Misgendering

When people want to complain about “Political Correctness gone mad” they name Misgendering. It frightens me when they say Democrats or other relatively Left parties should drop PC, and pick on trans folk, as if we had lost the Left the elections, and throwing us under the bus was the route back to being in contention. Constantly complaining about dopey things, from pronouns that “misgender” to whether Ann Coulter should be allowed to speak at Berkeley … has become a hallmark of Team Blue over the last decade. It’s no small part of the reason Red America threw up their hands, looking for any alternative to push back against the inanity wrote Matt Labash in the NYT. Labash is a Republican, but Democrats say this sort of thing too.

This gets wearing. The archetypal PC idiocy is treating trans folk with courtesy. Possibly the complainers felt even gay marriage was off limits; too many people support it, no-one is particularly attacking it. They may in the future, but not now. But some people take pride in misgendering- calling me “he” and feeling self-righteous about it. I slip up myself, so don’t object to people making mistakes, only to people who do it intentionally, or do not see why it is offensive, like Labash here- I think he finds the complaints dopey, not the “mistakes”.

It matters to us. We transition whether or not the circumstances are propitious. We fail to thrive, or get murdered, where they are not. The callous answer is something like “Well, truth matters to me, you’re really [or not] a man”- but it is an excuse to be callous, a preference for being nasty to us, a way of finding someone to look down on. Some prefer the liberating chance to be cruel over the chafing requirement to be courteous.

They have such an elegant way of expressing it! We named the microaggression “misgendering”, one simple word for when someone uses pronouns as if I were a man. That means when the Right wants to allude to trans folk, they merely need quote “misgendering”, in scare quotes because they deny it is a real word, though it usefully names a phenomenon and has wide currency: it is in the Oxford dictionaries. And some Left-wing writers say the Left should abandon the more extreme political correctness, and the example they choose is Misgendering.

They might choose abortion in the US, and write of “reaching out to pro-life Democrats”. This article in NYT points out abortion is an economic issue. Poorer women have more unwanted pregnancies, where they cannot afford a child, then where they could not continue in work or education fall further into poverty. On that basis, misgendering is economic too: we will transition even though in an atmosphere of hostility will lose our jobs.

Inequality matters. The inequality of badly paid workers with insecure jobs matters, and I want them to vote Left; and the Right makes them angry, then diverts the anger against out-groups, such as immigrants or LGBT folk. The Right-wing siren song is that nothing can be done about the inequality, but at least you can feel better if you can express anger against an out-group. They want to blame immigrants, then call third generation British Asians “immigrants”, then foment hatred for us. First they come for the immigrants, then the queers. Who’s next? Might it be you?

Trans discrimination

Discrimination because a person is trans is gender stereotyping. It is based on the thought that a man should not behave in a particular way. Here is Glenn v Brumby: Sewell Brumby sacked Elizabeth Glenn from her job in the Georgia Office of Legislative Counsel because of prejudice, claiming Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable. Previously, he had said that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and that a male in women’s clothing is “unnatural.”

It is striking to see someone state their disgust so clearly. Brumby was open about this in his evidence: he testified at his deposition that he fired Glenn because he considered it “inappropriate” for her to appear at work dressed as a woman and that he found it “unsettling” and “unnatural” that Glenn would appear wearing women’s clothing. In the UK, employers would probably find some pretext for dismissal, knowing that such prejudice was frowned on. Under the particular law pleaded, Brumby’s defence could succeed if he had an “exceedingly persuasive justification… that there was a sufficiently important governmental interest for his discriminatory conduct”. He said women in the office might raise court action because they did not want to share a restroom with Ms Glenn, but in fact their office had only single occupancy restrooms.

The tradition of romantic paternalism puts women not on a pedestal, but in a cage. The courts seem to think there is a possibility that “reasoned analysis” may justify gender differences, but government acts based on gender stereotypes- which presume that men and women’s appearance and behavior will be determined by their sex- must be subjected to heightened scrutiny because they embody “the very stereotype the law condemns.” So there will be debate in court, but the discriminator must show a real reason, not an assumption based on a stereotype. Including the stereotype that men should not wear skirts.

So, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination. That would include any trans person, not just someone intending to transition.

In the Equality Act 2010, Scots and English law made a fundamental difference between discriminating on the ground of gender reassignment and on the ground of sex. The Act refers to “transsexual persons”. The union Unison’s website is confused: it translates this to “transgender” which it defines as those whose gender identity or expression doesn’t conform to the sex they were assigned at birth which could include non-binary people, or cross-dressers who want to dress female at work occasionally, but still refers to the laws on gender reassignment. To be protected, you have to have decided to live permanently as the other sex.

