Say what?

When you point out the absurdity of this language, you may encounter the following “arguments.”  

• “The attempts by feminists to limit protections to just those who have sought medical care for gender dysphoria strips protections from the people who are merely gender non-conforming and  who have not sought medical care for gender dysphoria.”

Gender non-conforming people, such as lesbians and gay men, have been explicitly protected by the state law banning discrimination based on sexual orientation since 2001. Discrimination based on sex also protects so-called “gender nonconforming people.”  These are classes of people that can be recognized and protected, while not over-broadening legislation or creating wholly subjective definitions. It is not clear what the definition of “gender non-conforming” is, while including the degrees of that, subjective perceptions and interpretations by others, and context, that would take in all instances that would be acceptable to everyone. 

• “There are many reasons gender non-conforming people do not seek medical care. Many gender non-conforming people do not experience gender dysphoria and are comfortable with both their gender identity and gender expression.”

This could potentially include all people who are happy with their lives. This is not a class that is manageable by government for discrimination claims.

If someone is completely unaware that they are members of a class that is discriminated against, that brings into question whether it is even possible that they can be discriminated against. 

• “Those who do experience gender dysphoria may find ways to cope with their dysphoria without seeking medical treatment.” 

Coping could include anything up to and including the person deciding that they are not gender dysphoric after all. It could include removing oneself from the class that advocates are attempting to create. In that case, it again becomes the problem of a addressing a discrimination claim that the person themselves may not agree with. This opens the door to the government being at odds with the very person who they are attempting to protect – and from harms that the government has defined in ways that the person at the center of a claim may not agree with. 

• “Many transgender people do not have the financial resources to afford medical treatment. Many transgender people are unemployed or underemployed, and correspondingly have no employer provided medical insurance.” 

To avoid the problem of having to cover everyone who can claim status in a class after the claim of discrimination, the government needs some method of determining whether the person who is claiming discrimination has placed themselves in the class previous to the claimed harm. If that has not happened, the government then has every reason to want a method for objective determination of a person belonging in a protected class. Even if a person with a disability has not sought help for their disability, it can still be objectively determined that they belong to that class of people. 

• “Gender non-conforming people often have no desire to undergo surgical modifications to their bodies.”

This is true. Many lesbian females do not want to have any type of surgery; they want to be free to be themselves without coercion around what gender they should be. When a government entity gets involved in gender issues, it has entered an area with no clear definitions or standards. Taking one group’s word for what “gender identity” or “gender expression” might be is to ignore all the other groups that might have other definitions, but who aren’t even being asked to give their input. 

• “Many gender non-conforming children have parents whose own beliefs about gender are so strong that the children cannot seek professional assistance.”

There are many gender non-conforming children, including girls who we’ve long called “tomboys” and boys who have been called “sissies” who have difficulties in life because their parents want them to act more like traditional girls and boys. This is not a problem that a legislative body can fix and shouldn’t be asked to. 

• “And, many gender non-conforming people do not realize that they are gender non-conforming.”

 If a person is unaware that they are not conforming to society’s standards, the burden does not fall to government to address all possible ramifications of what that person might experience as a consequence of something they themselves aren’t even aware of. The theoretical possibility that someone might suffer some reaction to something that they are not aware of is the purview for government preemption would open the door to a whole array of needing to solve problems that could happen, but that haven’t.

People who have not sought medical care for gender dysphoria would include a very large range of people, including: 

• all people who have never heard of gender dysphoria;
• all people who would not accept the diagnosis of gender dysphoria;
• all people who have not accepted the diagnosis of gender dysphoria;
• all people who might be considered by other people to be gender dysphoric for any reason whatsoever.

In any of these cases, the person who could be claimed to have suffered discrimination because of gender dysphoria based not on their own understanding of that, but on others, is being placed in a position of getting redress on their behalf that they may not want. It is very easy to imagine that if someone either doesn’t know about the concept or rejects it for themselves would also not want it attached to them in the process of litigation or other public processes. 

• “The definition of gender identity being proposed in Councilman’s Quirk’s bill defines Gender Identity Or Expression as a gender-related identity or appearance of an individual regardless of the individual’s assigned sex at birth.

To codify “appearance” as an objective criterion for determining discrimination is the exact opposite of what all other civil rights protections have been moving toward. 

