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Guest post by: Jennifer L. Levi, Transgender Rights Project Director for the Gay & Lesbian Advocates & Defenders (GLAD)
While I was recently crowing about our tremendous legislative victory in Connecticut getting a transgender non-discrimination law passed, someone mentioned to me that there were rumors spreading from within the transgender community that there should be cause for concern because of the definition of “gender identity or expression” ultimately included in the law. Apparently, some people were saying that the language “sold out the non-transsexual part of the community,” by requiring evidence of medical transition; others said it was introduced by some segment of the feminist community to limit the scope of the protections. Both are complete falsehoods.
To say that I was surprised and concerned is somewhat of an understatement. Given how hard, tirelessly and cooperatively our coalition of advocates had worked over the last 7 years to get this law passed, I was disturbed that anyone, not to mention anyone within our community, would question the strength of the law, or the commitment of its supporters.
But looking back at the definition, knowing how alienating legalese can be, and being aware of the bitter divisions within other state’s LGBTQ communities, it makes sense that people might wonder about why we eventually settled on the language we did in the Connecticut law. First, the basics. The Connecticut law defines “gender identity or expression” as a person’s gender-related identity, appearance, or behavior, whether or not that identity, appearance, or behavior differs from that traditionally associated with the person’s physiology or assigned sex at birth. That language is consistent with the existing Connecticut hate crimes law and comparable to the definition of gender identity or expression included in the 14 other jurisdictions to have adopted similar laws.
The Connecticut definition, however, goes further and specifies that a gender-related identity can be shown by providing evidence in various ways, including (1) medical history, (2) care or treatment of the gender-related identity, (3) consistent and uniform assertion of such an identity, or (4) 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. Although the law includes these as examples, they need not be shown in every case and are illustrative and not exclusive. That means that any one of these is sufficient but not necessary to state a claim of discrimination. The statutory list suggests ways that a person’s gender-related identity “can be” shown, not the ways that it must be. Notably, also, the law includes no examples of how a gender-related appearance or behavior, as distinct from a gender identity, may be shown.
So, why was this language included in the bill? Candidly, it was included because notwithstanding the clarity of the definition in the bill as introduced, advocates for it continued to be pressed to answer questions, the kinds of questions we hear everywhere we advocate for trans-inclusive laws. How do I know what a person’s gender identity is? Can it be whatever a person says it is? What if a person is asserting a gender identity for an improper purpose? Some legislators thought it would be helpful to provide an illustrative list of ways that someone might be able to prove to another person what their gender identity is.
When the idea was proposed, those of us who had worked long and hard on the bill thought it was a good idea to say a bit more, right in the text of the bill, about what we mean when we use the term gender identity. We agreed to the amendment and the bill passed (well, it passed after many hours of debate and after having to defeat more than a few hostile amendments which, if passed, would have seriously undermined protections for the community).
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. Who, transgender or not, would want to have to prove their gender identity and, how could anyone ever be made to do it without violating everyone’s dignity, privacy, and inherent self-worth? And, what consistent rule could one ever apply anyway? The rule of accepting that someone is who they say they are — unless they are being insincere or saying who they are for an improper purpose — is well-established in the religious context and provides a nice model for us in the transgender community for passing and living under non-discrimination laws. It is the rule we have now adopted in Connecticut.
There need be no questioning the meaning, history, or intent behind the statutory language. The law is a great one and moves us all forward in our quest for comprehensive LGBTQ protections across this country.
Jennifer L. Levi has been with GLAD since 1998, and has served as lead counsel in a number of precedent setting cases establishing basic rights for transgender people. She is a Professor of Law at Western New England College; she serves on the Legal Committee of the World Professional Association for Transgender Health; she is a founding member of both the Transgender Law & Policy Institute and the Massachusetts Transgender Political Coalition.
Jennifer is one of the primary drafters of the Connecticut transgender non-discrimination law.
