Last Friday and Saturday, I wrote about Vermont House Bill 865, which would make "gender identity or expression" a protected class under Vermont's nondiscrimination statutes. The bill passed the Vermont House 88-47 and by voice vote in the Senate, but Republican Governor Jim Douglas vetoed the bill last Thursday. If there is a vote to override the veto, it will occur Thursday, June 1.
Today, as promised on Saturday, I am posting the letter I sent these representatives. Please go below the fold to read this letter.
First, my apologies to those who expected this letter on Sunday: unfortunately life intervened and delayed this post. The letter itself is very long, but it's meant to educate these law makers on the issues involved. Transsexuality is very hard for most people to understand, since we generally take for granted that our anatomical sex and our gender identity match. There are many misconceptions about transgendered and transsexual individuals out there, and the only permanent way to combat those misconceptions is education.
I also wanted to give a detailed rebuttal to Governor Douglas's objections to the bill. In truth, his objections are, at first glance, reasonable ones, especially if we assume that he does not fully understand what it means for an individual to be transgendered or transsexual. Certainly I would expect many legislators and much of the general public to accept these objections as reasons to rework the bill. These objections can be addressed, however, and I attempt to do so in my letter.
So, without further ado, here is my letter to several members of the Vermont House of Representatives:
Dear Representative __________,
My name is [My Name], and I am a former resident of [Name of Town], Vermont. As you are no doubt aware, Governor Douglas recently vetoed House Bill 865, "An Act Relating to Nondiscrimination." I am writing to you to ask for your support in overriding this veto.
House Bill 865 defines the phrase "gender identity or expression" and then inserts that phrase into the list of protected classes covered under Vermont's current nondiscrimination statutes. The bill passed 88-47 in the House (with significant tripartisan support) and by voice vote in the Senate. If the leadership of the legislature decides to attempt to override the veto, the vote to override will occur on Thursday, June 1. At least thirteen more votes in the House are needed to make an override a reality. I hope that, after reading this letter and thinking about the good this bill will do for a very vulnerable group of Vermonters, you will decide to become one of those thirteen.
The main beneficiaries of House Bill 865 would be transgendered and transsexual Vermonters. There are many misconceptions in our culture about what it means for an individual to be transgendered or transsexual. Since most people in the United States are unfamiliar with the true meaning of these terms, I respectfully ask that you allow me to give you a primer on the issues involved.
The terms transgendered and transsexual deal with the notions of anatomical sex, gender identity, and gender expression. Anatomical sex, of course, refers to the shape of an individual's genitalia, which are almost always male or female (about 1 in 2000 individuals, however, are born with ambiguous genitalia; these individuals are among the intersexed). Gender identity refers to whether a person identifies with men or identifies with women (or some combination of the two). While there is much controversy over the origins of gender identity, we do know that gender identity is an immutable trait of an individual's personality: it does not change with time, and it cannot be modified be any known scientifically reviewed therapies. Gender expression refers to gender-related appearance, expression and behavior. Examples of gender expression include (but are not limited to) clothing, language, mannerisms, grooming, and preferences generally associated with one anatomical sex but not the other. When taken all together, the ways in which an individual expresses gender are called that individual's gender presentation. Gender expression is a changeable outside expression of an individual's personality. That which we consider male gender expression and female gender expression changes with time (sometimes very rapidly) and from culture to culture (sometimes very significantly). An individual's gender expression may not be homogenous: for example, an individual may wear male clothing but have female mannerisms. Most individuals who are anatomically male, however, exhibit male gender presentation (predominately male gender expression), and most individuals who are anatomically female exhibit female gender presentation (predominately female gender expression).
A transgendered individual is usually defined to be an individual whose anatomical sex does not match his or her gender identity, i.e., a male who identifies with women, or a woman who identifies with men. (The definition of "transgendered" is a matter of debate, but certainly all individuals covered under the definition given here would be considered transgendered.) A transsexual is a transgendered individual who seeks to have his or her gender presentation match his or her gender identity. Specifically, a male-to-female transsexual is someone who is or has been anatomically male, but who identifies with women and who seeks to live her life with a female gender presentation. Likewise, a female-to-male transsexual is someone who is or has been anatomically female, but who identifies with men and who seeks to live his life with a male gender presentation.
I would like to talk about two common misconceptions at this point. The first is that transgendered or transsexual individuals have some sort of extreme form of homosexuality. This is not true: the sexual orientation of an individual has no impact on whether or not that individual is transgendered or transsexual; the only factors germane to being transgendered or transsexual are anatomical sex, gender identity, and gender expression, and none of these factors are predicated on sexual activity or sexual preference. The notion that transsexuality is an extreme form of homosexuality originates in models of homosexuality and transsexuality developed during the 1950s; these models are no longer considered to be valid by most practicing gender specialists.