• “This definition is intentionally broad as discrimination occurs against not just those who experience gender dysphoria and who seek medical care, but also against those who are merely gender non-conforming and who live their lives without assistance from the medical community.” 

To place the broad concept of gender under a massive umbrella that includes all possible personal, individual, and subjective definitions would be to ask policy makers to create and interpret regulations that recognize every single variation in human experience. This is beyond the scope of what government is capable of doing and would add an extraordinary burden on the work of multiple government representatives, including law enforcement, code enforcement, and many others. 

• “This lack of narrowness when defining protected classes in discrimination statutes is typical.  Race never means just one race nor does it exclude people who are multi-racial.  Gender never just means one particular gender.  Gender means either gender and those whose genetic or physical characteristics do not allow them to be classified as purely male or female.  Religion never just means just one religion or a particular subset of religions that worship a common deity.” 

There is a common understanding of race, sex, and religion in society. Because of this common understanding across virtually all adults in society, government entities can rely on that understanding when determining whether discrimination has occurred. The only analog to gender is that the common understanding is that there are men and there are women, boys and girls. That there are activists who believe that there are more than two genders does not make it so (as commonly understood) and especially does not make for a strong support for governmental intervention. 

• “With that in mind, the definition of Gender Identity Or Expression should never be narrowed to just protect those who seek treatment for gender dysphoria.  Gender Identity or Expression should be a broad term that protects everyone and anyone who is in some way gender non-conforming, regardless of whether they consider themselves to be transgender or transsexual, and regardless of whether they have experienced gender dysphoria severe enough to warrant medical care.” 

A governmental body can only address harms to classes of people; it cannot base its policy-making on individual experience. Any government body that seeks to address discrimination against a class of people has ample reason for seeking to delineate the limits of who belongs in that class of people, including financial, legal, and logistic reasons. A government can certainly not designate a class of people that could potentially include every person in its purview — to do so undermines the very purpose of anti-discrimination legislation. 

H/T No Anodyne

[UP]

Now, I finally got my hands on a copy of the REVISED bill. Thanks, Cathy Brennan! And now you have a copy of it too. Enjoy!

Guess what? The “gender identity” definition looks just like Connecticut’s! (<<see analysis in link)

“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity; provided however, gender-related identity shall not be asserted for any improper purpose.

Please note that this is somewhat more restrictive than what was originally proposed. I do not like this Connecticut-version much better (because it still does not require objective evidence of a “gender identity”), but it’s a nod towards two of my primary concerns in regard to overbroad definitions of “gender identity;” namely, lack of proof and fraud by sex offenders or other males who would take advantage of this legislation to prey on females by invading female-only space.

The main reason I support this bill, however, is because it presents minimal risk to female rights and safety. Our feminist legal critique has focused on the public accommodations problem of “gender identity” legislation. The revised MA bill does not present a conflict in regard to sex-segregated public accommodations and male-bodied intrusions into these female-only spaces.

The bill applies, specifically, to contexts in which discrimination can have life-altering consequences. Contexts wherein discrimination has the power to change the course of your life and limit your economic opportunities– such as being fired or not hired for a job, or being evicted and/or denied housing. These are critically important institutionalized decisions with far-reaching personal consequences. I don’t really fancy myself a writer (I’m more of a conceptual theorist) and I’m short on time for detailed explanation, so I’ve made a little chart to summarize the distinction:

The long-term CONSEQUENCES of being denied access to the opposite sex’s bathroom in a public place is really NOT THE SAME AT ALL as being denied a job or housing or a mortgage. Trans supporters really need to get some perspective on this. Please!

Over the past 24, I have observed intense and very predictable online criticism from the trans community about the exclusion of public accommodations from this bill. As I say, they aren’t doing a nuanced analysis of the ramifications and/or dangers inherent to the different contexts they are discussing. This oversight is glaring and myopic. But you know what else? Trans supporters could learn a lot from the history of feminist legal advocacy. Humans-assigned-the-feminine-gender-at-birth have been chipping away, one tiny little step at a time, taking whatever legal progress or protections we can get, when we can get them. Property ownership. The vote. Birth control. Serving on juries. Abortion. Marital rape. Equal pay. Oh, oops, we don’t have equal pay yet! (See Lilly Ledbetter) Nor do women have the legal protection of a constitutional Equal Rights Amendment. That’s been going on for decades now. Trans advocacy groups have been taking up this bill with Massachusetts’ legislators for over six years. When you’re asking governmental representatives for help and they come back and say, hey I really tried but I can only get you part of what you want, you don’t say FUCK YOU. You say, THANK YOU. If something is that important to you, that real, take it. We will always have more work to do. Always. There is no total solution to the tyranny of hetero-normativity. Women. know. this.

