Tuesday, June 10, 2008

Calling all ENDA defendas?

OK, so here I am in my first serious post at transgroupblog. What better way to start than by probably alienating 99% of the readership?

I have been thinking about ENDA and the implications of a version of ENDA that protected against employment discrimination based on gender presentation. And I have some concerns. I'll start by hedging a bit: I do perceive the need for workplace protection. I am also a firm believer in the legal aphorism "hard cases make bad law". So by presenting some hard cases, I might not be giving a fair shake to the fundamental tenets and overall protection of an ENDA-type statute for transgenders.

So let's jump right into the worst fact pattern. We have a totally unpassable (genetic male) crossdresser who, while sincere about being a CD, makes no effort whatsoever to hide her masculinity. I won't bother drawing the mental picture; you have all seen her. Let's not kid ourselves: many TRANSGENDERS cringe to see her out and about in public, unless at a gay bar or similar environment. Presenting en femme, this person would alienate customers, disrupt businesses, anger colleagues, worry the person in the adjoining bathroom stall. To be protected?

We can vary the facts, and we probably vary the intuitive "right" outcomes. If the person is in a back office environment, problems of appearance and presentation seem less damning. If the person is transitioning to full-time female, one might be expected to accept an imperfect degree of passability that might not be acceptable in the case of a part-time crossdresser. If the person is terribly masculinized in features but flawless in deportment, or is only missing a feminized voice, or on the other hand wants to work as a Vegas cocktail waitress...well, I think each of those presents a possible difference in the legal protection that seems appropriate.

And maybe not. If you say "yes - protection for all of the above!", kudos to you for an admirable degree of consistency. But at the same time I suspect that position is so far outside the mainstream as to have little likelihood of ever being legislated into law, much less implemented in fact. (Yes, I am aware one could call this an implicit "bigot's veto". That, however, is a difficult argument to win when the bigots are as numerous as they are here.)

If we assume that there are some expressions of gender identity on the job that are not going to be fully protected, the alternatives that immediately leap to mind are disquieting. I can imagine four - and would like to hear other suggestions:

1. Protection should be accorded to transitioning/transitioned transexuals only. I don't mean "surgery required" or anything like that - rather, a requirement that the person in question has effected a full-time, public, socialized transition to the other gender. Not helpful for CDs or people who eschew the gender binary, but I would still venture to assert (with no proof whatsoever) this would be more intuitively socially acceptable to the population at large.

2. "It's the thought that counts": subjectivity is what matters. A person who is sincere about needing to vary gender presentation in an employment context gets the protection. This might result in segregating out purely fetishistic trans folk. Doesn't really seem to help anything though, and as I have made clear I hate this sort of "us versus them" divide based on a TG's motivation.

3. We're protecting gender identity only, not gender expression. This is a cop-out, not a solution. Telling a person it's ok to be trans, but not to manifest that identity in any external sense? C'mon...

4. Some sort of passing privilege becomes the de facto, if not de jure, threshold requirement for protection. In other words, if the transgendered individual gets the cumulative presentation package "close enough" for the applicable workplace context, they get protection. If not, they don't. I expect/fear this is what would result by default from an ENDA statute that includes gender identity/expression. Maybe it's better than no protection at all, but it still seems deeply unsatisfying as an answer.

So what do y'all think? Is this a case where the perfect is the enemy of the good, and we should take whatever protection we can get? Do we take it on faith that cases like this will be few and far between, and it's not worth worrying about the hard calls? (If so, how do we ready ourselves for an onslaught of arguments from opponents who will have a field day stoking fears about the worst cases?) Do we allow the law to divide us up by criteria that many of us consider unacceptable segretations within our own community? Do we tilt at the windmill and seek the fullest protection for the least among us, knowing there's no way in hell we'll succeed? Is there an alternate approach or path that I am missing that threads the needle successfully?

Fire away!



Mercedes said...

"Passing privilege" is not a policy conducive to consistency. I've seen other transsexuals balk at the apperance of some TS Women (transmen have usually had a tendency to be lucky this way, though not always) who have transitioned late in life, their bodies having been ravaged by T, heavy brows, broad shoulders.... I've been asked "how can you stand to be seen with her in public? Aren't you afraid of being outted?" Makes me angry every time. Let's start first with what's at the root of all of this, the fear of association. And no matter how thinly you slice and dice the community into little slivers of groups who will seem "palatible," there will still always be people who might "embarass" you, in either appearance or behaviour. Sooner or later, you will have to reach a point that your pride and self-respect are secure enough to not be threatened by such associations. Until then, you'll likely be caught up in shaky arguements about who is "real" and who isn't.

