On Thursday, Governor Jim Douglas (R) of Vermont vetoed House Bill 865, a bill which would have added "gender identity or expression" to the list of protected classes in Vermont's non-discrimination statues.
The bill, which was passed 88-47 in the House and by voice vote in the Senate, would have enshrined into Vermont law protections for transgendered individuals against, among other things, employment discrimination, housing discrimination, and discrimination in public accommodations.
Please read below the fold to find out why you should care about the rights of transgendered individuals in Vermont.
What It Means to be Transgendered
First, let's talk about what it means for an individual to be transgendered. If you're interested in the bill alone, please skip this section or use it as a reference.
The first thing you need to know is that there are very significant differences between sex, gender, and sexual orientation. Here's a basic rundown:
Sex or anatomical sex refers to an individual's body structure with respect to organs for sexual reproduction. Most human beings are either male or female (for simplicity's sake, have a penis or have a vagina, respectively, but of course it's much more complicated than that). About 1 in 2000 individuals are born with ambiguous genitalia; these individuals are among the intesexed. There are many different kinds of intersexed conditions (including genetic abnormalities), not all of which result in ambiguous genitalia. Individuals with intersexed conditions account for about 1 in 200 births. Intersexed individuals have special concerns with respect to the law as well, but we will not be talking about them specifically in this diary.
Gender or gender identity refers to an individual's identification with men or women (or both, or neither). Most individuals of the male sex identify with men, and most individuals of the female sex identify with women. Here "most" is means a percentage greater than 99%. What it means to identify with men or women is a very controversial topic: gender seems to arise in part from nature (genetic predisposition, exposure to hormones in utero or at a very young age) and in part from nurture (the social structures passed on to us by the people who take care of us and by the community at large). In any case, the gender of an individual does not appear to be plastic -- it has not been observed to change with time -- and it does seem to corellate with some very slight statistical differences in brain structure between individuals who identify with men and individuals who identify with women. Let me emphasize that the mechanism behind this correlation is completely unknown, but the correlation has been shown in statistical studies and does give credence to the idea that gender is some sort of immutable and at least partially physical trait of the human brain.
Sexual Orientation refers to whether a sexually mature individual is sexually attracted to persons of the opposite sex, persons of the same sex, both, or neither. Notice that I am specifically using the word "sex," not "gender," in describing sexual orientation. Most sexually mature individuals of the male sex are sexually attracted to persons of the female sex, and most sexually mature individuals of the female sex are sexually attracted to persons of the male sex. In the case, the word "most" in the preceeding sentence is used in a much weaker sense than with "sex" and "gender," since gay males, lesbians, bisexuals, and asexuals account for at least five percent of the population. Sexual orientation is not the topic of this diary, although it will play a role in the discussion.
Every sexually mature individual can be classified by sex, by gender, and by sexual orientation. While there are strong corollations between the classifications male, "identifies with men," and heterosexual male, and the classifications female, "identifies with women," and heterosexual female, ultimately sex, gender, and sexual orientation are at least partially independent of each other. There have been individuals with every combination of sex, gender, and sexual orientation you can think of. There is nothing about any of these combinations which diminishes an individual's worth as a human being. If you leave this diary remembering any one sentence, let it be that one.
An individual is transgendered if that person is or has been of the male sex but does not identify predominately with men, or is or has been of the female sex but does not identify predominately with women. This is about the broadest definition I can think of, but I am sure that I will get some arguments about it. The classic examples of transgendered individuals are transsexuals. To understand what it means for an individual to be transsexual, we need one more preliminary definition:
Gender expression or gender presentation refers to the ways in which an individual expresses traits generally associated to gender identity. For example, gender expression refers to the clothes an individual wears, the ways in which an individual uses language, the mannerisms of that individual, the expressed likes and dislikes of that individual, and a multitude of other traits that are seen to be have some significance in the expression of one's gender identity. Gender expression is much more amorphous: for example, a person can express a male gender identity with their clothes, a neutral gender identity (i.e., neither strongly associated with men or with women) with their use of language, and a female gender identity with their mannerisms. How an individual expresses gender can and does change with time, place, and depending on with whom that individual is currently socializing, and what is considered male or female or neutral gender expression within a particular culture changes with time (sometimes quite rapidly) and varies from culture to culture (sometimes in very significant ways). The fact remains, however, that there is a strong correlation between sex and gender expression: most males express a male gender for their culture in most aspects of their gender expression, and most females express a female gender for their culture in most aspect of their gender expression. There are plenty of people, however, whose gender expression does not predominately match their sex at least some of the time.
