveness of the activists who had the bill in the bag, had a clear majority in favor of it, and let the victory evaporate. This was a big topic -- for instance, Maryland Politics Watch wheezed back to life yesterday after a month without breathing to compare the performance of our governor with the governor of New York, who was able to get a marriage equality bill passed in both houses of the legislature. You will not see in that article a single occurrence of the word "gender." The Maryland gender identity nondiscrimination bill also failed in the legislature, same thing, a majority would have supported it, but our pusillanimous courageous leaders in Annapolis let it die in committee. They cowered when the radical right threatened to say bad things about them, and let the gender identity bill die rather than face the noise machine that would surely have reverberated if they had passed it.

Now Arizona Abby makes a point that I think is probably central to winning the debate.

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.)

Politicians respond to votes, and when 99.7 percent of people identify with the gender they were assigned at birth it is going to be difficult to get any politician to go out on a limb to protect the other 0.3 percent. But the fact is, a gender-identity nondiscrimination bill doesn't only protect the tiny minority, it protects everybody.