Egads! Rest assured, we would not believe it if GLAD did anything at the behest of the “feminist community.”

Echoing the meaningless definitions adopted by the 14 other states that have implemented “gender identity” discrimination protections, the Connecticut law defines “gender identity or expression” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

Reference to sex stereotypes? Check.

Lack of concern for female reality? Check.

Now, the Connecticut definition goes further, and this is where things get interesting. The definition suggests some ways in which a plaintiff asserting “gender identity” discrimination could demonstrate that they fall within this now-protected class of persons: “by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.”

Let’s break that down into smaller chunks. The aggrieved party can demonstrate their “gender-related identity” by showing evidence of ONE of the following:

• Medical history, care or treatment of the gender-related identity

Ok, great. A reasonable interpretation of this would probably include diagnosis of gender identity disorder, such as found in the DSM, and/or a transsexual medical condition as defined by the American Medical Association.  Presumably, this means showing that one has sought medical care and treatment for the purpose of living as the sex opposite one’s “physiology or assigned sex at birth.” Requiring evidence of medical treatment is a reasonable and necessary legal restriction on the assertion of gender identity as a basis for discrimination. We support the inclusion of this language.

•  Consistent and uniform assertion of the gender-related identity

An optimist might suggest this is intended to mean living full-time as the preferred “gender” (how people present themselves so that others perceive them to be one “sex” or the other).  Yet, if that’s what is meant, that’s what should be said.  For example, the United Kingdom’s Gender Recognition Act of 2004 specifies that a person applying for a change in gender must “have lived fully for the last two years in your acquired gender.”  The wording in the UK law is much clearer that the Connecticut language and even specifies duration, a factor significantly lacking in the Connecticut legislation. To prove a “consistent and uniform” gender identity, a male person might provide evidence that he or she wears a dress every weekend. Or how about a note from a friend or family member explaining that for the past 5 months the petitioner has pretending to “be a wo/man” around the house? In the absence of written evidence, maybe sworn testimony would do? If medical treatment isn’t required, “evidence” can take many forms.

We’ve seen this kind of language spring up in other places, most notably in Maryland, where the Senate Judicial Proceedings Committee amended the overbroad definition of gender identity in House Bill 235 to require “consistent, public manifestation” of the gender-related identity. Note the word public.  That means that the gender expression cannot be one that is only enacted in private contexts, such as in private homes and at private clubs. (As a side note, we hope and expect that the “gender identity” bill introduced in 2012 will start with this language).

• Any other evidence that the identity is sincerely held, part of a person’s core identity, or that the person is not asserting such an identity for an improper purpose

This final part of the “gender identity” definition means that if your preferred “gender identity” represents a sincerely held belief or part of your core identity, you can assert protection from discrimination based on “gender identity.” In light of the way in which gender has been framed as essential to the self, yet nothing essential is required to assert the identity, it would be a  difficult, if not impossible, to show that one’s asserted “gender identity” is a sham.  This language renders the requirements for medical evidence or consistent presentation moot.

And what about that “improper purpose” language? What does it mean? Lying about your “gender identity” would be improper, but how would one prove that?  A lie detector test?  Would it constitute an improper purpose for a convicted male sex offender to assert “gender identity” in order to gain access to female sex-segregated space?  Without a discussion of what this means in the legislative history, we have no idea – but rest assured, this language is essentially meaningless until a court or regulator fleshes it out.

