Enough With the Bathrooms: Stigma, Stereotypes and Barriers to Trans Equality

@HuffPostGay

Recently, attempts to effectively implement the right to non-discrimination for trans people in the United States has been met with fear-mongering about inappropriate use of public bathrooms.

In Maryland, a lawmaker reportedly expressed concerns that predators and pedophiles might enter women's bathrooms if that state passes a bill, currently under consideration, to prohibit discrimination based on gender identity. In Arizona, some parents were worried about trans children choosing the most appropriate bathroom for themselves, lest this "infringe" on other children's "privacy." And opponents of a non-discrimination law in California, already in effect, are gathering signatures to have the law repealed, because, they say, it violates the rights of those students who may be uncomfortable sharing a bathroom with a person who is trans.

In fact, integrated public bathroom use seems to be the top objection raised in the United States to advancing equal rights for trans people, especially children. There are 3 main reasons for this.

First, there is a general discomfort among many Americans with co-ed social interaction as anything other than (straight) "courting." Over the age of 5, co-ed sleepovers are seen as inappropriate by many, and school dances as early as 5th grade push the notion that you really should only show up with a "date" of the opposite gender. What children take away from these overly gendered (and hetero-centric) rules of interaction is anyone's guess, but it is clear that many parents view co-ed friendships with suspicion.

Secondly, there is a common conflation of nudity and sex in US media and public discourse. It is telling that the discomfort around trans people's public bathroom use is about potential sexual interactions rather than actually using the toilets.

As a logical proposition, the argument that bathroom use must be strictly divided on the basis of genitalia in order to prevent public sex has always confused me. For starters, experience shows that such interactions can and do happen without any connection to trans people. Most of us remember the 2007 bathroom stall incidentthat ultimately had Senator Larry Craig of Idaho resign, and news of cis straight couples having sex in public bathrooms surface with monotonous regularity. Moreover, it would be impossible to police genitalia-based bathroom use without engaging in precisely the kind of "peeping Tom" activity those opposed to non-discrimination protections for trans people claim inevitably would follow the adoption of such measures.

Third, and most importantly, the linkage between trans equality and public bathroom use surfaces the stereotyped notion of trans people as somehow over-sexed, "perverted" or perhaps just "making it up." I have previously written about the comment reportedly made by a lawyer who was arguing against a 6-year-old trans girl's right to use the girl's bathroom at her school, with reference to the notion that the girl might be lying about her gender identity and really just want to see other girls go to the bathroom. Unfortunately, such preconceived notions about trans people just making it up or being over-sexed are not isolated to this case.

To be clear: gender identity is not about sex, it is about who we are. The founder of the website "We Happy Trans," Jen Richards, recently wrote a great piece about the fact that the trans community is as diverse as any other. Shocking, I know (not). The truth of the matter is that everyone has a right to non-discrimination, and that trans people pretty much everywhere face unique barriers to exercising this right because of stigma, stereotypes and legal obstacles to changing gender markers.

It is ridiculous that one of those barriers consistently should be someone else's discomfort with sharing a bathroom with people whose genitalia may or may not look like their own. Especially because the main point of those opposed to non-discrimination measures is that no one should be looking at anyone else's genitalia in the first place.

I say, enough with the bathrooms. No one should not have to pay for someone else's prudish illogic.

Dress Codes and Other Sorry Excuses for Policing Identity

@HuffPostGay

Last month, the fifth grade parent group at my daughter's school had the first of many conversations about how to mark our children's transition to junior high. Unfortunately, the issue we discussed -- whether the kids would be wearing caps and gowns at the end-of-year celebration -- sidelined a much more important issue: what the kids would be wearing under these gowns. (My daughter's school had sent out a notice to parents that boys must wear one thing and girls another.)

For many children, a gendered dress code may be just another imposition by adults, and to some it may seem small compared with decisions related to bedtime, computer usage, and the precise meaning of the phrase "clean up your room." But to others it is a big deal. Indeed, clothing is such an essential expression of who we are that international law recognizes it as a human right to wear what we want, barring reasonable restrictions for the purposes of safety or to protect the rights of others.

And it is precisely because clothing can project our identity so concisely that the clothing associated with particularly stigmatized populations is vigorously policed around the world. For example, several European countries and some North American jurisdictions place restrictions on head coverings. These restrictions are closely linked to discomfort with Islam and are based on the negative and erroneous stereotype that Muslim women are "oppressed" and "submissive." In fact, even where headscarves are not explicitly prohibited by law, women can be fired for wearing them, and many are discriminated against even before landing a job.

