APPENDIX III: TRANSGENDERISM AND TRANSGENDER RIGHTS2

Diversity is not for the squeamish. It means making (and taking) a space at the table that includes people you don’t like, don’t agree with, or who you think are just plain wrong.

—Alexander John Goodrum, disabled African-American bisexual FTM transsexual activist, 1960-2002

In 1952, news of Christine Jorgensen’s sex reassignment hit the newsstands, opening debate on “the visibility and mutability of sex” (Meyerowitz, 2002, p. 1). Since then, an increasing number of people have come to identify as transgendered, transsexual, or otherwise gender-variant, and a self-aware transgender community has formed, matured, and begun to demand civil rights (Wilchins, 1997). Although the federal government has been slow to respond to the needs of this community, mainstream acceptance has grown since 1975, when the state of Minnesota passed legislation protecting transsexuals from workplace discrimination (Currah, Minter, & Green, 2000). Society at large, including widening numbers of state and local governments, employers, colleges and universities, and the legal system, now formally acknowledge and defend transsexual and transgendered individuals (Currah & Minter, 2000).

Definitions: Who is Transgendered?

In the early 1990s, transgender arose as an umbrella term to describe those with gender identities, expressions, or behaviors not traditionally associated with their birth sex, or who otherwise transcend conventional definitions of man and woman (Gender Variance: A Primer, 2003). Thus, transgender includes not only transsexuals and crossdressers, but all persons who chafe at restrictive gender norms, identities, and attributions (Bornstein, 1994, p. 4). Gender variance is found in approximately equal measure in both sexes and among all races, nationalities, and social strata, and it occurs throughout the life span.

The 1990s also saw the rise of the transgender model, which views gender variance as natural and healthy. This model has largely supplanted the older medical model, which views variance from traditional gender norms as a sign of psychopathology (see Levine & Lothstein, 1981). Unlike the medical model, which “postulated that there were but two sexes, and that the only alternative to remaining in the original gender role was to work hard and conform to the only available alternative” (Cole, et al., 2000, p. 160), the transgender model encourages more individual expressions of gender.

Transsexuals are the most intensely affected of those included under the umbrella term transgender. Transsexuals are profoundly uncomfortable in their natal sex roles, and many choose to transition to the non-natal role, undergoing medical, social, and psychological sex reassignment (Green & Money, 1969); this often but not invariably includes surgery to ensure genitals are consistent with the new gender role (Laub, 1973).

The American Psychological Association classifies the gender dysphoria experienced by transsexuals as Gender Identity Disorder, a “strong and persistent cross-gender identification” and not merely a desire for perceived cultural advantages of being the other sex. Gender Identity Disorder causes clinically significant distress or impairment in social, occupational, or other important areas of functioning (DSM-IV-TR). As they struggle with gender identities that are in conflict with their bodies and the social expectations placed upon them, in a society which looks upon them with disfavor and with little information about their condition, many transsexuals go through a period of significant clinical distress. “Coming out,” a process characterized by information seeking, contact with peers and helping professionals, and self-acceptance, reduces their distress.

Nontranssexual transgendered persons may live full-time in the non-natal gender role, or may crossdress only on occasion (Boswell, 1991). Increasingly, young people are experimenting with gender, particularly in colleges and universities (Beemyn, 2003).

Not all transsexuals change gender roles, and many nontranssexual transgendered persons do make this change. Transition, in which the individual comes to be socially recognized as a member of the non-natal gender, can cause significant disruption, including loss of emotional support at home and in the community, harassment, and loss of employment. However, nearly all transgendered and transsexual people report having experienced societal stigma, discrimination, or violence (Lombardi, et al., 2001). Persons of color and persons of lower socioeconomic status are at grave risk for disease and violence (Xavier, 2000).

Prevalence of Transgenderism

Because there is no mechanism for tracking them, the incidence of transgendered and transsexuals individuals is unknown. The Diagnostic and Statistical Manual of the American Psychological Association, Vol. 4, Text Revision (2001) gives rates of 1:25,000 for natal males and 1:100,000 for natal females seeking sex reassignment surgery (DSM-IV-TR, 2000). An estimate based on data from the Netherlands is 1:11,900 for natal males and 1:30,400 for natal females (Meyer et al., 1991). Conway (2003) estimates that as many as 20,000 male-to-female sex reassignment surgeries were done between 1990 and 2002 on U.S. citizens and residents, and her calculations indicate that the current prevalence of male-to-female sex reassignment in the U.S. is at least 1:2500.