A male to female transsexual (MTF) is someone who was born of the male sex but who identifies with women, and who seeks to live their life in such a way that their gender expression is predominately female. Likewise, a female to male transsexual (FTM) is someone who was born of the female sex but who identifies with men, and who seeks to live their life in such a way that their gender expression is predominately male.
So being a transsexual is a matter of sex, gender, and gender expression; it is not a matter of sexual orientation, as was believed in the 1950s when transsexuality was first being studied in the United States. At that time, a transsexual individual was thought to have an extreme case of homosexuality, but of course at that time, homosexuality was considered a mental illness. This model of transsexuality has long been tossed aside by most practicing psychologists and psychiatrists, but one vestige of that model still remains: whereas homosexuality has not been considered a mental illness since the early seventies, transsexuality is still a diagnosis used by mental health professionals.
A transsexual individual may or may not opt to physically change his or her sex along with their dominant gender expression. Among most gender specialists in the mental health and medical communities around the world, there is a single set of guidelines for an individual changing his or her sex called the Harry Benjamin Standards of Care, named after one of the early compassionate caregivers for transsexuals, Dr. Harry Benjamin. The Standards of Care lay out a set of criteria which must be met before a transsexual individual can proceed with the various therapies and surgical procedures needed to change his or her sex. These criteria are often times difficult to achieve, and are controversial to some, but their intent is to make sure that everyone involved in the change (the transsexual individual, therapists, and medical doctors) all are reasonably sure that this change of sex is the best course of action for the individual involved, since most of these therapies and surgical procedures are essentially irreversible.
I won't go through the full details of the Standards of Care, but there are a couple of main points which are important to understanding what a transsexual individual who elects to go through the sex reassignment process, called transitioning will likely endure. The first important part of transitioning is therapy: with some exceptions, a transsexual individual who seeks to change his or her sex must seek the counseling of a mental health professional who specializes in gender. This is usually very beneficial to the transsexual individual, because he or she has often times been dealing with the tremendous emotional strain of having, as society would see it, a sex and a gender which are incongruent, and, because of this, being unable to express themselves in a way congruent with their gender identity because to do so would conflict with his or her sex and bring upon them social ostracism, discrimination, verbal abuse, physical abuse, and, in some cases, death. In fact, because gender identity is so integral to who an individual is, often times a transsexual individual's incongruent gender identity will bleed out in their gender expression unconsciously, and because of this, those individuals have already experienced much of the abusive behavior above. The suicide rate for transsexual individuals is estimated to be as high as one-third of the population. Therapy helps transsexual individuals find self-acceptance in a world which has never accepted them for who they are.
The second part of transitioning is hormone therapy. For most individuals, three months of therapy and a letter from a therapist is needed before an endrocrinologist will prescribe hormones. The idea behind hormone therapy is to change the balance of sex hormones in the individual's body from the balance normally seen in the sex of birth to the balance normally seen in the sex of choice. For a MTF transsexual, this means taking estrogen, possibly progesterone, and an androgen blocker; for a FTM transsexual, this means taking testosterone. The physical effects of hormone therapy can be very significant. A MTF transsexual on hormone therapy will see her skin become smoother (and yes, the appropriate pronoun is she, the pronoun of gender identity), her breasts develop, and her fat redistribute lower on her body, as well as a cessation of scalp hair loss (although no regrowth) and a dimunition of most body hair, among other effects. Facial hair and bald areas of the scalp are uneffected; these need to be dealt with by other means (usually electrolysis in the former case). The overall effect is to give the MTF transsexual the basic body structure and look of a woman (even though her genitals are unaffected at this point). The effects on FTM transsexuals are even more pronounced: along with muscle growth and body hair growth, he will also see facial hair grow, his scalp hair recede, and, on top of this, his voice will deepen and his facial structure will become more masculine (there are specific parts of the bones of the face, like the brow and the jaw lines, which are androgen-sensitive). Breasts, however, are unaffected, as the genitals are mostly unaffected. For a FTM on hormone therapy for a couple of years, with the possible exception of having visible breasts, a FTM transsexual will look and sound like a male.