The other common misconception is that being transgendered or transsexual is equivalent to being a crossdresser. A crossdresser (which is more neutral term for transvestite) is an individual whose anatomical sex and gender identity match, but who wears clothes and, in general, has a gender expression usually associated to the opposite sex at least part of the time. The key difference between crossdressers and transgendered and transsexual individuals is that with a crossdresser, anatomical sex and gender identity match, whereas with an individual who is transgendered or transsexual, the two are or have been mismatched. Again, let me reiterate that gender identity and gender expression are not synonomous: in particular, the first is a permanent feature of an individual's personality, while the second is a changeable outside reflection of that individual's personality based in part on societal norms. There exist at least one study on autopsied brains that associate an individual's stated gender identity to the size of a particular brain structure (specifically, the BSTc region of the brain was found to be significantly smaller in women and male-to-female transsexuals than in both heterosexual and homosexual men to a high degree of statistical significance; see Zhou et. al. (1997), "A sex difference in the human brain and its relation to transsexuality" for details). While crossdressers and transsexuals both exhibit atypical gender expression, for a transsexual individual, the root cause of his or her gender expression is his or her mismatched gender identity and anatomical sex, whereas for a crossdresser, the reasons are generally unrelated to gender identity.
For some transsexuals, the mismatch between anatomical sex and gender identity causes enough discomfort that the individual seeks to change his or her anatomical sex so as to match his or her gender identity. For both male-to-female and female-to-male transsexuals, there are therapies and surgeries available to make this change a reality. In both cases, there is a set of guidelines that gender specialists follow in assisting these individuals called the Harry Benjamin Standards of Care, named after one of the pioneering gender specialists, Dr. Harry Benjamin. These Standards of Care lay out a specific timetable and a specific set of criteria for obtaining the hormonal therapies and surgical procedures needed for an individual to change his or her anatomical sex. The most significant of these criteria is the Real Life Experience. In order for an individual to qualify for a surgery to modify his or her genitalia, that individual must live and function presenting as his or her target sex (that is, with a gender expression matching his or her gender identity) for one full year, twenty-four hours a day, seven days a week. This is to insure that the individual is ready to undergo these surgeries, which are largely irreversible. Let me emphasize that these are major surgeries which can and do have major complications. The other facets of changing anatomical sex (a process generally called transition) are often painful and often have side effects. In the United States, these therapies and surgeries are very expensive (tens of thousands of dollars) and usually are not covered by insurance (in contrast to several other nations with national health plans, including Canada, the United Kingdom, Australia, and the Netherlands). No one would go through transition if he or she did not strongly believe it to be necessary. For many transsexuals, transition is not optional in any real sense of the word. It should be pointed out here that the suicide rate in the transgendered population is estimated to be as high as one-third, so for many transsexuals, the ability to transition has real implications for their ability to live and function.
As you might have guessed at this point, the Real Life Experience is a time of great vulnerability for a transitioning transsexual. This individual, depending on his or her birth sex, must at some point in time either change her gender presentation from male to female, or change his gender presentation from female to male. In doing so, he or she must maintain adequate housing and employment in order to support his or herself, while at the same time saving money for the very expensive surgeries that will follow. The potential for discrimination in employment and in housing is enormous, and that potential is often realized. Quite a few transitioning transsexuals end up homeless and unemployed; many more lose their jobs and end up severely underemployed. A transitioning transsexual also needs to use public accommodations appropriate to his or her current gender expression, not only to fulfill the Real Life Experience, but also because to use the public accommodations associated with his or her birth sex would be far more conspicuous and often times more dangerous for the transsexual individual. Generally speaking, a male-to-female transsexual offers no more of a threat to someone in the women's restroom than any other woman, and would likely not be noticed if her anatomical sex were not known. Many male-to-female transitioning transsexuals, however, seek out single occupancy, unisex accommodations in deference to the feelings of others while their anatomical sex and gender presentation mismatch. Still, discrimination in the use of public accommodations is common when the anatomical sex of the transitioning transsexual is known. All of this discrimination and potential discrimination makes the process of transitioning, already very burdensome psychologically and financially, much more difficult and stressful. Let me again emphasize that the need for transitioning arises from factors over which the transsexual individual has no control (that is, his or her anatomical sex and gender identity, and the mismatch between the two), and for many, transitioning is not optional in any meaningful sense.