12 Comments
The law still seems vague on gender expression which can differ from gender identity, so a butch lesbian can still be discriminated against for wearing mens clothes when the business dress code says a women must wear dresses. Or how about a genderqueer transgender person who is mostly male body, 50/50 male/female gender identity and 30/70 male/female gender expression wishing to go 10/90 gender expression.
I hope you realize there is a big difference between identity and expression. This in my opinion many transsexuals that are able to hide their gender identity and be in the military because their gender expression was not as female expressive as other transgender people. It explains also why some non transsexual transgender people are not able to be in the military because even though they were less cross gender identified, they were very much more cross gender expressive.
So does the law handle a guy expressing as a girl while not identified enough to completely identify as a female?
If it doesn’t, is the law thus excluding part of the transgender/gay community whose expression may differ from their identity?
Deanna
The way I see it is that Connecticut law is finally legitimizing the value of transition. I am one who feels that gender identity and gender expression are two totally different things. The medical diagnosis requirement demonstrates that lawmakers are wanting consistency. We saw this in Maryland, Maine and Connecticut. The two hot points in all of these states were around workplace transition and sex segregated public accommodations. Gender identity brings into play some new territory that other civil or medical rights just simply does not cover, where it comes to segregated public accommodations.
If you read Cathy Brennan’s writings, you will see that it is not a complete war against transsexuals. If anything, she is advocating access to public accommodations for those who have a verified medical need to be there (e.g. following the standards of care).
Myself, I accept law where gender identity and gender expression are separated. Gender identity is a medical issue and is demonstrated by following a standard of care recognized by the medical community. Despite some critics, that does NOT mean gender confirming surgery but someone must be going through a transition process where eligibility for surgery is one possible part. The point is simple, crossdressing men will full sex drives are demanding access to private spaces under the guise of “civil rights” and “equality”. I still see restroom access as more of a public health issue.
Gender expression is the social issue around the dressing and behaving more feminine or more masculine that what is expected of your assigned gender at birth. There is no medical diagnosis element to it.
While I don’t agree with gender identity “and expression” being lumped into a single definition, the Connecticut law is the best written so far. I do feel that the definition goes too far in certain non-controversial issues such as housing and non-segregated public accommodation. This is why I feel the definitions should be separate.
So effeminent gay and straight men, masculine lesbians and straight women who have been beaten up and teased all their lives, been refused jobs and housing, because their innate, unchangeable, gender expression are still considered outcasts and lepers, even by the transsexual community, because they do not fit in with the gender binaries of same gender same expression. Thanks for the clarification! Thanks for the exclusion.
I concur fully with Professor Levi. As I read the new CT law and legislative history, the options offered to prove one’s gender identity apply only in litigation and cannot be imposed on an employee or applicant by an employer. As I write in my recent article, Gender Identity and Expression in the Workplace – A Pragmatic Guide for Lawyers and Human Resource Professionals, available at http://www.acc.com/gender-identity_expanded, at page 32, footnote 68:
“The new June 2011 Connecticut law outlawing discrimination on the basis of gender identity or expression — which covers employment, housing, public accommodations, credit, and other areas — contains an interesting provision that was adopted during a floor debate. The added language provides an illustrative list of ways an employee can prove, during employment discrimination litigation, the employee’s gender identity: ‘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.’ Connecticut Public Act 11-55, §1 (June 14, 2011), available at http://www.cga.ct.gov/asp/cgabillstatus/cgabillstatus.asp?selBillType=Bill&bill_num=6599&which_year=2011&SUBMIT1.x=9&SUBMIT1.y=9&SUBMIT1=Normal and http://www.cga.ct.gov/2011/ACT/PA/2011PA-00055-R00HB-06599-PA.htm. The extensive colloquy during the debate clearly establishes that the purpose of the added language is to provide the Connecticut Commission on Human Rights and Opportunities (CHRO) and the courts guidance with respect to how an employee can prove the employee’s gender identity or expression in the event the employee files a formal discrimination complaint with the CHRO and, after exhaustion of administrative remedies, in court. It was added to the law in order to eliminate the possibility that a ‘flip-flopper’ — someone who on a whim changes gender identity or expression back and forth day after day or week after week ¬— would be covered by the new law. In contrast, an employee who advises an employer that the employee will henceforth present in the gender matching the employee’s gender identity is protected by the law and can, for example, immediately begin using the bathroom corresponding to the employee’s expressed gender identity. See Proceedings of The Connecticut General Assembly: The House of Representatives (May 19, 2011), available at http://www.cga.ct.gov/2011/trn/H/2011HTR00519-R00-TRN.htm.