Ok, so, we’ve dissected the Connecticut definition of “gender identity.”  What Jennifer Levi does next in the post on Pam’s House Blend is astonishing.  Jennifer Levi elevates “gender identity” to religion:

The good thing is that the language that was ultimately adopted has some pedigree. It comes from the religious discrimination context where courts have established an important principle. The principle is that no court should be diving deeply into a person’s faith tradition or spiritual beliefs or contradicted them when asserted. If you say that you can’t go to work on Sunday mornings because of your religion, no court can say otherwise simply because some religious entity, organization, or
founding body contradicts you. If you say it’s a religious commitment for you to wear a head covering, no court can say that the mother church (or temple) doesn’t require it. Religion is an internal matter. You are of the faith you say you are. No civil entity (as opposed to a religious one) can question what you say is your religious identity or faith tradition.

That is the same principle that has now been written into Connecticut law. Your gender identity is what you say it is. As long as you are not asserting your gender identity in a particular context for improper purposes, you are who you say you are. No one else gets to say that you must pass a biological or other litmus test before your gender identity has to be respected. Nor should they be able to.

That’s right – “gender identity” is analogous to a religious belief! We are worshiping at the Church of Gender, people. Now, as someone raised Roman Catholic, I am pretty sure that the religious people would not take this equation of “gender identity” with “religious belief” too well. The analogy is dismissive of the ethical foundations of organized religion. Indeed, freedom of religion is a constitutionally-protected right – a bedrock right on which this country was founded.  Do GLBT organizations like GLAD seriously want to claim that one has a foundational right – equal to freedom of religion – to assert a “gender identity?”  If I were in the business of making analogies to constitutional rights, one’s right to “gender expression or identity” seems more akin to one’s right to free speech – but that might require recognition by “gender identity” proponents that it’s not critical to one’s core identity but is, in fact, merely a way of expressing one’s self.  Additionally, “gender” is not spiritual practice; gender is the celebration of sex roles that have served to oppress females. Female subordination as the “second sex” is enabled by our commitment to dichotomous sex roles that value certain traits in one sex more than the other. (Yes, that’s the binary.) Only by destroying these sex-based stereotypes will any of us find freedom of expression.

Although religion may be an internal matter, the expression of gender is not. Gender is demonstrated by appearance and behavior – social interactions, in other words. Trans* people usually require those around them to make significant changes in  interpersonal communication, under pressure of being accused of insensitivity and even hate if we don’t comply unconditionally, in order to accommodate the internal gendered feelings of any given trans person. Unlike religious expression, which can usually be avoided in the absence of proselytizing, gender expression is a publicly unavoidable matter. From pronouns to bathrooms, “gender identity” requires others to suspend disbelief regarding the physical and lived social realities of sex-assigned-at-birth and, at the same time, alter their customary social behavior.

The analogy between religion and gender is not sustainable beyond the desperate desire of entitled cross-dressers to claim that wearing a dress actually changes their sex. And then to have this delusion supported as if it were religiously protected speech under the First Amendment! Did you hear that? GLAD would like males to be able to demand entrance to female-only space on the basis of a “sincerely held belief” that their gender identity is female/feminine, and for this belief to be considered as sacred and legally untouchable as a religious practice, such as a Muslim’s duty to pray or a Jewish person’s observance of the Sabbath.

One other note – GLAD reports that “attempts to amend the bill to exclude bathrooms, locker rooms and boarding houses failed.” The law is inclusive  of these contexts and does nothing to address the reasonable public policy behind sex-segregated facilities. So, ladies, be prepared for individuals’ Internal Gender to trump your biological sex.

We remain convinced that responsible advocates of “gender identity” should advocate for legislation that includes objective  definitions of “gender identity” that will protect the individuals we want to protect – actual trans* people.  That GLAD and other organizations continue to advocate for overbroad definitions of “gender identity” – no matter how cloaked in objective-sounding language – speaks to their priorities – which do not, it seems, include female safety and female rights to sex-segregated space.

Elizabeth Hungerford and Cathy Brennan jointly wrote this blog post.

We advocate female safety with regard to gender identity legislation because female safety is important. And we are female.  If you do not take female safety into account when you promulgate gender identity legislation, we believe you favor eviscerating sex-based protections for females, and we will criticize that action. End of story.

This isn’t just about *you* or people of trans* experience. This is about shifting a burden onto females. Females comprise at least 50% of the population. We are everywhere.  And females are already overburdened and expected to absorb whatever is thrown at them without complaint.

No more. We – females – are complaining.  How DARE you suggest that we don’t have a right to complain about what happens to OUR space?