Likewise, many jurisdictions enforce strictly gendered dress codes in public by eitherrequiring specific attire or criminalizing cross dressing. These restrictions are tied to stereotypes about sexuality and sex. Cross dressing is conflated with transgenderism, which again is conflated with an insatiable, predatory, or "perverted" sex drive. A good example of this is the comment reportedly made by a lawyer who was arguing against a 6-year-old trans girl's right to use the girl's bathroom at her school. "How do you know if someone is really thinking this way or not?" the lawyer is quoted as saying. "How do you know if someone just wants to go in the restroom and be a peeping Tom?"

The suspicion directed at trans people, cross dressers, or anyone whose gender expression is not traditional finds its most extreme expression in violent crimes committed against individuals who visibly do not conform to gender norms. But it is fueled by the little injustices in our daily lives. Being forced to wear clothing associated with an identity that we do not share or cannot align with is a powerful reminder that our true sense of self must be hidden to be safe.

Moreover, dress codes facilitate abuse, first by enforcing the notion that there is a "right" and a "wrong" way to dress, and that transgressers can and should be punished, and secondly by normalizing the punishment. Where we face sanctions and exclusion for being who we are (such as being thrown out of a public bathroom, being expelled from school, or being fired, for example), it is hard to avoid the basic feeling of being somehow "wrong." Over time, this feeling of "wrongness" can contribute to depression and the conviction that violence and discrimination is inevitable.

But it is not.

There is no legitimate reason for gendered dress codes, or for dress codes that enforce or prohibit a specific faith. The European Court of Human Rights has repeatedly noted that gender identity, including the right to dress according to who we feel we are, is one of the most basic essentials of self-determination. In the Americas, this sentiment finds legal expression in the adoption of several new laws that seek to protect everyone against discrimination, regardless of their gender identity.

We, the adults, need these laws because many of us have internalized gendered dress codes, which we have to unlearn. Not so for our children: They learn dress codes from us. So I, for one, will be telling my daughter that she can wear whatever keeps her warm, comfortable, and happy under her graduation gown (if she chooses to wear one).

How Do You Prove That Discrimination No Longer Exists?

@RHRealityCheck

This week, the U.S. House of Representatives finally passed the Violence Against Women Act (VAWA), which reauthorizes funding for the fight against domestic violence in the United States. The bill passed after a prolonged partisan fight over specific protections for Native-American women and lesbian, bisexual, and trans women. Also this week, the conservative justices on the U.S. Supreme Court questioned the need for the promotion of equal voting rights, and, in particular, the continued need for oversight of equal rights in states that historically have discriminated against African Americans.

Each story elicited a pundit storm of outrage over the partisan divide on discrimination on the basis of sex, race, or sexual orientation. Many politicians and justices quoted in the press perpetuated the notion that liberals care about discrimination while conservatives do not.

But that would be an oversimplification.

At the heart of the discussion about the need for both VAWA and the Voting Rights Act is a fundamental disagreement about what governments should do about discrimination, and, even more so, what they shouldn’t do.

That difference of opinion is what led Justice Antonin Scalia to refer to the Voting Rights Act—a law that was conceived of as a tool to overcome racial entitlement among whites—as perpetuating a sense of racial entitlement among non-whites. By portraying people of color as receiving, or rather demanding, special treatment, Scalia converted the legal protection of equal rights into a situation of enforced discrimination.

It is also why some Republicans cited “inclusiveness” as the reason they supported explicit benefits for generally underserved populations in VAWA, while other Republicans claimed to vote against these benefits for the very same reason. While the former acknowledge that some women need to be explicitly named in order to be visible to policymakers and service providers, the latter promote the notion that by treating everyone the same, we will somehow magically be equal.

Simply put, the difference is not so much whether someone cares about discrimination but rather if they choose to see the full range of its reach. With some notable exceptions, most people across the political spectrum recognize flagrant forms of racism, sexism, and homophobia. The real divide is on how much we believe can and should be done to overcome historical disadvantage and internalized prejudice. Should the government allow quotas in universities to promote race and gender equality? Should states actively promote a diverse workforce?

International human rights standards are clear that affirmative action can only be legitimate while it serves a purpose; when a situation of historical disadvantage has been overcome—that is, when those who were meant to benefit from affirmative action genuinely are equal—the special measures must go.