Now, to your points:

1. One of the most effective arguments for inclusion in the first place was how gender expression is commonly used against men who are deemed "too feminine" and women who are deemed "too masculine." Khadijah Farmer, Virginia Soto and Stacey Fearnall are all recent examples of the latter, and demonstrate to the public at large how we ALL need this inclusion.

Also, how do you determine who is sincerely transitioning? Some in the community don't know for themselves how far they need to go. And to base that on something like a "carry letter" (which was one suggestion I'd heard elsewhere) just serves to gatekeeper the process even more, not to mention the expense of seeing the therapist for however many visits they'll insist upon before writing such a document (if they even ultimately do; some resistent therapists have been known to string people along or reject them entirely). Of course, this is not a problem for those who are affluent before transition... I think some in the community have this persistent memory block regarding those who are not.

And finally to point #1, this would not be "more intuitively socially acceptable to the population at large" -- I guarantee you that the people who are morally offended at the thought of "sex changes" will still be presenting the transgender boogeyman as sexual predators in washrooms in the way that they STILL were in order to vilify ENDA even after we were dropped from the bill. Panic value like that will be just too good to pass up.

2. Define "purely fetishistic trans folk." I'm curious. I'm (for the time being) non-op for spiritual rather than sexual reasons, but have often been called that by elitists.

And if you can't abide with consistency, there will always be some form of "us versus them."

4. And tough beans for the TSes who are living full-time for years but have been so affected by hormones that they will never achieve "passing privilege?" Hey, Barney! We've got a new version of incrementalism! You're gonna love it!

Besides, how do you quantify that in law? What criteria do you define passing privilege with in a legal document that doesn't simply grow more and more exclusive?

Fire away? I don't need to. Here's another bullet. You've still got one more foot.

SeaMonica said...

Mercedes beat me to it, and was rather accurate in her accessment.

Why are you assuming that if this law passes that crossdressers will all of a sudden lose all fear of being found out and ridiculed and flock to work in droves in they best Sunday-go-to-meeting dresses? That is the same crap the Religious Right nuts try to pass out. "A man in a dress teachng our children!" It's BS to the Nth degree.

Besides, the law has a dress code policy that will prevent that. So, it's a non-issue. BUT, it will protect crossdressers from being fired if they are found to be crossdressing away from work, like Peter Oiler was. (Google search the name.)

Also, I noticed that you seem to think the transgender community is made up of just crossdressers and transsexual women. Where's the men in your points?

One of the biggest point you seem to miss in all of this is that the law will protect any man or woman, regardless of their sexual orientation or trans status, from being fired because they don't meet society's narrow gender parameters.

Dana said...

I sincerely hope this post is meant as an effective way to start dialog (if so, kudos Erica!) and not a sincere belief that any of the slice'n dice the trans community by totally subjective forms of passability solutions suggested are in any way actually socially or legally workable, let alone ethically sound.

I think the previous comments do a great job of dissecting and dismissing the original post suggestions. I would just add that once you go down the path of "passable" and "not passable" tests, you've totally lost sight of the original intention of the movement (and the GENDA laws) in the first place, which to me at least, is to make it so all forms of gender expression are protected against discrimination under the law.

Erica Foley said...

Ordinarily I don't like responding to comments on a blog entry I wrote, but I will bend the rule a bit here. I do NOT support any of the divisions that I suggested. On the contrary, I find them all troubling ("disquieting" was probably too weak a word).

Dana's first paragraph more succinctly got across what I was trying to ask: Should an ENDA law protect all forms of gender identity and expression, irrespective of how outré or socially problematic they might be? If not, where do we draw lines - or do we let the lines draw themselves in practice?

SuzyQ said...

There is an assumption that there is a "transcommunity".

After SRS most of us disappear. I would no more go out in public with an obvious TV to anything other than a gay event than I would wear a t-shirt (Transsexual Menace last worn in 1998) to anything other than an LGBT event.