So, when *you* say:

I think what you actually mean is:

To which we respond:

However, she raises an interesting real-life set of facts that illustrate the concerns raised in our submission to the United Nations and the objective definition of “gender identity” we believe responsible GLBT Organizations should advocate.

Ms. Rose asks: “Should this person have been allowed to volunteer as a rape crisis counselor at rape relief center that only allows women to be rape crisis counselors? Should this person be allowed to use women’s restrooms?”

First, who is this person? Kimberly Nixon is a post-operative transsexual woman who unsuccessfully pursued a case against Vancouver Rape Relief, a organization that provides direct service to females traumatized by sexual violence, over the organization’s unwillingness to allow Nixon to volunteer as a rape counselor.

So, should VRR have allowed Ms. Nixon to volunteer as a rape counselor?

First, we believe it is important to note that Nixon v. VRR is a Canadian decision applying Canadian law. We do not claim to know Canadian law, nor are we admitted to practice law in Canada (and, to our knowledge, neither is Katrina Rose).  Other countries have different legal traditions than those in the United States, and any analysis that fails to account for these varying legal traditions strikes us as chauvinistic, at best. That said, for the sake of argument, let’s assume that Ms. Nixon sought employment (not a volunteer position) at a similar type of organization in a hypothetical state that adopted the definition we advocate in our UN Submission.  That definition provides as follows:

“Gender identity” means a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, or related condition, as deemed medically necessary by the American Medical Association.

Nixon, as a post-operative transsexual, easily satisfies the requirements to assert “gender identity” as a basis for protection from discrimination in employment – in other words, she is one of *the persons* our definition seeks to protect.  She has demonstrated that she falls within the specific class of people we believe “gender identity” laws should protect, and she clearly falls within the objective definition we advocate – a definition designed to balance the rational need for sex-based protections for females with the stated need of transgender people to operate in a world free from irrational discrimination.  A jurisdiction using our proposed definition of “gender identity” to ban discrimination in employment would protect Nixon.  If that’s the question Ms. Rose meant to ask, I would expect her to be happy with that conclusion.

Now, recall that Ms. Nixon did not seek employment in her case. Rather, she sought to volunteer as a rape counselor. The court explained that “(t)his is quite a different case from, say, Ms. Nixon being excluded from a restaurant because of her transsexual characteristics. Unlike a for-profit business providing services or recruiting employees from the general public or a volunteer organization open to all, Rape Relief defined itself as a women only organization with the express approval of the state …”

Further, the court noted that “Rape Relief’s exclusion of Ms. Nixon from its club-like sisterhood cannot be equated with legislated exclusion from entitlement to public benefits … in terms of its objective impact on human dignity.”

Looking at Canadian law as described in the Nixon case, Canadian law makes a clear and important distinction between for-profit business ventures or access to public benefits, and an organization whose primary purpose is the “…promotion of the interests and welfare of an identifiable group or class of persons…”  So, under Canadian law, it appears that not only is the definition of the person’s membership in the class at issue, but different contexts justify different considerations in regard to individual entitlement.  I suspect that this isn’t a result Ms. Rose and other advocates of eviscerating sex-based protections for females would support, but that’s Canada for you!  Take it up with the Canadians.

Next, Ms. Rose asks whether Ms. Nixon should “be allowed to use women’s restrooms?”

Again, under the definition we advocate in our UN Submission, a public restroom in a jurisdiction that banned discrimination in public accommodations (including sex-segregated facilities) based on “gender identity” as we define it could not lawfully exclude Ms. Nixon from the women’s restroom.  Because she has sought medical intervention to guide her transition from male to female, she can assert “gender identity” as a basis for access to sex-segregated public accommodations like women’s restrooms should she encounter discrimination when she seeks such access.

We encourage reasonable debate on these issues, and we encourage reasonable persons to read the FAQs on this blog, and to submit a question for our FAQs if you have a question that hasn’t been asked and answered.

As such, we have sent the following response to the organizations that issued these guidelines. We are sharing these concerns as a serious effort to have a real discussion about issues of gender equality.

…………………………………………………………………………..