Could we use the protected characteristic of sex, and allege any objection to a man in women’s clothes was sex discrimination? Unfortunately, the Court of Appeal says that different treatment is lawful: to be unlawful, treatment must be “less favourable”. So a man can be required to wear a collar and tie, and have short hair, and a woman required to wear a skirt, if they come into contact with the public who might judge them on their appearance, and judge the employer because of them. You have to be smartly dressed because you meet the public. An Employment Appeal Tribunal said, there were in force rules restricting wearing apparel and governing appearance which applied to men and also applied to women, although obviously, women and men being different, the rules in the two cases were not the same. A recent case when women were not allowed unshaven legs, even when wearing tights, might be less favourable as more onerous, but you could not be certain.

Glenn v Brumby.

Transgender Equality- the Government’s response

The Government says Equality is very important to us- but limits what it will do to achieve it. Often, they do the minimum required under international obligations, which is why leaving the EU is so troubling.

The minister writes, A commitment to equality is at the heart of this Government and is essential to building a strong economy and a fair society. We want to build a society that celebrates and benefits from the talents of everyone; ensuring fairness, protecting the most vulnerable, and prioritising equal opportunities for all. We know that transgender people face continuing transphobia, increased mental health issues, discrimination in the provision of public and private services and bullying in our schools. That is why I made transgender equality a key priority for my department after the General Election last year. 

Yet. The committee recommended that discrimination against trans people be made unlawful. At the moment, I am protected because I have transitioned to female, and anyone who decides to do so is protected. The committee wanted that extended to anyone with a gender identity not male or female or as assigned at birth: those who are transsexual but feel unable to transition, as well as those with other identities. The Government responds, The provision of a protected characteristic of “gender reassignment” in the Act is fully compliant with our obligations under the Equal Treatment Directive (2006/54/EC). They do the minimum required. They say that others might argue they are falsely perceived by the discriminator to intend to transition.

They refer to their guidance to employers on recruitment and retention of transgender staff. It correctly states that When people feel valued by their employer for the contribution they can make to the organisation as an individual, regardless of their personal (or protected) characteristics, they are more likely to:

  • Feel engaged and enthusiastic;
  • Go the extra mile and expend discretionary effort;
  • Have better attendance;
  • Be a better team member;
  • Stay longer and offer loyalty; and
  • Talk about their employer in positive terms.

However, that guidance then defines “gender reassignment”, showing that anything other is not protected.

Similarly, the Committee recommended that there be no exceptions. The rules that discrimination against transsexual people is legal when there is a “Genuine Occupational Requirement” that a worker be cis muddies the waters. It makes certain employers more likely to discriminate, and more likely to defend a court action on discrimination. The Government is keen to ensure that that law in this area operates fairly and is not abused, therefore we are keen to receive further representations and evidence on the availability and use of the exceptions in the Equality Act 2010 from all affected parties to take into account for future policy discussions. That is, they will do nothing about this yet.

Charges for using Employment Tribunals, the abolition of the discrimination questionnaire which could obtain evidence of discrimination, the greater likelihood of costs being awarded against claimants who lose and the cutting of the Equality and Human Rights Commission have all made equality law less valuable, because it is more difficult to enforce.

The Response (pdf)
Guidance on employment of transgender staff (pdf).

Transgender Equality III

Should a spouse be able to insist that a trans person dissolve their marriage?

The spousal veto allows a spouse to withhold consent to gender recognition, until the marriage or civil partnership is dissolved. The spouse might want the marriage dissolved; but if the trans person takes steps to dissolve it, the trans person may feel responsible for the break. Both parties are responsible, when a marriage ends- though neither may be guilty, as people grow apart- but people commit to a marriage, and the symbol of who breaks it matters. And while financial and other matters are sorted, until the marriage is dissolved, the trans person’s gender is not recognised.

I might not want to take the action to break the marriage- it would be admitting it was my fault, because of my transition that it ended- though the refusal to recognise my gender might be the Wrong which motivated me to end it, and so ending it would be empowering.

In the Parliamentary Committee, the Gender Equality Office evidence was that straight and gay marriage are different. Some people marry a person, some a man or a woman. Some couples marrying do not know the other, or themselves- it is easy for a middle aged woman to say that, with my hard-won self-knowledge. GIRES put it clearly: Trans people are the only group that can have their civil rights delayed by another. Dissolve the marriage after gender recognition, if you want. Why would that be so hard?