WBTs tend to assimilate as women and as such our personal feelings regarding obvious TVs in the women's room may just as easily be EEEKK.. Grotty.. as accepting.

Having received SRS for a medical condition in no way obliges us to toe some sort of Stalinistic Party Line.

Nor does it give anyone the right to call us names. we owe TGs nothing. We can be supportive of "your" cause if we so wish but our giving support is not required if we do not wish to give it.

As for me I have other causes. Environmental/Feminism/anti-war

SuzyQ said...

Not all of us are members of this so called transgender community.

Many of us, especially those of us who are post-SRS do not consider ourselves transgender.

We do not necessarily identify with your struggle nor do we consider it in our interests to be associated with transvestites.

We had surgery to correct a medical problem and not to take up membership in a social cause we may or may not support.

Just because we had SRS does not make us automatically members in the transgender community. We may choose to be part of that community or we may assimilate into our reassigned sex and be ordinary women or men.

Sometimes the so called transcommunity seems like this old time Stalinist cell where if you ever hung out with, were friends with or passed through on your way to somewhere else you are for ever labeled. And that one is a fantasy pushed by politicos.

Honestly I have better things to do than to fight for the rights of obvious TVs to use the ladies room. If they do and get in trouble I don't much care.

All I can say to people who are going to get clocked every where is: "For you own sake and safety live in or go to places where you aren't going to get killed or hurt or arrested."

Betty said...

In a perfect world we don't draw lines.

We don't live in a perfect world.

The above sentences seem to me to reflect, to me, the conundrum we face.

I have no patience with trans folk who degrade other trans folk based on passability. It's just high school bullshit which we should find a way to get over. But... see my second sentence.

We are what we are. And generally speaking as one who's met a bunch of trans folk all over the place, we're a pretty interesting conglomeration of people who without the trans thing to bind us together wouldn't have a whole lot in common. I think there's something to that, actually.

It would do us a world of good to recognize that our differences can be the glue to make the whole lot of us stronger, but we're human and as such find safety in easy answers, i.e., I agree with that person because they validate my choices!

Which is bullshit.

We can't be a community if we're only in it to find a perfect reflection of our own narcissism.

I often tell people that trans folk would make Narcissus blush.

I've long thought that some kind of national/global seminar that includes all transpeople with the express purpose of finding some sense of common purpose would be a good thing. You know, break it down into all the little subgroups that exist but make sure opposing viewpoints are on each panel and that everyone is allowed into each session.

But I'm a dreamer. I just hope I'm not the only one.

Delightfully Imperfect said...

In a perfect world, where people are all treated with repect, there would be no need of any law to protect the maltreatment of others; however, we do not live in such a world. I lobbied for the rights of all transgender people, not simply for some. The right to work should be an inalienable right.

SuzyQ said...

"We are what we are. And generally speaking as one who's met a bunch of trans folk all over the place, we're a pretty interesting conglomeration of people who without the trans thing to bind us together wouldn't have a whole lot in common. I think there's something to that, actually."

Many WBTs discover that a few years past SRS there is not "trans" thing that binds us anymore. Having had a similar operation some years in the past does not form a group identity. Nor the basis for friendship. Common interests form that basis.

SRS was over 35 years ago I have maybe a half dozen friends who also had SRS and I'm an activist with a post-SRS mailing list.

I don't feel any connection to some sort of fictional transcommunity.

Sara said...

I'm going to take them point by point:

1. I assume a special ID card issued by the DHS would suffice? Where would the threshold for gender appropriateness be nailed down, please? I have a coworker with a penchant for really obnoxious, almost feminine shirts and I'd love to have some legal backing to take to management to get him to stop wearing the abominations...

2. I'm thinking that if someone is going to work dressed as part of a true fetish experience, something about his presentation will stick out like a sore thumb and thus this one would be covered by sexual harrassment laws.

3. But gender identity (in a legal sense) is tied to ones "registered" gender on his or her ID (driver's licence, state ID, etc) and thus, to that state's requirements for gender change. See #1 (DHS Federal ID)...Still, once it is changed on the ID, the problem is solved as long as your appearance matches the card. Bummer if it's the day before your electrolysis appointment.

4. Ah, yes. I am going to coin a phrase, 'wearing cis-face'. Of course, there is a logical falacy in that if you pass that good, you are in practical stealth and there is no issue to argue.