The question, of course, is how to determine the exact moment when everyone truly has equal opportunities. This is a question that necessarily will have different answers for different people. Recent studies suggest that discrimination is still a reality for many of the subgroups that benefit the most from both the new incarnation of VAWA and the Voting Rights Act: Blacks, Latinos, working women, and Native Americans. Still, the American public just reelected a Black president, and the minority leader of the House of Representatives is a woman. In other words, systemic inequalities persist even though some people manage to escape their consequences. In this situation, perhaps the best test of whether temporary special measures are still warranted is conversational. When we stop talking about how strange it is that President Obama and Representative Pelosi got to where they are, there will be equal opportunity for all.

Of course, the courts cannot use conversation as a legal test to determine when to mandate an end to temporary special measures. Conversation can, however, be a rule of thumb for the rest of us until such time where it is no longer remarkable to find African Americans or women in positions of power.

In the meantime, the onus should be on the government, including members of Congress and justices of the Supreme Court, to prove when affirmative action has run its course, both when it comes to the prevention of domestic violence and voting rights.

TV Recognizes the “Modern Family”—Why Not Governments?

@RHRealityCheck

I don’t watch “Modern Family,” the prime-time sitcom depicting “non-traditional”—e.g., same-sex, interracial, and inter-generational—couples. Still, I’m struck by how fast family realities change and how slowly laws and societal perceptions about what’s “right” reflect those changes.

The couples depicted in “Modern Family” were surely seen by society at large as more unusual in 2009, when the show first aired, than even just five years later. Today, the U.S. Supreme Court is considering two cases that might pave the way for federal benefits for same-sex couples, the number of interracial marriages is steadily growing, and the combination of reproductive technologies, longer life-spans, and the normalization of serial monogamy has taken age somewhat out of the equation when it comes to forming a family.

Even so, real-life individuals in same-sex couples, or those who live with someone of a different race or generation from themselves, often face daily struggles to protect their families from legal uncertainty and publicly articulated disgust. Depending on where we live, our intimate lives and families may be subject to criminal sanctions, unequal legal protections, scrutiny, shaming, and belittling.

Often, the protection of our families in law—while welcome—does not mean we are immune to community shaming and violence. In Latin America, for example, a wave of new marriage equality laws has not yet had an impact on pervasive community violence against LGBTI individuals. And though it is more than 45 years since the Supreme Court invalidated the prohibition of interracial marriage in Loving v. Virginia, prejudices against interracial couples—in particular where one of the partners is Black—are expressed frequently in social media and in some cases result in discrimination.

This tug-of-war between perceptions, laws, and reality expresses itself clearly where courts have to decide to what extent legislators get to put their own—or their constituents’—prejudices before principles of equality and facts about child welfare.

This week, the European Court on Human Rights issued a ruling in one such case. The court held that Austria had violated human rights by denying two lesbian women a proper evaluation of their adoption petition. One of the women had petitioned to adopt the biological son of her female partner, a child they both had been parenting since infancy.

The Austrian government argued that its adoption laws are based on the notion that all children ideally grow up with a father and a mother. The European Court on Human Rights countered that this vision does not adequately protect child welfare and certainly is not enough to implement discriminatory laws. So far, so good.

However, the case also permitted subjective perceptions of what a family should be to persist in the law. In this week’s ruling, the European Court highlighted the fact that Austria allows unmarried different-sex couples to adopt each other’s children, whereas unmarried same-sex couples cannot (and same-sex couples are not yet allowed to marry in Austria). Had Austria reserved adoption for those who are married and marriage for those who are straight, a close read of the ruling indicates that the court might have allowed this; after all, the Court had allowed precisely this set-up in a 2012 ruling involving France.

To be sure, governments have the mandate, and even the obligation, to encourage family structures that benefit society generally and children more specifically. And the laws and policies that flow from this mandate must to some extent be subjective. The state may, for example, believe that marriage has a value in and of itself, and not only as it relates to parental and economic stability, and, as such, seek to promote marriage through tax structures and inheritance laws.

But beliefs only go so far. The obligation of the state to protect the human rights of both children and adults must find its expression through science and facts. One fact is that same-sex couples and LGBTI individuals already parent children. Another, that the welfare of children correlates with parental support and love, and not with the parents’ sexual orientation, race, identity, or age.

But the overarching fact that governments across the world should address immediately is that there are any number of “modern families” who are discriminated against by law and ostracized in their communities.

Trans Inclusion: Trust, Verify, Educate

@RHRealityCheck

Last week, the pundit-sphere erupted in vicious back-and-forths over the (lack of) space for trans women in mainstream feminism, and how to talk about transgender people to begin with.