“The added language is not an authorization for employers to request such evidence from an employee who has come out and begun the process of gender affirmation. Nonetheless, the added language is instructive for employers: an employee going through a gender affirmation normally will be able to easily meet the low threshold set by the added language. Similar to the way Congress told employers, when it passed the ADA Amendments Act of 2008 (ADAAA), to get past the question of whether an employee has a disability and to focus instead on reasonable accommodations, the Connecticut legislature has instructed employers to not question an employee’s good faith coming out in the workplace and to accept the employee in accordance with the employee’s expressed gender identity. See Proceedings of The Connecticut General Assembly: The House of Representatives (May 19, 2011), available at http://www.cga.ct.gov/2011/trn/H/2011HTR00519-R00-TRN.htm.”
Christine
Connecticut already has a anti-discrimination law for sexual orientation, it has been on the books since 1991
Also if you read what Jennifer wrote, “The Connecticut law defines “gender identity or expression” as a person’s gender-related identity, appearance, or behavior, whether or not that identity, appearance, or behavior differs from that traditionally associated with the person’s physiology or assigned sex at birth.” Nowhere does it say anything about only applying only to transgender people. It applies to all people, transgender, bisexual, lesbian, gay or straight. Just like it does in 14 other states.
I know it is wordsmithing, but isn’t that what lawyers and courts live on?
For a gay person or a genderqueer, their gender related identity partially or mostly matches their physiology or assigned sex at birth. But their gender expression is opposite. Their appearance and behavior differ from their gender identity, ie. their appearance is unrelated, I repeat, unrelated to their given identity, and thus can be used to discriminate.
Is this something that will have to be determined in court?
I’m one of the people who has been raising concerns about the wording, although I’ve tried to make no presumptions about motive (since I realized from the beginning that this could have come from someone perfectly well-meaning). Putting aside for the moment that there can be problems obtaining a diagnosis (which is a serious issue itself), on the positive side, I do see a possibility of relaxed requirements on documentation, since where similar policies are applied in Alberta, a utility bill or statement with one’s new name on it is considered sufficient proof. But that is a possibility, and we’ll have to wait to see how strictly law enforcement and security personnel apply it in Connecticut, both now and in the future.
But I do see the potential for serious harm for non-diagnosed and non-transsexual people, in the way “gender identity and expression” are presented as a single characteristic. Gender identity is later defined (and why? Characteristics need to be neutral so that they protect people on all sides of the equation, rather than rule people out of rights inclusion) but not differentiated from gender expression, so I can’t see how the latter will be protected if documentation of a diagnosis becomes an expectation to show one’s gender expression.
To me, that’s a reasonable reading of the law, and we certainly have people lobbying — both from the religious right and from within LGBT circles — to interpret laws as narrowly and as exclusionary as possible due to a perception of the potential for a statistically non-existent harm in washrooms and other womens’ spaces.
Regardless of the intent behind this law, my concern still persists.
The language in the bill is “gender identity or expression,” not “gender identity and expression.” There is apparently a lot of meaning and weight to which conjunction was used in the Connecticut law.
And too, Jennifer Levi is an attorney, and I’m not — I don’t believe you are either, Mercedes. I’m personally going to presume that an attorney who works at the LGBT non-profit GLAD, and specifically works on transgender legislation and issues, has more expertise on gender identity and/or gender expression legislation than you or I do.
And, working at an LGBT non-profit, I don’t believe she’d write a law that would hurt non-transgender women, let alone non-transgender lesbian and bisexual women.