The third part of transitioning is the various surgeries, called sex reassignment surgeries, or SRS. There are various criteria for candidacy for each of the surgeries; the most strenuous criteria are reserved for genital surgery. Genital surgery generally requires at least a year of hormone therapy and letters from two gender specialists (one of which must have a Ph.D. or an M.D.) attesting that genital surgery would be appropriate for the individual, and most importantly, the Real Life Experience. To complete the Real Life Experience, a transsexual individual must live and function in society as their target gender 24 hours a day, 7 days a week for an entire year. Again, note that this is before genital surgery, so a MTF transsexual must live and function as a female (in other words, their gender expression must be female) even though she still has male genitalia.
Think about the implications of going through the Real Life Experience. Assuming this individual is a MTF, she has to change her gender presentation and overall gender expression from male to female and live and function as a woman. She has to do this in front of people who almost certainly knew her when she presented as male, many of whom will be hostile towards her; if she has a family, she must tell them now about her transsexuality if she hasn't done so already, and many family members will also be hostile towards her; she has to maintain her employment and her housing, often times in the face of hostile employers and landlords; she has to do through myriad legal procedures, often times in a hostile state, to legally change the sex marker on her identification (something which has become harder since September 11th because of states tying their databases to the Social Security Administration, which will not recognize a legal sex change without proof of genital surgery); she has the basic problem of having to use the female restroom now even though she has male genitalia, because to walk into the male restroom presenting as a female would be dangerous, to say the least; she has to deal with all of the same safety issues that women who were born female has to deal with, with the extra difficulty that a sexual assualt could very well end with her murder once the perpetrator finds out that she has male genitalia. Transitioning is not for the faint of heart.
The surgeries themselves, however, are extremely good for MTF transsexuals. Modern surgical techniques are able to create a vulva which is virtually indistinguishable from that of someone born a woman; the new vagina and clitoris are usually sexually functional. Other than proceation, the new female genitalia are a very good substitute for "the real thing." For MTFs, there is also facial feminization surgery (or FFS), which does not require the Real Life Experience. FFS basically reserves the effects of male hormones on the facial bones, particularly around the brow and the jaw; it also generally try to correct the hairline, which is lower on most females. The overall effect of FFS is often times astonishing: the before and after photos for an individual who undergoes FFS sometimes look like brother and sister side-by-side. So, overall, if a MTF transsexual can make it through transitioning, her outcome is likely to be very good -- the trick is getting through transition in one piece.
For a FTM, the surgeries are not as good: the main surgery that FTMs opt for is breast reduction surgery, which often times has an immediate effect on a FTMs self-esteem. (If you're male and identify with men, imagine having full breasts. Now imagine being able to remove them. That's how a FTM feels -- just like you would feel.) For the genital regions, the results are not as satisfactory as in the MTF case. There are techniques for building a (somewhat) functional penis, but these often involve disfiguring scars and the result is definitely not as good as a penis on someone born male. While some FTM transsexuals have been satisfied with these surgeries, most don't opt for this surgery (at least not the full surgery) because for many the results are not thought to be worth the cost. (This is one reason why the Social Security Administration requirement of proof of genital surgery is too burdensome: it puts an undue burden on FTM transsexuals to change their sex.) Overall, however, FTM transsexuals also have a good prognosis once they get through transition.