My whole point in giving you this primer on transgendered and transsexual individuals is to give you some idea as to why these individuals should be protected under Vermont's nondiscrimination statutes. At this point in history, transgendered and transsexual individuals are often times misunderstood. The general public often misconstrues the motivations of transitioning transsexuals as being somehow perverted in nature or otherwise unworthy of respect; these misconceptions are often perpetuated in popular culture, with television and film only recently beginning to portray transsexuals compassionately in mainstream shows and features. In such a climate, it is necessary for the state to take action to protect transgendered and transsexual individuals from losing their housing and their livelihoods, since we cannot expect the current state of public opinion, often unduly hostile towards transgendered and transsexual individuals, to change on its own accord in a timely fashion.
Now allow me to respectfully address some of the questions that Governor Douglas raised in using his veto powers on House Bill 865. Governor Douglas stated in news reports (see "Controversial Veto on Discrimination," WCAX-TV, May 18, 2006) that he believes that House Bill 865 duplicates current statutory protections. While it is true that Attorney General Bill Sorrell has interpreted current nondiscrimination legislation to protect transgendered and transsexual individuals under the protected class "sexual orientation," such protections are predicated on the current Attorney General remaining in office or an attorney general of a similar mind on issues of gender identity taking his place. Furthermore, as pointed out earlier in this letter, sexual orientation is not a factor in whether or not an individual is transgendered or transsexual. The connection between homosexuality and transsexuality is more one of history and common activism. Since being transgendered or transsexual is not a matter of sexual orientation, the current protections afforded under Attorney General Bill Sorrell's tenure are somewhat tenuous: they may not survive under court challenge. Finally, as a legislator, I doubt that you need any convincing when I write that an explicit statute would have a far greater impact on those who might consider discriminating against a transgendered or transsexual individual than the Attorney General's interpretation of the law. Explicit statutes are viewed as being more legitimate by most because they derive their legitimacy from the people of Vermont through their representatives, not through a single elected official in the executive branch. They are also considered more permanent and more likely to be enforced. Thus I believe that, while House Bill 865 duplicates the current interpretation of Vermont's nondiscrimination statutes, it is far more powerful than the status quo because it offers more legitimacy and permanency than the current interpretation.
Governor Douglas also said, according to the same news report, that he believes that House Bill 865 is vague and unclear. Since almost the entire bill consists of inserting the phrase "gender identity or expression" into existing statutes, I must assume that he is specifically referring to the definition of "gender identity or expression" given in Section 1. That definition is the following: "an individual's actual or perceived gender-related identity, appearance, expression, or behavior, regardless of an individual's assigned sex at birth." My contention is that this is a minimal definition needed to protect a transsexual individual during transition. In order to offer adequate protection, any definition of "gender identity or expression" needs to include gender-related identity, appearance, expression, and behavior among the types of gender expression protected under statute. To remove any one of these four words would leave open the possibility of discrimination based on an individual's gender presentation. For example, identity protects against discrimination based on an individual mentioning their atypical gender identity; appearance protects against discrimination based on an individual wearing clothing that does match his or her perceived anatomical sex; expression protects against discrimination based on an individual using language or expressing preferences or emotions usually associated with the opposite sex; and behavior protects against discrimination based on an individual using gestures, mannerisms, or other body movements normally not found in individuals of his or her anatomical sex. If a transsexual transitions from one gender presentation to another, all four of these types of gender expression will not match the individual's anatomical sex, so all four need to be protected in some way. While each of these four terms might be parsed into more specific classes of gender expression, to do so would likely either remove some of the necessary protections, or else result in the same protections in a more complicated form. In my opinion, the four types of gender expression listed do a good job of succinctly and comprehensively protecting transgendered and transsexual individuals against discrimination. The rest of the definition then makes clear that a finding of discrimination should not depend on whether or not the individual was exhibiting atypical gender expression (that is, discrimination based on perceived atypical gender expression should also be actionable), and that it should not depend on the individual's assigned sex at birth. Both of these parts of the definition close loopholes that would make it easier for those who discriminate based on gender identity or expression to avoid findings against them based on legal technicalities. Overall, it would be very hard to remove any one part of this definition without significantly diluting the effectiveness of this legislation.
A reasonable question to ask is whether or not this legislation provides unintended protection to other classes of individuals, and if so, whether or not these unintended protections are avoidable. It does appear that the above definition would protect an individual who exhibits atypical gender expression, regardless of whether or not the gender identity of that individual matches his or her anatomical sex. Thus this legislation also protects crossdressers. Whether or not you believe that crossdressers should be part of a protected class under Vermont law (and I believe that they should be protected), these protections are unavoidable under any reasonable definition of "gender identity or expression" which adequately protects transitioning transsexuals. This is because the main difference between a transsexual and a crossdresser (when dressed as the opposite sex) is that the anatomical sex and the gender identity of a transsexual are or have been mismatched, while those of a crossdresser are matched in the typical way. It may be particularly difficult for an outside observer, such as a member of a jury, to differentiate between a crossdresser and a transsexual who is at the very beginning of experimenting with his or her gender presentation, especially if that transsexual is not yet under the care of a therapist, and thus has not yet received an official diagnosis.