A domestic violence charity said, The spousal veto is extremely concerning and potentially dangerous for trans people who are experiencing domestic abuse. It is known that abusers will commonly try and prevent a trans partner from transitioning, and trans people may experience honour-based violence in response to their wish to transition. Abusive partners will typically be highly controlling and have a
sense of entitlement. The spousal veto gives abusive partners a tool to foster the sense that they have ownership and authority over their partner’s body and identity.

The committee decided that marriage is a legal contract which cannot be changed without the consent of both parties, and recommended that the government should find other ways of addressing the problem where an abusive  spouse used the power to withhold consent abusively.

Currently, the age limit for gender recognition is 18. Sweden is going to move to a 15-and-over self-declaration, and for 12-to-15 it is going to be with parental consent; and in Norway a similar procedure, but from the age of seven, will exist. There are over a thousand children and young people transitioning, developing important networks of peer-support and enjoying formative experiences in their preferred gender, so overcoming one radical feminist objection, that we are socialised differently.

The committee recommend that those 16 and over should have the gender they choose recognised. They fear possible risks if younger children, even with parental support, could change gender, and believe the Government should further consider the possible risks and benefits.

Degas, after the bath

Transgender Equality II

Trans women may be excluded from women-only services. This is only lawful if it can be justified- “a proportionate means of achieving a legitimate aim” in the jargon- but may deter vulnerable trans women from trying to access such services at all, because they fear exclusion. The Women and Equalities Committee considered this.

Women Analysing Policy on Women said, There are situations such as women-only domestic and sexual violence services where vulnerable women surviving in crisis find it very difficult to feel safe. Some of these women may feel unable to access services provided by or offered jointly to all women including transwomen; this produces a clash with the rights of transwomen to be treated exactly the same as other women. It is strange that WAPOW has no website. Here is their evidence to the Committee, which perhaps is their whole purpose. Discriminators seek to hide their discrimination. Note the sweetness of the language, referring to us as “women”, though I like a space in “trans women”. The whole evidence shows their determination to exclude us from all women only services, claiming that otherwise men would lie that their gender identity was female, to gain access to women’s services, and could not be excluded.

However they admit that Many women only services welcome transwomen. People who do not discriminate have no problem.Women’s Aid said, Women’s Aid is committed to ensuring that transgender people are treated with respect and do not experience discrimination and/or harassment on the basis of their gender identity. All they need do is explain, and work to support those vulnerable women who actually object, rather than claiming some might. And treat us according to what we actually do, rather than what they fear we could, or what some cross-dressing bogeyman did years ago in another continent.

WAPOW propose separate services for us, which is never going to happen. There is not the funding for women’s services as it is, leave alone for trans women.

Here is a debate from 2010 on removing the exclusion. Barrister Claire McCann said the explanatory notes to the Act were too categorical, failing to show exclusion could be proportionate or necessary.

Evidence showed the Act now creates passing privilege: we must all fear not passing. Discriminators might find people they suspect of being trans, and question them intrusively about their gender history, breaching their human right to privacy.

What of our employment? Women’s Aid, claiming a “genuine occupational requirement”, will not employ trans women. This policy is under review. Yet Miridul Wadhwa has worked in the violence against women sector since 2005 without any problem.

The committee propose forbidding employers and service providers from excluding trans people with a gender recognition certificate. But they consider that those without should still be excluded simply for being trans, rather than for what we do, if the discriminator claims this is proportionate.

Without a GRC, I would be terrified of going to court, or of being excluded. I would simply not access services.

Degas, breakfast after the bath

Transgender Equality

Now, I am protected by British discrimination law because I sought Gender Reassignment: being assigned male at birth, I decided permanently to transition to female. British MPs want to extend that protection to all gender identities and none.

Trans people are protected as soon as they make that decision, but it is the decision to change physiological or other attributes of sex. Generally, people think that means The Operation. The Women and Equalities Committee reporting on Transgender Equality say this is outdated and misleading, and the protected characteristic, the thing which makes bad people discriminate and the law protect us should be “gender identity”. This means that genderqueer people would be protected. This does not go as far as New York, where all variant gender expression is protected.

Don’t hold your breath. In 2011 the Government Equalities Office published Advancing Transgender equality: a plan for action. The committee finds this is “largely unimplemented”. “Within six months” it says the Government must draw up a balance sheet of the previous transgender action plan, confirm those actions which have been completed and agree a new strategy to tackle those issues which remain unaddressed. It must say who is responsible: but there is no time-scale for implementation, five years on. And there must be a wholesale review of issues facing non-binary and non-gendered people– a review, before any agreement on action.

