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 And opponents of a non-discrimination law in California, already in effect, are gathering signatures to have the law repealed, because, they say, it violates the rights of those students who may be uncomfortable sharing a bathroom with a person who is trans.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.

What’s the Connection (If Any) Between Adolescent Drinking and Rape and Violence?

@RHRealityCheck

When two adolescent boys were found guilty earlier this month of raping a teenage girl in Steubenville, Ohio, there was much discussion about rape culture, social media, and whether taking advantage of a passed out girl is just boys’ nature. Many media reports highlighted the drunken state of many of the kids present at the rape, and some argued that the girl’s drunkenness made her at least partially responsible for the abuse she suffered. Meanwhile, the boys’ drunkenness either was not mentioned at all, or was seen as making them less responsible for the attack.

One thing that didn’t elicit much disagreement was the issue of teenage drinking itself. “Where were the parents?” was a frequently asked question. “Why were these kids allowed to drink?” Alcohol and bad parenting, many people agreed, were the real culprits of this rape.

But is that really true? Does alcohol lead to rape and violence? And are parents responsible for adolescent drinking?

The answers to these questions are less straightforward than one might expect.

It is certainly true that a large proportion of violent crimes involve alcohol use. This has been attributed to a variety of factors, including the fact that alcohol inhibits self-control and limits the ability to assess risk, and the fact that some people consume alcohol in preparation for their involvement in violent acts because they believe it will make them braver and stronger.

It is also true that people under the age of 21 consume alcohol regardless of the legal U.S. drinking age, and that many young people binge drink, that is, drink a lot of alcohol over a short period of time.

Younger adolescents are, however, less likely to be involved in alcohol-related violence than they are to be involved in any other violent crimes. And when you look at violent crimes committed by a male perpetrator on a female victim, there is no significant difference between the proportion of women attacked by men under the influence and the proportion of women attacked by men who did not appear to be drunk.

In other words, the fact that a man drinks does not make him any more or less likely to attack a woman.

The influence of parenting and parental drinking on teenage behavior is also not a straight shot when it comes to alcohol and violence. While adult binge drinking in the larger community is a strong predictor for binge drinking in teenagers and college students, parental problem drinking is not—or at least not directly. To summarize a number of quite complex family studies, drinking is not a problem for adolescents in and of itself, though it is obviously not healthy in excess. Rather, the problems are how they drink, how (not if) they see their parents drink, and what they learn to do generally about their emotions and conflicts.

Parenting matters, but, especially for older teenagers, so do peer pressure, societal norms, and genetic susceptibility to using alcohol.

My motivation for looking into the correlation between these issues is not merely academic. I come from Denmark, a country where alcohol use is normalized, even celebrated, among citizens, including teenagers. As I recall it, the main drink served at high school dances back home was beer. Did that make us rape each other? My recollection is that it did not.

This recollection seems to be substantiated by facts. In a recent survey of industrialized countries, Denmark topped the teenage drinking list, while the United States came in last. But rape estimates from Denmark and the United States suggest that women and girls are equally likely to be raped in both countries, or even slightly less likely to be raped in Denmark than in the United States. To put it differently, drinking more does not make Danish people rape more.

My point is not to say that alcohol was irrelevant to the Steubenville rape case. Obviously, the girl’s alcohol-induced unconsciousness enabled the crime in some way (not that it at all excuses the violent acts). I am also not trying to exonerate these teens’ parents of responsibility. I would like to think we have some influence over our children’s sense of right and wrong, and by that I include the notion that we have a responsibility to help people who cannot help themselves.

I do take issue with the notion that alcohol and bad parenting are what caused this crime. Alcohol is a poisonous substance that does damage to your health when consumed in large or even not so large quantities. Bad parenting has much the same effect. But neither ensures that you will commit a crime.

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.

Potential SCOTUS Review of DOMA Presents Pivotal Moment for Gay Rights in America

@RHRealityCheck

On Friday, November 30th (or today as you read this), the US Supreme Court judges are expected to announce which, if any, cases related to gay rights they will review. At stake are not only the right to marry and federal recognition of marriage-related financial benefits for same-sex couples who are already married. The cases before the Court touch upon our understanding of “the family” as an essential building block of society, and whether we can reasonably expect individuals to put part of who they are on hold in order to be considered worthy citizens.

The Supreme Court has been asked to review the constitutionality of the Defense of Marriage Act (known as DOMA), a piece of legislation which was signed into law by Bill Clinton in 1996, and which forbids the recognition of same-sex marriages for the purposes of federal benefits such as tax breaks, social security survivor benefits, and estate tax.

DOMA also prohibits married same-sex couples from benefitting from the same immigration rights as married opposite-sex couples, leading to the summary denial of green cards to foreign spouses of U.S. citizens and permanent residents merely because they are not straight. But in June this year, the US Board of Immigration Appeals sent four such cases back to immigration authorities to determine whether the marriages are valid under state law and whether those marriages would qualify for immigration purposes in the absence of DOMA.