These figures are based upon the number of individuals who have genital sex reassignment surgery, an expensive and invasive procedure. They do not address the many transsexuals who cannot afford or otherwise do not have this surgery, nor the many nonsurgical nontranssexual transgendered persons, who are believed to outnumber transsexuals by more than an order of magnitude (Conway, 2003).

What Difficulties Do Transgendered Individuals Confront?

Transgendered and transsexual people face rejection by their families, peers, schools, employers, churches, civic organizations, and friends because they are visibly different or because, even if they “pass” as nontransgendered, they have been outed. Gender-variant youth and those who have transitioned gender roles are at increased risk of rejection and exploitation (Denny, 2003), but even nontransgendered individuals are at risk for violence based upon their appearance. For instance, in the 1990s in San Francisco, a heterosexual couple was beaten by attackers who misidentified the female as male. Even as simple a gender transgression as haircut or selection of jewelry can have severe repercussions [Alabama Gov. says earrings on men wrong! (2001)].

Public Access

The necessary act of using a public restroom is a challenge for transgendered and transsexual people, who risk harassment, beatings, arrest, and murder, whether they use the women’s or men’s room (see Farrell, 2000; Vade, 2002). Recently, in Nashville, a heterosexual man was murdered by a stranger who became infuriated because he was holding his girlfriend’s purse while escorting a blind male friend to the restroom (Burke, 2001).

Transgendered people are sometimes refused service in restaurants, bars, and stores (see Buffa, 2001), and are subject to security searches when flying or going through customs (NTAC, 2003). Churches often make them feel unwelcome. If their status is discovered, they are discharged from the U.S. military (Brown, 1989). Police officers sometimes detain them for no other reason than the way they are dressed. Clerks and officials often deliberately use pronouns calculated to be offensive to them. Judges sometimes deny their legal name changes. Transgendered and transsexual people can find it difficult to change their identifying documents to reflect their social role and appearance; this puts them in a vulnerable position when they must show their ID (Denny, 1994). They are often refused the right to marry and denied custody of their children based on their transgender status (Brown, 1999, Brant, 1997).

Transgendered and transsexual persons are sometimes denied the most basic medical services. In 1996, a transgendered woman named Tyra Hunter was severely injured in a motor vehicle accident in Washington, D.C. When firemen, who also served as paramedics, discovered that Hunter had a penis, they stopped treating her. At the hospital, Hunter’s life-threatening injuries were not promptly addressed, and she died (Bowles, 1996).

Sports

Participation in sporting events also poses a challenge for transgendered and transsexual individuals. The sports world began to confront issues of sexual identity as early as the 1960s, when sex testing was a regular part of international competition (Amdur, 1976). The International Olympic Committee discontinued the testing in 1999 (Pittaway, 1999). Most sports organizations have not adopted gender identity policies, leaving transgender athletes to wonder if they are eligible to participate in various sporting events.

Regardless of their choice of the mens’ division or the womens’ division, transgender participants risk enduring hostility from other athletes and public attention for something other than their athletic abilities. Some transgendered athletes have been accused of undergoing permanent, life-changing treatments merely to be able to compete as a member of a different sex (Fish, 2003, Pilgrim et al., 2003). Such assertions demonstrate the lack of public understanding about transgenderism.

Employment, Housing, and Education

Transgendered and transsexuals face severe discrimination in the housing, employment, and educational arenas. Many transgendered report a long history of harassment beginning in primary and grade schools (Lombardi, et al., 2001), and there are numerous reports of their dropping out of school so as to avoid this harassment.

Discrimination continues in the work force. Transgendered men and women have been dismissed from their jobs simply after their employers discovered they are transgendered. For example, Peter Oiler, a married man, was fired from his truckdriving job by Winn Dixie when his supervisors became aware that he sometimes crossdressed away from work. With the help of the American Civil Liberties Union, Oiler took his case to the U.S. District Court, but dropped his Supreme Court suit because he feared another loss in the conservative political environment (Gender Public Advocacy Coalition, 2003).