The International Commission of Jurists Yogyakarta principles, and the Council of Europe resolution 2048, call for a universal human right to define your own gender- male, female or anything else, and to have this recognised. We should have access to medical treatment, no diagnosis of mental illness, and recognition with such surgery or hormone alteration, or none, as we deem appropriate.

Right now, what are those “other attributes of sex”? The committee says it is a misapprehension that you need to want genital surgery, and quote, from the explanatory notes to the Equality Act, the example of someone who transitions without any medical intervention claiming he is still protected. How you present is therefore an attribute.

Non-binary people are not protected. The committee obtained a legal opinion saying that some non-binary people would be protected, as the employer discriminates because it “perceives”, or imagines, that the person intends transition. However, if the person came out as non-binary rather than transsexual, they would no longer be protected as the employer would not have that erroneous belief. And, where employers are careful not to appear to discriminate, proof of an erroneous belief would be difficult.

Caroline Dinenage, the Minister for Women and Equalities, said that the case for non-binary people had been considered when the Equality Act was debated, only five years before, but that she would consider amendment “if a case were made”. And the changes would only affect those who chose a non-binary definition of their gender.

The committee seems to imagine it is considering a small number of people who transition and a smaller number who choose to express a non-binary gender identity; rather than everyone, for everyone is constrained by gendered expectations.

Degas, breakfast after the bath

Gender Identity Discrimination in New York City

The New York City legislation on gender identity discrimination is exemplary. Here is the guidance from the NYC Commission on Human Rights.

Breitbart, a Poe’s Law website, claimed that NYC Will Fine You $250,000 For ‘Misgendering’ A Transsexual. Perhaps the author does not understand the concept of a maximum penalty. Note the scare quotes around misgendering: the arrogant fool thinks he knows my gender better than I do. They had over 3000 comments, which may be more than the number of trans women in New York; but they do not see how liberating this law is.

Discrimination is forbidden in employment, housing and “public accommodations”, that is, facilities used by the public, such as retail stores, rental establishments, educational institutions, recreational facilities and service centres. Gender is defined as one’s “actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

Whereas in Britain only those who intend to transition permanently are protected, in NYC all people are protected. Discrimination is forbidden on the basis of gender expression: so everyone can express ourselves in any way, and discrimination may be punished. Conventional gender expression is abolished, so a restaurant cannot require that men wear ties.

The maximum penalty is $125,000 for a violation, and $250,000 for a violation that is wilful, wanton or malicious. The amount of the penalty is affected by
* The severity of the particular violation;
* The existence of previous or subsequent violations;
* The employer’s size, considering both the total number of employees and its revenue; and
* The employer’s actual or constructive knowledge of the NYCHRL.

Prohibited discrimination has occurred whenever there is disparate treatment of an individual on account of gender. Harassment occurs in a culture or atmosphere of sex stereotyping, degradation, humiliation, bias, or objectification. Misgendering is harassment, and where an employee chooses a gender-neutral pronoun such as “zie”, the employer should use it. We can choose our names, without any formal, legal name change.

We can use single-sex facilities consistent with our gender. A transgender woman may use a woman’s shelter. We cannot be required to prove our gender: our own self-definition is enough. Barring us on the supposition that we will make others uncomfortable is unlawful: so we can be excluded for our acts, but not because of others’ fears.

An individual’s assessment of their own safety should be a primary consideration. So we should be allowed to use a bathroom for the sex assigned at birth if we want.

Sex stereotyping is unlawful, and that liberates everyone. Everyone can express gender as they wish. Men may wear jewellery. Expectations of how an individual represents or communicates gender to others, such as behavior, clothing, hairstyle, activities, voice, mannerisms, or body characteristics may not be enforced.

Employee health insurance must include transgender care. Employers should accommodate our needs around transition, such as time off for treatment.

Any action likely to deter individuals from exercising their rights, or assisting another to exercise rights, is unlawful retaliation.

This law is a step to abolishing patriarchy. All people may express gender as they wish. Gender ceases to be norms and expectations to curb people, and becomes a palette of infinite self-expression, creativity and freedom.

I am grateful to Breitbart for drawing my attention to this. Consider what the enemies fear, and rejoice!

John Martin, the Plains of Heaven featured

Human Rights for Trans people

Being a post-operative transsexual person, though not pre-op or non-op, is a “protected status” within the meaning of the European Convention on Human Rights, article 14. This is the result of Carpenter v Secretary of State for Justice, in which a post-operative trans woman challenged the requirement to inform the Gender Recognition Panel of the details of her surgery. I found the case on Halsbury’s Law Exchange. What does protected status mean?