Frankly, it wouldn’t make any sense for an LGBT non-profit specializing in the LGBT related law, with no doubt much of their donor base being non-transgender lesbian and gay people, to write legislation that would harm non-transgender lesbian and bisexual women — or non-transgender gay men, for that matter.
As I said, I don’t doubt Ms. Levi’s sincerity or intent.
What I am concerned about is how it will be practically applied by law enforcement, security personnel, employers and others who police gender on a day-to-day level. I still see the idea that gender identity and expression (even with the use of “or”) are some amorphous single characteristic as being a reasonable reading of the law.
And with all due respect, I’m routinely told that I’m not credentialled or qualified enough to comment, only to see things turn out more or less as I’d thought they would. (For that matter, by many estimations, I’m not a psychiatrist and therefore not qualified to comment on transsexuality, either).
But again, it will be up to time to tell how the practical application will go.
I agree with Mercedes on this.
In terms of concern, the use of this language in other jurisdictions is relevant, especially in light of the reasoning behind such.
Arizona, for example, does not place such importance on the particular conjunction in most situations (most, because this is Arizona, and hey, if there’s a loophole, it’ll be used).
Unless the statute has language that indicates the stated items are examples of proof of identity or expression, I fear, personally, that there will judgments applied that are not in line with the intent of those who wrote the bill.
not through fault of their effort, but because of quirks in the way the law is applied. While in most situations such isn’t going to be all that big a deal, a strong challenge could create an appellate ruling not too dissimilar from the tightening that occurred with rulings of the ADA, conceivably based on those same arguments.
I am, however, grateful for the effort to be reassuring that this demonstrates, and will await some sort of actual test of the law prior to having my bovine’s in public.
I do want to congratulate Ms. Levi on the Ct. law she so ably assisted with. My comments are not to disparage the law or her work, but instead inquiries about how it will be implinmented.
The corporation I work for has an “gender identity or expression” wording in its non-discrimination policy. Just this last week, I was communicating with the Corporate PRIDE Affinity Group leader about the lack of any kind of definition of what was meant by “gender identity or expression” and how it could be interpreted many ways, up to and including aterminating a male that came to work in a dress, but using the mens bathroom, due to being a disruption for being in a dress. I expressed that the corporation needed to have a definition at the corporate level so that local areas did not interpret the policy different between different work sites, as that could cause problems for someone transfering from one location to another. I was told that their were too many items on the LGBT Plate at the corporation and that a description would have to wait.
So Good Show on the Ct. law, and good show for Ms. Levi.
Deanna
There was no link in the initial article to the act. Here’s one:
http://www.cga.ct.gov/2011/SUM/2011SUM00055-R02HB-06599-SUM.htm
I’m not particularly familiar with CT law, but it looks pretty good to me.
The act defines “gender identity or expression” as a person’s gender-related identity, appearance, or behavior, whether or not that identity, appearance, or behavior differs from that traditionally associated with the person’s physiology or assigned sex at birth. The definition specifies that gender-related identity can be shown by providing evidence in various ways, including (1) medical history, (2) care or treatment of the gender-related identity, (3) consistent and uniform assertion of such an identity, or (4) 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.
The main portion of the text prohibits discrimination on the basis of gender identity or expression in a lot of cases. My main concerns are in the following text (emphasized by me):
The act prohibits an employer or employer’s agent, except in the case of a bona fide occupational qualification or need, from refusing to hire or employ someone; barring or discharging someone from employment; or discriminating against someone in pay or in employment terms, conditions, or privileges based on the individual’s gender identity or expression. This prohibition applies to any employer, public or private, that employs three or more people. It applies to all employees except those employed (1) by their parents, spouse, or children, or (2) in domestic service.
So, were I a CT employer, I could discriminate via gender identify or expression legally in the following cases:
1) if they were my child
2) if they were my parent
3) if I were married to them
4) if they were in domestic service
5) If I employ two or fewer people.
6) If I have a bona fide occupational qualification or need.