Tuesday, April 19, 2016

Man? Woman? Transgender Bathroom Bills Discriminate -- Do You Care?


South Carolina State Senator Lee Bright had proposed a transgender bathroom bill that would prevent people from using public bathrooms that do not correspond with their biological sex. Bright said in a recent Greenville News report that “I want to stand with North Carolina … for showing some decency and common sense.” I doubt very seriously if Bright has the same connotations of either “decency” or “common sense” I have been taught.

The senator expounded when asked about the economic fallout from North Carolina’s law that caused PayPal to pull out of a project that would have created 400 jobs in Charlotte:

“Apparently PayPal has shown its support for pedophiles by wanting them to go into bathrooms,” Bright said, according to a recent report in The Greenville News.

Bright viciously stereotyped transgender individuals as pedophiles. This warped judgment is so common of homophobes who worry about sexual organs and their “correct” views of the gay community.

How would such bills make public bathrooms any safer? Are sexual predators likely to look like friendly people or what he likely considers to be “freaks of nature”? I am appalled that many are calling for sexual identification for restrooms and picking up the mantle for blatant discrimination.
Some common knowledge needs to be understood to approach the subject.

Transgender Defined

Psychiatrist John F. Oliven of Columbia University coined the term transgender in his 1965 reference work Sexual Hygiene and Pathology, writing that the term which had previously been used, transsexualism "is misleading; actually, "transgenderism" is meant, because sexuality is not a major factor in primary transvestism."

(John F. Oliven. Sexual Hygiene and Pathology. 1965.)

The term transgender was then popularized with varying definitions by various transgender, transsexual and transvestite people, By the mid-1970s both trans-gender and trans people were in use as umbrella terms and 'transgenderist' was used to describe people who wanted to live cross-gender without sex reassignment surgery. 
(S. Stryker, Transgender. 2004.) 
By 1984, the concept of a "transgender community" had developed, in which transgender was used as an umbrella term. By 1992, the International Conference on Transgender Law and Employment Policy defined transgender as an expansive umbrella term including "transsexuals, transgenderists, cross dressers" and anyone transitioning.

Health-practitioner manuals, professional journalistic style guides, and LGBT advocacy groups advise the adoption by others of the name and pronouns identified by the person in question, including present references to the transgender person's past; many also note that transgender should be used as an adjective, not a noun (for example, "Max is transgender" or "Max is a transgender man", not "Max is a transgender").


So, What Does the Umbrella “Transgender” Label Mean?

Are you looking for a definition that fits the discussion of who should enter whose bathroom? You may find knowing the players is not as easy as you think. Outward appearance, which many assume to reveal sexual identity, can be deceiving. And, in truth, we all know this to be true. But, it's not only judgment based on visual impressions that fail those who judge: Many do not understand gender in its diversity.

People who identify as transgender or transsexual are usually people who are born with typical male or female anatomies but feel as though they’ve been born into the “wrong body.” The American Psychological Association confirms that transgender is an umbrella term for “persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth.”

“Gender identity” refers to a person’s internal sense of being male, female or something else while “gender expression” refers to the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice or body characteristics.

In contrast, people who are transgendered have an internal experience of gender identity that is different from most people.

Then, of course, there are those have “intersex conditions” and anatomies not considered typically male or female. Most people with intersex conditions come to medical attention because “doctors or parents notice something unusual about their bodies.” Today the whole family of children born with a DSD are involved from the beginning, and urology, endocrinology, genetics, social work and psychology experts also work together.

For a child born of indeterminate sex they will undergo number of tests including those involving chromosomes, hormones and internal organs. To further complicate things the test results are not just either male or female, they can be on a sliding scale between the two.
Ultimately the sex chosen for an intersex baby is the one doctors and their family believe they will grow up to identify with best.

Some forms of a Disorder of Sexual Development (DSD) are not obvious at birth because they affect the internal organs and can go undiagnosed for years. That is right – not obvious at birth. One such person with androgen insensitivity syndrome discovered her DSD when she had a hernia operation at age six.

Katie, the girl with the DSD, said, "I look female on the outside, I have a normal female body but instead of having XX chromosomes like a typical female I have XY chromosomes like a typical male."

During her hernia operation, surgeons were surprised to find a partially descended testicle. She also had no ovaries and no womb. Her mother and father, who are both doctors, had been trained at medical school not to tell women if they had this condition "because it would be so devastating to them that they would commit suicide.”

(“Male or female? Babies born on the sliding sex scale.” BBC News October 11, 2011.)

Many people confuse transgender and transsexual people with people with intersex conditions because they see two groups of people who would like to choose their own gender identity and sometimes those choices require hormonal treatments and/or surgery. These are similarities.
It’s also true, albeit rare, that some people who have intersex conditions also decide to change genders at some point in their life, so some people with intersex conditions might also identify themselves as transgender or transsexual.

In spite of these similarities, these two groups should not be and cannot be thought of as one.

(“What's the difference between being transgender or transsexual and having an intersex condition?” Intersex Society of North America. 2016.)

