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.