We write in response to your document entitled Making Shelters Safe for Transgender Evacuees (the “Guidelines”), released in anticipation of Hurricane Irene last month.[1]

We support measures to promote the safety of all persons; ensuring safety is of paramount importance, particularly in the wake of a natural disaster.  Sadly, the Guidelines do little to ensure the safety of female-bodied persons.  Rather, the Guidelines completely ignore the direction, history, and psychology of the harm females face because of their sex.  The Guidelines explicitly direct emergency shelters to unconditionally allow male-bodied people who claim that they “live and identify as women” to access female-segregated spaces without any regard to proof or duration of such condition.  In so doing, the Guidelines disregard the right of female-bodied people to sex-segregated space and prioritize the safety of self-identified transgender women above the safety of nontransgender females.    The result – a willful disregard of the concerns about female safety in the name of so-called “gender equality” – constitutes an unconscionable position for any organization that seeks to promote social justice, let alone organizations that claim to represent females.  Female needs and vulnerabilities deserve representation and serious consideration in all matters that compromise the boundaries of sex-segregated space.

Ironically, the Guidelines do in fact recognize the actual harm that female-bodied people can experience at the hand of male-bodied people.  The Guidelines provide that “a person’s own evaluation of his or her safety should always be respected. For example, transgender men may be concerned that they would be perceived as female in a men’s shelter, and feel safer housed with women.”  Reasonably, we believe, the Guidelines acknowledge that  nontransgender males in a shelter may perceive transgender men as female,[2] thus placing these transgender men at risk of female-specific harm if such transgender men become the target of violent attack.  The Guidelines implicitly recognize that male violence against females is a valid concern.  Although the Guidelines advise shelter workers to protect transgender men – who may grow a beard or use a male name and pronouns, among other transition efforts – by allowing them to seek refuge with females if they feel safer in female-only space, the Guidelines demonstrate no corresponding concern for nontransgender females.  Rather, the Guidelines direct nontransgender females to accept male-bodied trans “women” in their space without question, proof, or complaint.  This internal inconsistency promotes a double standard of care: one for trans people and another, lower standard for nontransgender females.

Female needs and vulnerabilities deserve representation and serious consideration in all discussions that compromise the boundaries of sex-segregated space, as females have a long-standing and legitimate interest in maintaining these boundaries.  We recommend that the Guidelines incorporate a balancing test to weigh the social discomfort and safety of transgender people against the rights and expectations of everyone else in the world, particularly females.  One reasonable compromise would be to limit the meaning of the term “transgender” to those whose medical history or treatment of transsexualism and/or government identification show one’s preferred “gender.”  Given that your organizations seek to override the boundaries of sex in sex-segregated spaces, such documentation should be the minimum prerequisite for access to sex-segregated space opposite one’s sex assigned at birth.  No doubt, this approach would deny some trans women access to the sex-segregated space of their choosing.  But the Guidelines endorsed by your organizations, while claiming to stand for “gender equality,” entirely disregard female need for sex segregation. This is unfair and unacceptable.

If NCTE, Lambda Legal and NGLTF can assert that fear of male violence constitutes a valid reason to allow transgender men to seek safe harbor with females, no doubt it should be quite clear why female concerns about male violence also constitute a valid reason to enforce the sexed boundaries of sex-segregated space to protect all females.  In other words, male violence (against females) is not ONLY a problem for transgender men – it is a problem for females as well.  We ask you to revise the Guidelines to more clearly balance the needs and interests of all people equally.

Sincerely,

Elizabeth Hungerford

Cathy Brennan

Source of our concerns:

Females require sex-segregated facilities for a number of reasons, chief among them the documented frequency of male sexual violence against females and the uniquely female consequence of unwanted impregnation resulting from this relatively common form of violence.[xix]

We raise two concerns in this sentence:

1. the quantity of male-perpetrated sex-related violence against females and
2. the unique sex-based harm of unwanted impregnation that only males can cause females.

Let’s look at the second concern first. This refers to a specific kind of sex-based harm that only females bear the risk of. Many of our critics seek to dismiss arguments about reproductive harm by pointing out that not all females are impregnable. While this is true, it is not a successful refutation of our points. We have not said that impregnability is the definition of female; however, if a person is impregnable, she is female by definition and biological fact. The overwhelming majority of females who reach sexual maturity and have normal lifespans are impregnable for nearly 40 years of their lives. Girls and women within that age range are the largest category of females and constitute a group of over a billion people worldwide. That’s a lot of people who are capable of having the very specific sex-based experience of pregnancy.