There is one other major burden here for you to understand about being a transsexual individual, and that's the cost. Many nations with national health plans the major costs of transitioning, including Canada, the United Kingdom, Australia, and the Netherlands, to name a few. There is an understanding in these nations that being an transsexual individual is a very large burden, and that transitioning for many is hardly optional in any real sense. In the United States, however, most insurance plans specifically exclude all surgeries and therapies for transsexual patients. This includes hormone therapy and even mental health services. The reason usually given is that these therapies and surgeries are "experimental," which is demonstrably false since thousands of sex reassignment surgeries are performed every year in the United States and around the world (particularly in Thailand). Many transsexual individuals with health insurance (which is usually predicated on employment, of course) are able to get mental health services and hormones by concealing the reason for these therapies with alternate diagnoses, but for surgeries, a transsexual individual is usually on his or her own. The costs are mindblowing: for MTFs, genital surgery costs around $20,000 in the United States (partly because of the cost of hospitalization in this country); FFS can cost anywhere between $15,000 and $40,000; electrolysis to remove facial hair can cost upwards of $20,000 total ($70.00 per hour for an average of 250 to 300 hours); plus there may be other surgeries, like hair restoration surgery, which are essential to passing as a female. For MTF, there is no need for FFS and electrolysis, and breast reduction is relatively inexpensive (less than $10,000), but genital surgery can cost upwards of $50,000. As you can see, it isn't cheap to be a transsexual in the United States.
There are other transgendered individuals other than transsexuals, and there are other individuals who are not transgendered (by my definition above, which is certainly disputable) but who whose gender expression does not match their sex all of the time. Crossdressers (the proper term for transvestites) fall into this category. A crossdresser is someone for whom his or her sex and gender identity are congruent by society's standard (e.g., a male who identifies with men or a female who identifies with women), but who chooses to wear clothing and express a gender presentation usually associated to the opposite gender at least part of the time. The reasons given for this behavior are comfort, wanting to feel free to express themselves, and, yes, sexual excitement (although for many crossdressers, this is not one of their reasons). Clearly being a crossdresser can be very dangerous if that person chooses to present as the opposite sex out in public. It also puts a strain on a person's social life, and in particular their marriage if they are married, but many crossdressers feel compelled to present as the opposite sex, and while there is no underlying gender identity incongruity to explain their crossgender behavior, it still seems to be an integral part of their personalities, and should be respected as such.
The Vermont Bill
Vermont House Bill 865 would have done exactly two things:
1. The bill would have defined the phrase "gender identity or expression" to mean
an individual's actual or perceived gender-related identity, appearance, expression, or behavior, regardless of the individual's assigned sex at birth.
This is a standard definition for "gender identity or expression" and it basically matches the definitions I gave above, though not as much detail.
2. The bill would have inserted the phrase "gender identity or expression" into a number of paragraphs in Vermont's non-discrimination statues, making "gender identity or expression" a protected class under Vermont statutes.
The bill would not have added any new non-discrimination clauses to Vermont law. It would have only acted to reinforce the current Vermont Attorney General's interpretation of the law, which looks upon gender identity as a protected class under "sexual orientation." This, of course, is likely partly due to a misinterpretation of transsexuals being a sexual minority, but to his credit, Democrat Attorney General Bill Sorrell has sued on this basis twice for dicrimination based on gender identity. The idea behind this bill would have been to put these protections for gender identity or expression, already interpreted as existing in Vermont law by the Attorney General, into statute under their own protected class.
Had Governor Douglas signed the law, Vermont would have become the ninth state (tenth if you count the District of Columbia) to ban in statute discrimination based on gender identity. The other states are California, Maine, Minnesota, Washington, New Mexico, Hawai'i (housing and public accommodations only), Illinois, Rhode Island, and the District of Columbia. Connecticut has a bill that just passed committee 28-8 in the State Senate. New York, New Jersey, Connecticut, Massachusetts, Florida, and Vermont do offer protections under court rulings or attorney general interpretations of the law, but do not have these protection in statute. See this map from the Human Rights Commission for details about your state.