Anti-Transgender Violence and Murder

The lack of understanding of transgendered and transsexual persons is often expressed as hatred. The Remembering Our Dead website tracks anti-transgender violence and murder. From the late 1990s until 2002, the site documented an average of one murder per month. This year (2003) has seen double that rate. Our nation’s capital has been particularly troubled. In 2002, two transgendered teens, Stephanie Thomas and Ukea Davis, were gunned down in their car at the same intersection in which Tyra Hunter was denied treatment by D.C. Firefighters (Fahrenthold, 2002). August 2003 saw a spate of transgender murders in D.C.

Transgendered sex workers and people of color are at highest risk for violence, but middle and upper class transgendered and transsexual people have been murdered in their own homes or while walking down the street. Riki Anne Wilchins has noted that murders of transgendered persons tend to be especially violent (Wilchins, 1997,p.23). These murders are sometimes labeled by the police as hate crimes, but more often they are not so classified, even in localities with hate crimes legislation.

Philosophical Opposition

Transsexualism and other forms of gender variance have been vigorously opposed by, among others, some religious leaders, governments, physicians, feminists, activists, and academicians. The Vatican recently sent church leaders a document “instructing Bishops never to alter the sex listed in parish baptismal records and say[ing] Catholics who have undergone ‘sex change’ procedures are not eligible to marry, be ordained to the priesthood, or enter religious life.” (Norton, 2003). Some psychiatrists have long claimed that gender variance, and especially transsexualism, is a mental illness (variously neurosis, psychosis, masochism, and a death wish), and have opposed sex reassignment on the grounds that they should treat the mind rather than the body (see Ostow, 1953). Feminists like Mary Daly and Janice Raymond have called transsexualism “Frankensteinian” (Daly, 1978) and claimed that sex reassignment is a plot to render women obsolete (Raymond, 1979). Governments in third world countries have implicitly and sometimes explicitly condoned the persecution and murder of gender-variant people (see Amnesty International, 1996), and governments in English-speaking countries have denied transgendered people, and especially transsexuals, customary human rights, including the right to marry, divorce, raise children, inherit, and make wills (see The Advocate, 2003). An argument that is commonly made is that transsexuals are merely homosexuals in denial. Most recently, Lawrence (1998) and Bailey (2003) have argued that male-to-female transsexuals are paraphilics (i.e., have a sexual perversion). Some (e.g. Raymond, 1979; Billings & Urban, 1982; Meyer & Reter, 1979) have claimed that genital surgery is unnecessary or harmful or ineffective. Authors like Mackenzie (1994) have claimed that by changing gender roles, transsexuals perpetuate binary gender norms.

All of these arguments are incorrect, and most are specious, but they have nevertheless had negative impacts on the lives of transgendered and transsexual people, who are often denied services or mistreated by those who cite them.

Psychological Issues

In addition to the external burdens from society, transgender and transsexual individuals struggle with internal decisions related to their gender identities. Transgendered people must ask whether and how to act on their feelings about their true gender. Many try to repress these feelings, and suffer psychological damage as a result (Denny, 1991). Many act without the information necessary to make informed decisions. Clergy, teachers, counselors, and others who would ordinarily be sources of support often have little or no information about transgender issues, or, worse, impose their private morality and opinions on the transgendered person. Before the advent of the internet, information was practically impossible to come by. Now information is only a few key clicks away, but material is of variable quality.

Those who transition gender roles find that sex-altering treatments, from hormone therapy to genital reconstructive procedures, to electrolysis, are not covered by health insurance. Many transsexuals are unable to afford these treatments; others cannot have surgery because of medical reasons such as uncontrolled diabetes or heart conditions.

Transgendered people, and especially transsexuals, who have been unable to obtain information or tell their stories, can, after years of holding their feelings within, decompensate. It is at this point that they are most likely to come to the attention of helping professionals. Generally, simply talking about their situation and gathering information necessary to make life decisions can alleviate this crisis, but some transgendered people, whether because of religious conflicts or feelings of obligation to family or society, choose not to transition.