But aside from that reality, the fact that not all persons in an identifiable class experience a particular harm does not lead to the conclusion that nothing should be done for those who do. The reality of impregnation, therefore, cannot and must not be dismissed as irrelevant to any conversation about the protection of female legal interests. This is particularly important to remember in discussions about sex-segregated spaces. In these spaces, where fertile and non-fertile women are mixed together sharing the same facilities at the same times, protection for some necessitates protection for all.

Returning to the first concern, regarding the well-documented frequency of male sexual violence against females, first and foremost, this is a serious problem. Females are the primary and majority of targets of male sexual violence. This should concern all people who care about girls and women of any kind — fertile or not. In this way, transsexual women, non-fertile, and fertile women are similarly situated. And as long as girls and women remain the primary targets of sex-based violence by males, all women — including transsexual women — share an interest in maintaining the boundaries of female sex-segregated spaces such that the possibility of fraudulent male intruders is minimized.

(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later. [my bold]

First, ENDA applies to employment contexts ONLY. Sex-segregated spaces, however, exist in numerous contexts OUTSIDE the scope of employment regulation: grocery stores, restaurants, gas stations, rest stops, public parks and pools, etc.  These are what we call PUBLIC ACCOMMODATIONS! There is, almost by definition, better oversight of individuals in a work setting; our co-workers are known persons (at least to our employers) with private personnel files and a professional interest in behaving appropriately. These potential deterrents of bad behavior are completely absent in spaces open to the general public, because any random member of the public can use PUBLIC ACCOMMODATIONS.  This is why we express concern with the overbroad definition of “gender identity” vis-a-vis PUBLIC ACCOMMODATIONS, as the “unknown person factor” poses a threat to female safety.

Secondly, the ENDA exception is further limited to “shower or dressing facilities.”  I don’t know about you, but I no longer work as a lifeguard and I have never used a shower or dressing/changing facility with one of my co-workers on work time. None of my employers has been large enough or profitable enough to offer such facilities. If they did, my use of them would be optional as opposed to necessary, unlike bathroom usage. Limiting Certain Shared Facilities to “shower or dressing facilities” makes it inapplicable and irrelevant to the vast majority of workers.  But for those employees with such facilities, why isn’t it a reasonable compromise to allow sex-segregation in which full frontal nudity is unavoidable? Are you saying that a biological female is a bigot because she cannot discern that the penis-bodied person showering next to her is actually a non-operative transwoman? Please ask your mother what she thinks of this. Go on – ask her.

Third, the exception reads “shower or dressing facilities in which being seen fully unclothed is unavoidable.” Again, this does not include bathrooms. Bathrooms are not exempted and they are not intended to be, as one usually does not become fully unclothed while using the toilet nor is she in view of other parties. I find it interesting that “being seen fully unclothed” is the sole danger ENDA recognizes as legitimate. This is, of course, just one aspect of female concerns about male-bodied persons in sex-segregated space.

From the female perspective, one is vulnerable at all times when using a bathroom. Bathrooms are often small, enclosed spaces, set away from common areas of a building. A woman must become partially unclothed in order to sit down on the toilet. The act of squatting is awkward as well, with many women feeling off-balanced by the hovering required to avoid actually sitting on the seat! Most bathroom stalls are not fully private and many are not lockable. The combination of these circumstances cause many women to feel anxiety and stress while using public bathrooms. It therefore seems strange to suggest that an employment context in which one is “seen fully unclothed” is the sole setting in which more stringent legal restrictions on sex-mixing are appropriate.

Overall, the ENDA exception does very little to address female concerns about overbroad “gender identity” definitions that disregard the sanctity of sex-segregated space. It’s a step in the right direction, but for all of the reasons stated above, it does not rectify our primary complaints about “gender identity” legislation.

We, on the other hand– as females and lesbians– are not invested in those conservative power structures. Instead, our arguments are narrowly focused to address protection of females from male predation in sex-segregated spaces. Further, we are not “exaggerating threats.” We take specific issue with overbroad legislative language and the foreseeable harm to women that can arise from the refusal to make any legal distinction between sex and ‘gender identity.’