Those decisions follow Obama’s early 2011 announcement that his administration would no longer defend the constitutionality of DOMA. In fact, the Board of Immigrations Appeals’ decision appear at least in part to be made in preparation for a, hopefully not too distant, post-DOMA world. But until this law is declared unconstitutional by the Supreme Court, or repealed by Congress, DOMA will remain force.

Opponents of the federal recognition of same-sex marriage benefits at times phrase their view as a defense of “the family” as the basic building block of society, implicitly or explicitly noting that only opposite-sex couples with or without children also are worthy of state protection as inherently “good.”

And several international and regional human rights documents do, indeed, establish the “family” as a fundamental group unit of society, and, in particular, as essential in the upbringing of children and the protection of the rights of the child. 

However, the definition of what a family might look like to qualify for state protection is deliberately broad and inclusive. In 2006, the United Nations Committee on the Rights of the Child clarified that when it talks about “family,” it means any number of arrangements, including same-sex families. In February this year, the Inter-American Court on Human Rights expressed a similar notion: “The Court confirms that the American Convention does not define a limited concept of family, nor does it only protect a “traditional” model of the family.”

More to the point, perhaps, study after study has dis-proven that an opposite-sex nuclear family is the only appropriate unit for bringing up children, and more than a third of children in the United States now live in single parent households and same-sex families.

Of course, this is not about marriage in the abstract, but rather about the benefits we assign to married couples, concretely, through the law. It is precisely because marital relationship are prioritized in law that same-sex couples would benefit tremendously from being allowed to marry in the first place, and to obtain federal tax, social security, and inheritance benefits when they do. If no marital relationships were given special status under the law, the impact of DOMA might be less stark on both adults and children.

It is unlikely that the Supreme Court judges will challenge this general privilege in law. But we can hope they decide to look at the suffering its unequal implementation causes.

Passing the DREAM Act Would Acknowledge the Human Rights of Migrant Children and Benefit All of Us

@RHRealityCheck

November 6th was a good day for human rights, at least in Maryland. Not only did the state’s voters support same-sex marriage, they also voted in favor of expanding access to higher education for all of Maryland’s students, regardless of their immigration status.

While the Maryland ballot initiative on education is great for young migrants in that state, it highlights the fact that federal action is sorely needed to protect the human rights and dignity of migrants everywhere.

There is some good news. In June this year, President Obama signed an executive order preventing the Department of Homeland Security from deporting undocumented immigrants under 30 who came to the United States before they were 16 years old, and who fulfill a number of other criteria regarding their moral standing and education.

However, while this change rightly was hailed as a positive development for hundreds of thousands of young people, it does not overcome the need for legislative action—President Obama himself called it a “stop-gap” measure. In fact, it is now more than decade since a bipartisan initiative proposing similar benefits first was introduced in the Senate under the title “Development Relief and Education for Alien Minors (DREAM) Act.”

The idea behind the original bill—and the various versions of it introduced over the years—was to open the possibility for higher education and ultimately citizenship for noncitizen children of good moral character, regardless of their immigration status.

And the idea is solid. The individuals potentially covered by these bills are already a positive part of their communities, and many know no other home than the United States. They are, for all intents and purposes, Americans in everything but paperwork. Moreover, maintaining the documentary limbo many of them are in does nothing but make it more difficult for them to pay tax, improve their education, or otherwise contribute constructively to society. In other words: refusing to regularize the status of undocumented children risks turning them into the pariahs they never were.

However, since the first DREAM Act was introduced in 2001, and despite the passage of a version of the bill in the House of Representatives in 2010, no final legislation has been approved by both houses. Arguments that the bill would foster illegal immigration or potentially shield gang members do not bear out in reality. For starters, the bill explicitly seeks to exclude those with a criminal background and applies equally to documented and undocumented aliens. Also, from a pragmatic perspective, most people migrate because they can’t provide for their families at home, not because they think they can “pull one over” on their host country. The lack of DREAM Act-like legislation does not make foreign-born children magically disappear or "self-deport." Rather, it prevents them from fulfilling their potential as participants in society, thus becoming more of a burden than they otherwise would have been: a lose-lose situation if ever there was one.

But even more importantly, education is a human right. Numerous international human rights bodies have repeatedly clarified that states must protect the human rights of those living in their territory, regardless of their legal status. Certainly, states can and must independently determine their immigration and access policies, but they cannot decide whether any one individual has rights: we all do.

Up until this week, 11 states had already adopted their own versions of the DREAM Act, including California, Texas, and New York, all states with large and rapidly growing foreign-born populations. It is telling that states with large immigrant populations know that providing immigrant children with access to higher education only can be beneficial to everyone.

The ballot initiative approved in Maryland this week sends a powerful message to Congress that states are willing to provide, piecemeal, what the federal government should be providing, wholesale. It also underlines the uneven nature of legal protections for immigrants until federal law is passed, especially because immigration generally remains under federal purview. Hopefully, passing a federal DREAM Act is a priority item on the agenda of the new Congress.