Moving Toward Acceptance: The Evolution of Transgender-Inclusive Policies

A variety of religious, civic, corporate, and governmental entities have formally addressed issues facing the transgender community. This acceptance of “others,” which publicly began in the 1960s with the civil rights movement, is still spreading today. Those with non-traditional gender orientations or identities have begun to enjoy some of the freedoms and protections mainstream society provides.

Law and Policy Impacting the Transgender Community

Transgendered and transsexual individuals now have a political voice. The Gender Public Advocacy Coalition lobbies members of Congress on behalf of gender-variant individuals while grassroots organizations support state-level reforms. While these groups have seen progress at the state level, as evidenced by the four states, nine counties, and 51 cities that prohibit discrimination on the basis of gender identity or expression, change at the national level has been slow (see Currah, Minter, & Green, 2000).

(The Lack of) Federal Legislation

In 1974, Christopher Shays (R-CT) introduced the Employment Nondiscrimination Act to the U.S. House of Representatives. Despite a wide base of support, this job-protection bill has been pending in Congress ever since. ENDA, which Senator Edward Kennedy (D-MA) calls the “unfinished business of America,” has never come close to passing both chambers of Congress. To date, the various versions have not included language to embrace transsexual and other transgendered people. Although the Human Rights Campaign, which vigorously lobbies for ENDA, recently added transgender to its mission statement, it has cited political expediency in explaining why it does not support transgender-inclusive language in ENDA.

With no realistic hope of federal legislation addressing gender identity in the near future, the judicial system must interpret existing federal and state laws to determine the scope of protection based on gender identity. However, of the two most likely bills, one does not address and the other specifically excludes gender variance (respectively, Civil Rights Act of 1964 and Americans with Disabilities Act of 1990).

To date, courts have been divided on the issue of discrimination against transgendered people under the Civil Rights Act of 1964. Using reasoning that may seem counterintuitive, early court decisions held that discrimination against a transgendered individual is not based on sex, but rather on change of sex, and that for this reason a transgender litigant is not covered by sex discrimination policies under Title VII (see Sharon M. Powell a/k/a Michael D. Powell v. Read’s Inc., 1977). Other early decisions held that transgender litigants are neither male nor female and are therefore not part of a protected group (see Holloway, 1974; Swartz, 1997 for reviews).

More recent decisions find that the prohibition against harassment based on stereotypes about how men and women should act extends to transsexuals (cf Enriquez v. West Jersey Health System, 2001). A trial court in Minnesota recently allowed a male-to-female transsexual to collect widow’s benefits after her husband’s death despite objections from the Social Security.

Recently, female-to-male transsexual Michael Kantaras won custody of his minor child in a high-profile contested divorce (Doering, 2003). However, the conservative Liberty Counsel recently announced that it will provide pro bono legal help for an appeal by Kantaras’ ex-wife, Linda (Liberty Counsel, 2003). Several years ago, a female-to-male transsexual in Ohio was jailed for marrying as a man (Resnick, (2000). Two recent U.S. cases, from Texas and Kansas, have invalidated the marriages of transsexual women (Strasser, 2003; Associated Press, 2003; Pesquera, 1999).

State and Local Legislation

Because action on the federal level seems unlikely, protections have tended to come from smaller institutional units. For example, rather than waiting for the federal government to take action, some state and local governments have passed their own antidiscrimination statutes. In 1975, Minnesota became the first state to pass a law against workplace discrimination based on gender identity. Today, four states, nine counties, and 51 cities prohibit discrimination on the basis of gender identity or expression (Currah, Minter, & Green, 2000). It has been estimated that about 1/4 of America’s transgendered and transsexual people are now legally protected from discrimination.

Representative Chris Kolb of Ann Arbor introduced a bill this past summer (2003) to add gender identity and sexual orientation clauses to Michigan’s anti-discrimination law. Legislative protection for transgender people at the state and local levels has been secured either by making gender identity and expression (or comparable terms) a protected status or by creating an inclusive statutory definition of gender, sex or sexual orientation.

In 1999, Ann Arbor passed a nondiscrimination ordinance with model transgender-protective language defining gender identity:

East Lansing, Grand Rapids, Huntington Woods, and Ypsilanti have similar ordinances.