Article 14 provides, The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This means that the State must not discriminate against a person because s/he is post-op trans, in enforcing rights under the Convention. Cases cannot be pleaded against other parties. A case must be pleaded about another right; but even if that case is not established,  it opens the door to the trans person pleading discrimination.

I am unclear as to what that might mean. The Human Rights Act remains essential for British freedoms, even for “British values”; I feel I am more likely to need the protection of other articles than article 14 as a post-operative trans woman.

Though post-operative, I resent this shibboleth of The Operation as the sine qua non of any protection under any law. Post-operative trans folk are a tiny minority of trans folk. I am more likely to be treated badly because I am trans, rather than because I am specifically post-op. Though as it is difficult to discover a person’s operation status, or even their desire permanently to express themselves in their true sex, other trans people may be protected because would-be discriminators fear legal action.

I doubt the British state will treat a post-operative trans woman differently because she is post-op. If they did, they have a discretion to justify why different treatment because of my operation is appropriate.

Monet, Sur la plage à Trouville

Quaker weddings

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/d/d7/Henri_de_Toulouse-Lautrec_028.jpgMy friend is delighted by the new Marriage Act, as a symbol for equality and for the change it will make in her life: she will marry her life-partner. She wants to marry in the Quaker meeting, and of course we are delighted: she attends our meeting. She has the idea that other couples will want a religious wedding, and as most denominations do not offer them, at present, she would like us to offer religious marriage to people who are not members or even attenders. There are problems with that.

Other denominations may not celebrate marriages: the Anglicans are banned by statute, the Methodists prohibited the blessing of same sex unions in 2006; the Baptists say that gay people should not suffer discrimination but may not extend this to marriage. That leaves Unitarians and Quakers.

The Marriage Act 1949 governs marriage in the Meeting: s47(1) No person who is not a member of the Society of Friends shall be married according to the usages of that Society unless he or she is authorised to be so married under or in pursuance of a general rule of the said Society in England. Each of the couple must declare that each of them is either a member of the Society of Friends or is in profession with or of the persuasion of that Society, or the Registrar must declare that there is such a rule.

So we need to amend our own rules, before we can offer gay marriages to people who are not attenders.

Would such a rule be discriminatory? Discrimination is prohibited on the ground of sexual orientation, including “orientation towards persons of the opposite sex”: Equality Act 2010 s12. By s13, it would be direct discrimination: treating a straight couple less favourably- refusing to marry them- because of their orientation.

Does that rule apply to providing marriages? A person concerned with the provision of a service to the public must not discriminate (s29). So if we had a rule saying that gay couples with no real link to the Society could get married, but not straight couples, this would be unlawful. A straight couple refused a wedding in a Quaker meeting could claim damages in the county court. It is possible that those damages might be minimal: I do not have the research facilities to assess that.

Quakers have a distinguished history of disobeying the law when we consider we are following the leadings of the Holy Spirit. We would be offering a service to gay people which only the Unitarians would, apart from us. The Unitarians seem keen to marry non-members, and without our legal difficulties.

Of course we could open our marriage procedure completely, to straights as well. Perhaps we would have no take-up. But- the couple marrying stand to speak the vow in the way that we stand to give ministry: we feel moved by the Spirit. In other churches, the couple speak their own will. Having non-members marry in the Quaker meeting would change the nature of that marriage.

Beautiful woman

I hope the Manchester Evening News will tolerate my copying their photo, because it is the honest photo which others failed to print.

CBeebies presenter Cerrie Burnell

Cerrie Burnell is beautiful. She looks younger than her 32 years, which is a good thing for a presenter of telly for 4-6 year olds. She was born with her right arm ending just below the vestigial elbow. When she started presenting CBeebies, there were complaints that a disabled woman should not be doing this job. How do you explain to children that someone has no arm? Disabled people should not be seen or heard.

Standard issue lesson: celebrate people for who they are, what they can do, rather than judging them for what they cannot. What they cannot do is not useful information. But have a look at this Sky article. While it rightly gives the answers from disability charities, the BBC and Ms Burnell herself, the main picture it prints is head and shoulders, so that its more delicate readers will not see the Arm. It prints the above picture, lower down the page, and much smaller.

I suppose it helps that she is very pretty. These presenters tend to be pretty. More than one difficulty to overcome in getting this job might have been too much. We are only making the progress we are making. So- is it not wonderful that she is so visible? Even if that is not her intent, she widens public acceptance of difference.

That is what I want. Simply to be, without that self-consciousness, the internal nagging voice saying “What will people think?” which always misjudges what they actually think.