The comment that led to the storm has since been described by the author, Suzanne Moore, as a throw-away line, and, while certainly thoughtless, it was indeed a minor and non-essential component of the essay in which it appeared. In short, in an article about the current state of women’s rights activism, Moore described the perfect body women are expected to have as “that of a Brazilian transsexual.” 

A twitter-storm of criticism ensued, making the point that trans people are victimized and excluded by mainstream feminism (I am paraphrasing the hostile tone of this debate which went both ways). The controversy peaked when the Observer on Sunday published a retort by another writer, Julie Burnchill, that included such offensive language about transgender people that the Observer ultimately took it down. 

It is obvious that not all women face the same challenges. Every disadvantaged group of humanity has a different history of exclusion and suffers in different ways. How we see ourselves, how others see us, and how we believe they see us: all of this has an impact on our experience of discrimination and abuse. 

As a result, the two main substantive points in this debate were not mutually exclusive, though they were presented as opposites. On the one hand, it is true that girls are treated differently (in most cases less advantageously) than boys most everywhere, and that this suffering has an impact on adult women’s self-worth, identity, and ability to exercise our rights. It is also true that many transgender individuals suffer a different—and often both violent and invisibilized—type of exclusion throughout their lives, an experience that would color anyone’s understanding of what is safe and what is not. This is so whether we are talking about trans women or trans men.

Add to any of these one-dimensional exclusion narratives issues such as age, ethnicity, nationality, education, money, and religion, and it will be clear that discrimination varies greatly from sub-group to sub-group. This is hardly news. The point here is that entering into a debate over who is more excluded than whom is a non-starter. The answer will always be: “it depends,” and it is hardly conducive to change to get into a bidding war of wrongs.

There are, however, two lessons to be learned from the Moore/Burnchill vs. Transgender debacle. 

Lesson number 1: we have a long way to go on trans inclusion

I highly doubt that the editor of Suzanne Moore’s original piece saw the troublesome comparison of “ideal female body” with “Brazilian transsexual” as anything other than descriptive or maybe funny. It would surprise me to learn that there had been any conversation about its potentially inflammatory nature. The same is true for the editorial process that led to the publication of Julie Burnchill’s piece, which has been made public. It is abundantly clear that no one thought to seriously question the taste-level or justifiable offense that would be felt upon its publication. 

To be sure, both Moore and Burnchill are free to express both tasteless and insensitive views. The articles may be offensive, even very offensive, but they don’t incite to violence or discrimination and so are publishable without criminal liability—or should be. 

My concern is that the trans community seems to be invisible or “other” to the editors. If these editors did think about the offense the pieces or mentions would cause, that concern was dismissed as irrelevant. This happens most frequently where the butt of the “joke” is already in a disadvantaged position. In a distant past, for example, it was considered reasonable to publish offensively abusive language about Irish immigrants in the United States, because the Irish were seen as less than human and in any case not “one of us.” 

The sentiment that trans people are lesser, have brought it upon themselves, and should just get over it, has permeated a good part of this debate, down to a very unhelpful conflation of “transsexual” with “trans women” with “cross-dressing.” We can do better.

Lesson number 2: we have a long way to go on trust and solidarity

Suffering is felt subjectively: this is the very reason the experience of the victim is central to the definitions of sexual and racial harassment in U.S. law. Imagine a situation where the person who calls a colleague “bitch” or “sexy mamma” gets to decide if that contributes to a hostile work environment or not. No one would ever get beyond the “you just don’t have a sense of humor” defense. 

Of course, identifying abusive language is easy where it so far oversteps existing ideas of propriety that the suffering it generates is “objective” or felt by most, and where the intention to insult is explicit. 

It is much harder where the injury most probably is a result of ignorance rather than intentionally injurious. In such cases, as for example where a mainstream feminist writer compares the ideal female body to that of a “Brazilian transsexual,” our law and practice should allow for trust. Not the kind of trust that leads to impunity and abuse. But the kind of trust where the first reaction to sub-par communication isn’t to assume intentional insult but rather to educate and inform. 

For example, the first time a former boss called me “Sweetie,” I didn’t retort by calling him a sexist pig, I told him I preferred to be called by my name, and not by terms that, to me, implied he had little respect for my professional abilities. He never called me anything other than Marianne after that. And, at least in my presence, he started calling other female colleagues by their names too.

In short: the invisibility of trans communities is real. So are unthinking insults. By treating the latter as intentional, we do nothing to inform and educate about the first.