Anti-Discrimination Policies in Industry and Education

Like the state and local governments who refused to wait for federal action, many employers and universities have proactively guaranteed protection to transgender people. Employers from the technology, communications, finance, airline and athletic apparel industries, as well as private and public schools, colleges, and universities, both large and small, have amended their antidiscrimination policies to protect transgender individuals.

Industry. In 1975, AT&T became the first American corporation to include sexual orientation in its policy against discrimination. Today, at least 2,162 U.S. employers cover sexual orientation in their nondiscrimination policies. According to <http://www.monster.com/>, the popular internet job broker, the higher a company is on the Fortune 500 list, the more likely it is to have both domestic partner benefits and a written nondiscrimination policy covering sexual orientation. Fifty-seven employers, including Aetna, American Airlines, J. P. Morgan Chase, Nike, and Lucent include sexual orientation and gender identity in their non-discrimination policies. Thirteen such companies earned a perfect score on the Human Rights Campaign’s Corporate Equality Index in 2002. Even Cracker Barrel, after receiving an extremely low score in the 2002 rankings, has now updated its policy.

The trend among industry can be attributed to the well-planned advocacy of LGBT groups and the fact that many employers recognize the connection between worker satisfaction and productivity. The latter has led to an increased move in American society towards tolerance and even encouragement of diversity.

The low unemployment rate of the 1990s prompted many employers to seek creative yet inexpensive ways to attract the best employees. As an increasing number of workers were open about their sexual orientation, an increasing number of employers provided protection and benefits to those of nontraditional sexual orientations. Progressive workplace policies benefit these companies’ images and wallets by providing a diverse, safe and productive work environment; this in turn improves recruitment and decreases turnover. Employees who do not endure the stress of hiding their personal lives are free to develop honest working relationships and labor more productively for their employers.

Colleges and Universities. While some colleges and universities are prohibited from discriminating against transgendered students under the non-discrimination policies adopted in their political jurisdictions, other schools have proactively changed their policies to include gender identity or expression regardless of the law in their city or state. Most of these schools simply added gender identity to their non-discrimination statements. For example, the University of Iowa’s Non-Discrimination Policy reads:

Brown University’s policy is similar:

Many other large schools, including the Universities of Illinois and Maryland, are currently considering adding gender identity or expression to their non-discrimination policies. A few years ago, Rutgers adopted protections for “people who have changed or are in the process of changing” their sex (see Appendix IV for a comprehensive list of schools that do not discriminate on the basis of gender identity).

Colleges have always been places for learning; while students encounter subjects like history, biology, and engineering in the classroom, they also discover how to develop their identities as members of society outside of the classroom. As society has grown more accepting of various sexual orientations and gender identities, GLBT individuals have begun to come out at increasingly younger ages. As a result, universities are uniquely situated as places where students will make life-long decisions about their professional, intellectual, social and gender identities.

Having no policy about gender identity puts students, staff, and faculty at risk for harassment, rejection, exclusion, abuse, disrespect, violence, conflict with peers and professors, compromised grading, promotion and tenure vulnerabilities, regardless of the eligibility of the individuals. This compromises the educational experience. However, “Things are changing fast, especially on America’s campuses” (Greenaway, 2001). Many young people do not believe there is a dichotomy between the sexes and no longer take sexual identity for granted. As this message spreads and the transgender movement grows, more companies, government agencies and universities will continue to adjust their policies accordingly. Even those who don’t approve of or understand transsexual and other transgendered people understand the need to change our assumptions about how men and women are supposed to be and to recognize the rights of those who feel their biological sex does not reflect their gender identity.

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2Appendix III, which forms the basis of Section II of the Task Force Report, was researched and drafted, at the request of the Task Force, by UM Adjunct Clinical Prof. Sandra Cole; Dallas Denny, Editor-in-Chief of Transgender Tapestry magazine; and Piper Hendrix, a student in the UM Law School. The Task Force is deeply grateful to all three for their extraordinarily valuable help. The draft of Appendix III was completed in late Summer, 2003, and has not been systematically updated.

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References for Appendix III