Why did Governor Douglas veto the bill?
According to a report from WCAX (found here, Governor Douglas says he vetoed the bill for three reasons:
1. He believes that the bill offerred duplicate protections to those already provided by law.
2. He believes that the law is too vague.
3. The Vermont Human Commission recommended against signing the bill.
The first of these reasons depends on how you intrepret the current statutes. If the Attorney General is Bill Sorrell or someone similar, then yes, gender identity is being protected under the "sexual orientation" clause. If a more conservative Attorney General is elected, however, then these protection will vanish with that person's inauguration. I should also point out that Attorney General interpretations never have the same weight as statute for employers, so they are more likely to violate them. Vermont's transgendered community needs this bill to secure its rights.
As for his second reason, the only part he could possibly mean is the definition of "gender identity or expression," since the rest of the bill consists of inserting that phrase into the non-discrimination statutes. Perhaps he feels that this definition is open to abuse, but it is similar to the definitions given in many other manicipalities (for corrobolation of this, see Dr. Jillian Todd Weiss's excellent blog Transgender Workplace Diversity). If this definition were likely to be abuse, it would have already been abused. As for how to interpret these protections in difficult circumstances (restroom usage, transitioning at the workplace, prisoner incarceration), these situations all have well-develop solutions at this point in other states. Besides, according to him, these protections are already in place. If this law duplicates current Vermont protections, by his view, shouldn't abuse already be apparent?
Finally, we have the Vermont Human Rights Commission recommending that Governor Douglas not sign the bill. The Vermont Human Rights Commission is charged with enforcing the state's non-discrimination laws. The commission has five members, each with a five year term. Three of the current members are Douglas appointees, and one is an appointee of Governor Howard Dean. I would say that two are appointees of Governor Dean, but according to the Burlington Free Press, Charles Kletecka, one of Dean's appointee, resigned in protest of Governor Douglas's veto and the Human Rights Commission's 4 to 1 vote against the bill. Read the linked article for more details, but here's a choice quote from Mr. Kletecka:
"Vermont has a long and proud tradition of protecting the rights of those among us who are most vulnerable to discrimination," Kletecka wrote in his resignation letter. "The legislation you vetoed would have afforded some protections to a much misunderstood and maligned group of Vermonters."
These are very true words.
So, having gone through Governor Douglas's reasons, my opinion is that the first two do not hold water. As for the third, maybe he is just following the lead of the Human Rights Commission. According the news report from WCAX, he sounds open to revisiting the bill, or at least that's how he's presenting his point of view. As for the Human Rights Commission, I don't know what happened there, especially since one of the people to vote against the bill is a Dean appointee. These are people charged to enforce the non-discrimination bill; I would think they would know better than most that this was a reasonable bill.
Of course, we mustn't forget politics: Governor Douglas is up for re-election this year, and there is no presidential vote to get Republicans to the polls this year. In fact, the vote for U.S. Senate is almost a foregone conclusion (if Bernie gets less than sixty percent of the vote I'll be surprised) and while the Democratic candidate for Bernie's seat in the House, Peter Welch, is nothing to write home about (and I say that as a former constituent of his), his Republican opponent has made so many mistakes that she's hardly going to bring voters to the polls. So, maybe this is fresh meat for the base. I guess we'll see if it works.
In a future diary, I'll talk about what we can do to get an override on this veto. The vote in the House was not close, but not quite at the two-thirds threshold needed for an override. According to news accounts, nine Democrats voted against the bill. The vote in the Senate was a voice vote, so we have no read on support (although a voice vote is certainly a good sign). An override is doable, and it would send a message to Governor Douglas. I hope that now that's you've read this (very long) diary, you agree that this is a fight worth fighting (and winning).
Updated 20 May 2006 at 7:51 PM to correct some statistics in the "sex or anatomical sex" paragraph.