How Does Anyone Determine Sex?
  • To determine the sex of an intersex child doctors try to work out what happened during the baby's development.
  • They check the body's DNA containers, the chromosomes, to see whether the child is genetically female or male.
  • They see if the baby has ovaries or testes, and whether they have a womb or not.
  • They also test the hormones the body is producing and try to determine how the baby's genitals may develop.
  • Test results can be on a scale between male or female.
  • The sex is chosen as the one the doctors and the family believe that they will grow up to identify with best.
  • As children grow through puberty they can develop characteristics of one sex more than another, different to the sex they have been assigned as a baby.
(“Male or female? Babies born on the sliding sex scale.” BBC News October 11, 2011.)

Do you see that determining the sex of a person is much more complicated than simply assigning the identity “male” or “female”? Doctors know this. The public must be aware of it, too. We must educate ourselves and our lawmakers because it is the right thing to do.

So, to me, when Lee Bright, Governor Pat McCrory of North Carolina, and Representative Susan Lynn of Tennessee propose and sign laws banning cities from passing LGBT anti-discrimination ordinances, bar transgender people from using bathrooms that match their gender identity, and allow mental health professionals to refuse to treat LGBT patients the nation's crazed lobbyists have run amuck and are falsely defending their actions in the name of Christianity.

There are more than 100 active bills like this right now, across 22 states. They fall into a handful of categories — some are bathroom bills, some let judges refuse to marry same-sex couples, some let businesses deny services to LGBT people — but they all have the same goal: legalizing discrimination against queer people.

Nine states have active bills relating to this: Illinois (HB 4474), Kansas (SB 513, HB 2737), Kentucky (HB 364), Minnesota (HF 3395, HF 3396, SF 3002), Missouri (HB 1624, SB 720), Mississippi (HB 1258), Oklahoma (HB 2215, HB 3049, SB 1014), South Carolina (SC 1203) and Tennessee (HB 2414, SB 2387, HB 2600, SB 2275).

Jennifer Bendery, White House correspondent and congressional reporter, says that religious conservatives have been working toward this kind of full-blown assault for years. They’ve been test-driving various anti-LGBT bills at local levels, anticipating the Supreme Court’s Obergefell decision on marriage equality and preparing ways to weaken it.

“Specific laws like this that seek to target and marginalize one small segment of the population is nothing less than mean-spirited,” White House press secretary Josh Earnest said Tuesday. “President Obama has talked on a number of occasions about the important progress our country has made with regard to civil rights. This is a good illustration that the fight for civil rights is not over.”

(Jennifer Bendery and Michelangelo Signorile. “Everything You Need To Know About The Wave Of 100+ Anti-LGBT Bills Pending In States.” The Huffington Post. April 17, 2016.)

Enforceable Bathrooms?

Leon Lott, the sheriff of Richland County in South Carolina told state lawmakers that the law in his state would be unenforceable because his officers could not be in the business of inspecting people’s genitals.

“In the 41 years I have been in law enforcement in South Carolina, I have never heard of a transgender person attacking or otherwise bothering someone in a restroom,” Sheriff Lott wrote in a letter to the committee studying the state’s bathroom bill. “This is a non-issue.”

And, already, federal agencies are considering steps they might be required to take because of the discriminatory law. For example, the Department of Education, which gives North Carolina more than $4 billion annually, may withhold some funding because the law violates Title IX, a civil rights law.

The federal government has taken the position in individual cases that barring students from using restrooms based on their gender identity is a violation of their right to equal treatment. The Department of Education has drafted guidance for schools that would give administrators a clear national standard. 

(Editorial Board. “Transgender Bathroom Hysteria, Cont'd. The New York Times. April 18, 2016.)

My Take

I believe this entry clearly shows how supporters of “bathroom laws” do nothing to make restrooms safer. Human rights and equality demand our utmost attention. The First Amendment New signs of bigotry continue to raise their ugly heads in the name of society-saving religions and Donald Trump phony virtues.

How will those charged with enforcing the law determine if someone is legally using a restroom? Consider caregivers who need to help opposite-gender spouses use the restroom when they’re in public. Besides, distinguishing sex is far more complicated and ambiguous than simple thinkers believe.

Recently, the International Association of Athletic Federations encountered Caster Semenya, a South African female runner whose body naturally produced male levels of the hormone testosterone while she trained for a gold medal 800 meters in last summer's world championships. The organization consulted gynecologists, geneticists, endocrinologists and psychologists and could not come up with a single definitive standard for who should qualify to compete as a woman. They are still looking.

(Greg Kesich. “Bathrooms a big deal in transgender rules debate.”Portland Press Herald.      March 10, 2010.)

And, I'm sure a lot of conservatives are going to pound the point that the Constitution doesn't prohibit such discrimination.

In fact, the National Review reported in 2011 that Supreme Court Justice Antonin Scalia gave an interview to the California Lawyer in which he said that the Constitution does not prohibit sex discrimination against women and gays. That’s up to the legislatures, he said.

The question posed to Scalia was this: “In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?”

Here is Judge Scalia's answer:

“Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

“You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

Well, Judge Scalia makes fine points, but how does that answer address the national problem of facing the reality that discrimination against gays is simply wrong? Are some states to be left alone to discriminate simply because they wish to impose standards that do not serve our national conscience?

There is no rational basis for such inequality. Even the fabric of the law-- and that includes the vaulted Constitution -- can become weak and dangerously unstable over time. A Constitutional Amendment should guarantee freedom from sexual discrimination. We know that all citizens in a democracy must be equal or none of us are free. America must live up to changing realizations of righteous liberty. I shudder to think of the alternative.

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