Monday, September 16, 2013

Suspenders and a Belt

[As published in Baltimore OUTloud 9/20/13]
When I was a kid there was this joke.  “Q: Why does a fireman wear red suspenders?  A: To keep his pants up.”  Later I learned that suspenders were a perfectly reasonable and fashionable way to hold your pants up.  But it did pose a question to me when I would see people wearing suspenders and a belt.  I cannot recall ever hearing somebody say, “My suspenders broke, thank goodness I was wearing a belt as a backup.”   Moreover I don’t think I ever saw a person who would refuse to go outside with only suspenders for fear of losing their pants.  And those who might insist on both before leaving the house might have an issue if they had only one or the other.  But this is exactly the situation we see today with employment rights for trans persons. 

In 2012 the Equal Employment Opportunity Commission (EEOC) in Macy v. Holder ruled that discrimination in employment against trans persons is sex discrimination under Title VII of the 1964 Civil Rights Act.  That means this is the case in the entirety of the USA—everyplace—regardless if it is in Nebraska, Nevada or New York or whether there is a state or local statute or not.   This decision by the commissioners was unanimous and included GOP appointees,   indicating to me that this was not a partisan decision.  Since then there have been a number of cases brought before the EEOC including from Maryland with respect to this matter and to my knowledge, all have been settled in favor of the trans person.  For purposes of our discussion I am calling this decision our “suspenders”.

You might think this would be the biggest news in history for trans rights.  And for my money you would be right.  It should be!  After all, Title VII sex discrimination is settled law with the Supreme Court in Price Waterhouse v. Hopkins.  And so there should be shouting from rooftops, victory parties, parades, and fireworks in celebration.  With our national LGBT rights organizations crowing from every podium, from every talking head on TV, posting in social media, and any venue they can, “It is no longer OK to discriminate against trans persons in the United States in employment!!!”  

Alas no.  That news is relegated and buried to pages and paragraphs deep in reports, the Nth slide in presentations, three or four clicks deep in websites or qualified into oblivion.  Put another way, they have buried the lede.  If you were a trans person seeking guidance as to how to file a claim or even that you have the right to do so, your search might come up flat.  Or worse, be told you do not have rights in your state or locality.  And one has to ask, “Why are we not out educating our people, employment lawyers and human resources professionals about this?”  I think I know why, and it has to do with a “belt” called ENDA.

The Employment Non Discrimination Act (ENDA) is up for consideration in the U.S. Senate.  This time, unlike its stripped down 2007 predecessor, it includes not only gay and lesbian folk but trans folk too.  In fact any gender non-conforming persons would be covered under Title VII.  So what does ENDA add for trans persons?  Little.

Here’s the problem.  ENDA might indeed pass the Senate before the end of this year.  And when it arrives in the house it will likely be DOA with the GOP.  Meaning there is no real expectation that it will make it through the house until there is a change in management there.  That would likely not happen until January 2015, or 2017, or whenever.  Maybe never.   

Our national leaders are not serving us in this matter.  They are saying suspenders are not good enough to hold up your pants.  You apparently need a belt and suspenders.  They are not saying we have won a huge victory and should be enshrining it in corporate handbooks and winning case after case.  In fact, they are afraid that such cases might find rulings to the contrary.  If that was the mindset in Marriage Equality where would that movement stand today?

The bottom line:  We do not have to wait for ENDA to exercise our rights, we can do so today.  And I for one would not be satisfied with a story that says, wait your turn, with a pat on the head.  Ask that organization that claims to represent you where they stand and what are they doing to promote the EEOC decision.  If you get anything other than an enthusiastic “We are spreading the word and promoting it” then you should probably ask them why do we need a belt and suspenders?

Friday, September 6, 2013

Call Me?

[As published in Baltimore OUTloud, 9/6/13]

The past month or so there has been a lot of noise in the media about pronouns. Some of it most assuredly from the trans community but the bulk of it seems to be coming from the greater LGB and mainstream media. Of course, the instigation of this is Private Chelsea Manning’s very public self-declaration, following her sentencing, of a new name and preferred pronoun and the immediate rush and pressure by many to “embrace” this person whom none of us have seen or interacted with save for a “selfie” portrait.

I’ll not revisit my last column which chastised that soldier’s explanation that in some way being trans caused so much emotional distress that she had to release classified information—an insult to any trans person who handles classified today. The issue here now becomes one of identification, interaction, and self-declaration. How do I address you? What do you call me? Who gets to decide that?

I’ve attended functions and conferences where gender variance is the norm. And in those limited settings it is not uncommon to come across folks in various states of socially “unacceptable” gender ambiguity. You see we all have some set notions on gender expression. Note I said expression, not identity.

Perhaps a modest tutorial is needed here. Gender identity is who you believe you are with respect to your person. Some identify as female, some male, some as both and some as neither. Gender expression is how you show your identification to others. Clothing, hairstyles, makeup, manner, speech, etc. all play into what others perceive as your expression. It is quite possible to have a gender identity that is incongruent with one’s gender expression, as perceived by social norms. And this is where we end up with problems for some.

For example, a trans woman who appears in a forum, group or conference, who has a gender identity of female, who has not physically presented socially as female, may still be known by a female name and request feminine pronouns in those settings. This is not uncommon. This person, however, is often living in the closet outside of that venue. And if you were to approach them on the street they would likely use their male name and pronouns. So are they he? Or she? And some, including the person in question, might say, it “depends.” Confused yet?

One of the protocols in Transdom is you often ask a person how they identify and what pronouns they prefer. I have had to do this on occasion when meeting someone new; sometimes even after meeting them again as they often change their mind. Personally, I frequently have this issue with persons on the trans masculine, female-to-male, spectrum because sometimes frankly I just cannot tell.

The same holds true for those who identify as genderqueer for me. Rather than assume and insult the person, I ask the identity and pronoun questions. However as a person who has gone to some effort to actively present socially and physically as a female, if I get asked those same things I am frankly a bit insulted. I mean really? But I guess it's like any other middle-aged person getting carded buying beer. You don’t really need to, but you do it for everybody so nobody complains. My answer to the question on pronouns lately has become, “Gee. What do you think?”

And so now we come back to our self-declared gender variant persons. I fear we are headed to a world that every conversation with a person we meet for the first time will need to begin with, “How do you identify?” And, “What names and pronouns do you prefer?” I guess for those of us not quite tuned in we will probably need to adopt some kind of color-coded name badge. This is, of course, absurd in practice.

Those folks who have rejected the gender binary need to stop being quite so angry if somebody mis-genders them upon meeting them. Our brains are fundamentally wired to recognize gender by physical and learned social cues. Even if the person in question prefers to be referred to as “they” rather than he or she. Most assuredly this is the case when all evidence appears to be to the contrary.

Why do I care about this you ask? Because just as our gay and lesbian peers learned that by being gender conforming they could get traction in the mainstream for all in the movement, we in the trans movement have similar challenges. And so we enter the confluence of identity and the law which likes clean and tidy definitions like male and female. Nobody can see your gender identity. What they do see, and make determination of, is your expression. And based on that expression we have classes of persons who fit particular legal constructs with regards to protections.

And while I personally believe that you should not be discriminated against regardless of your gender expression (lesbians and gays, I am talking about you too), this becomes a very hard sell to move some lawmakers who fear that equality for trans folk equals ambiguity in such things. And this is the difference between politics and the law, especially if they have no idea what to call you.