For the purposes of the law, in order to protect transsexuals without protecting crossdressers, any definition of "gender identity or expression" would have to include some reference to gender identity (in the sense of whether an individual identifies with men or identifies with women). If such a qualification is included in the definition, the injured party in a discrimination lawsuit would have to show that he or she qualified for protection under the law: that is, he or she would have to show that his or her gender identity does not match (or at one time did not match) his or her anatomical sex. The problem with this requirement is that there is no known reliable objective test for determining gender identity. The injured party would have to rely on his or her own testimony and on the expert testimony of his or her therapist, or some other gender specialist, to fulfill this requirement. This would require the injured party to partially release that gender specialist from confidentiality agreements, or, at the very least, have that gender specialist identify the individual's gender identity in court in order to seek restitution. This places an undue burden on the injured party, especially since the injured party and the gender specialist would likely be subject to cross-examination. No one should have to have his or her private thoughts on such a sensitive and usually embarrassing matter disclosed in a public court in order to seek restitution for discrimination. Since gender identity essentially amounts to the private thoughts of an individual (specifically, the ways in which an individual identifies with men or with women), such a public disclosure would be inevitable if gender identity were part of the definition of this protected class. The effect would be that many transsexual individuals would decide against filing suit or reporting claims of discrimination to avoid the public disclosure of private thoughts, and this would make the law far less effective. This would be particularly true for a transsexual who is still struggling with his or her mismatched gender identity and has not yet decided to transition: his or her fears about disclosure and the need to stay hidden from view might be too great to risk legal action, especially considering that this individual has already allegedly be subject to discrimination based on his or her perceived gender identity or expression.
Thus a mismatched gender identity cannot reasonably be made a qualification for being a member of the "gender identity or expression" protected class, so transsexuals and crossdressers cannot easily be separated through a modification of the above definition. In other words, crossdressers would be protected under this definition, but that protection is unavoidable, and even if you do not believe crossdressers should be protected, I hope that, after reading this letter, you have decided that trangendered and transsexual individuals should be protected despite this.
Finally, there is always the danger with any new protections that there will be frivolous lawsuits based on technicalities in the definition of the protected class, but the Attorney General, the Vermont Human Rights Commission, and the court system in Vermont should be able to deal with such cases appropriately. It is important to note that, by some counts, Vermont would be the ninth state to offer such protections, and several municipalities also have nondiscrimination protections based on gender identity. The judiciary in Vermont would be able to rely in part on court rulings in these states and municipalities in forming its decisions. So, overall, while Governor Douglas may be concerned about the bill being too vague, the definition for "gender identity or expression" stated in the bill is a minimal definition for the protections needed to address discrimination against transgendered and transsexual Vermonters, and it would be very difficult to make the definition more specific to transgendered and transsexual individuals without putting an undue burden on the injured party and thus diluting the effectiveness of the legislation. The definition is probably the best it can be without seriously modifying the goals of the bill.
Governor Douglas had one other objection to the bill according to the same news report: he states that the Vermont Human Rights Commission recommended against his signing the bill. Unfortunately, at the time of writing this letter, I was unable to find out the reasons for the 4 to 1 vote against the bill by the Human Rights Commission, so I cannot comment about their reasons. I can say, however, that the one commissioner that did vote to support the bill, Charles Kletecka, resigned in protest of the Governor's veto and in protest of the commission's vote. It was reasonable and responsible for Governor Douglas to have weighed heavily the opinions of the members of the Human Rights Commission while deciding whether or not to sign the bill, but clearly the opinions of the commissioners were not unanimous. I write this not to impugn the Governor's motives in any way, but to point out to you that, as you decide whether or not to vote to override this veto, it would be good and just for you to give Mr. Kletecka's opinion on the matter some weight, and to treat the Human Rights Commission's recommendation as a majority opinion, not as a unanimous opinion.
Thank you for taking the time to read this very lengthy letter. I hope that this letter has given you a greater insight into transgendered and transsexual individuals and into the positive effect House Bill 865 would have on their lives were it to become law. Your consideration of the issues at hand is greatly appreciated, and I hope that, after careful deliberation, you decide to count yourself among those who would override the Governor's veto and give transgendered and transsexual Vermonters the protections they need to live their lives in peace.