The Roseanne Barr Show October 27, 2013

What is the problem with Gender Identity as a Legal Concept? Overbroad and allows anyone to claim it. See, e.g., New Mexico: “Gender identity” means a person’s self-perception, or perception of that person by another, of the person’s identity as a male or female based upon the person’s appearance, behavior or physical characteristics that are in accord with or opposed to the person’s physical anatomy, chromosomal sex or sex at birth.  Enshrines into law that gender is innate. This is anti-feminist.

What is Gender? Radical feminist view of gender is it is external, a “social construct.” It is also a HIERARCHY, with Women on the bottom, subordinate. Trans people speak of gender as individual, internal and unique to them. It is internal, specific to them and their subjective feelings. Saying things like “I always felt like a girl.”

Legal Definition of Gender Identity “Gender identity” means a gender-related identity of a person, regardless of the person’s assigned sex at birth.  Problems posed for Women and Girls We are shackled by a concept that says there are feminine qualities, or qualities associated with being “female.” This is harmful. We cannot have space away from male-bodied people, be it sex segregated spaces or organizing.

What Does All This Mean? This is both a legal and cultural battle. I support anti-discrimination protections for transgender and transsexual people that do not run rough-shod over laws that protect females. 

What is the UN Letter Definition of Gender Identity? In the UN letter, we proposed the following definition of “gender identity” – 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.” Such a definition would protect the classification of sex, while simultaneously providing a cause of action for discriminatory practices on the basis of a persistent and documented “gender identity.”  We welcome people who fit into this definition into space segregated by sex in recognition of their perceived need for access and in the fervent hope that we can achieve such protection for identifiably transgender or transsexual people without harming females. This is an objective standard.

What About Penises???? Some jurisdictions have attempted to get around the “penis in the women’s shower” problem by adopting improper purpose language, or language about “nudity” or “privacy.”  The “Penis issue” or “Men in bathroom” meme is a wholly inelegant way to discuss complex issues. Women have a right to be concerned about safety.

Legislative Responses to Male-Bodied Transwomen Helena, Montana: “However, in any place of public accommodation where users ordinarily appear in the nude, users may be required to use the facilities designated for their anatomical sex, regardless of their gender identity. Such requirement does not constitute unlawful discrimination for purposes of this Section.”

Legislative Responses to Male-Bodied Transwomen Connecticut: The definition of gender identity 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.”

Legislative Responses to Male-Bodied Transwomen Howard County, Maryland: Interestingly, the county bill sidesteps single-sex accommodations.  Specifically, the bill provides that “discrimination (in employment) does not include providing facilities to employees that are distinctly personal or private in nature.”  The bill further states, “Public accommodations does not include accommodations that are distinctly private or personal in nature.”