By Beth Elliott : A rebuttal to the Brennan-Hungerford submission to the United Nations Entity for Gender Equality and the Empowerment of Women.
13 August 2011
VIA FACSIMILE AND E-MAIL
Human Rights Section
2 United Nations Plaza, DC2 12th Floor
New York, NY 10017
Re: CSW Communications Procedure
1 August 2011 Submission of Cathy Brennan and Elizabeth Hungerford
Allegations regarding United States gender identity anti-discrimination statutes
I write in regard to the CSW Communications Procedure submission of 1 August by Cathy Brennan and Elizabeth Hungerford alleging that gender identity anti-discrimination statutes in the United States threaten to violate women’s rights. Specifically, I write in response and rebuttal to those allegations.
Ms. Brennan and Ms. Hungerford’s submission is not an adequate submission. It does not at all comply with the Communications Procedure Guidelines for identification and documentation of actual incidents of human rights violations, and should be rejected on those grounds alone.
Moreover, the Brennan-Hungerford submission is inaccurate and misleading, and an abuse of both national judicial procedure and global procedures for effective petition for redress of actual rights violations. To wit:
1. Ms. Brennan and Ms. Hungerford are not reporting actual harm, but requesting global action based on a mere hypothesis: that male-bodied people claiming to be women on the basis of self-perceived gender identity could pose physical and emotional threats to women in sex-segregated public facilities such as bathhouses and restroom. They neglect to acknowledge that there means in place to prevent and/or punish this.
a. With regards to bathhouses and other venues in which public nudity is usual and expected, remedies are already available at the local and state level: judicial interpretation of the statutes cited in the submission, “under color of” criminal sentencing enhancements of the kind designed as a deterrent measure, and (already existing) common-sense accommodations to legitimate sensibilities.
b. With regards to restrooms, Brennan and Hungerford have failed to avail themselves and the potential victims for whom they claim to advocate of the generous U.S. judicial remedies for “hostile environment sexual harassment.” The hypothetical harm from failure to police restroom users for body-socially presented gender congruence likely does not rise to the level of actionable hostile environment sexual harassment.
2. By claiming the potential harm is related to women’s “reproductive vulnerability,” Brennan and Hungerford carve out an artificial and politically defined subgroup of potential victims from the larger population of actual potential victims. Specifically, they limit the potential human rights victims to that class of women who are cissexual women of reproductive age with healthy reproductive tracts, and state the potential harm is pregnancy resulting from rape when it might be as likely to be forced oral copulation or other non-reproductive sexual assault.
3. Brennan and Hungerford cite no case law that interprets the state statutes they wish preempted by supranational means, and present hypothetical controversies that are not ripe for U.S. appellate review, much less international review. Thus, they present no demonstrable failures to protect human rights which might be appropriate for investigation by a global body.
For these reasons, upon which I shall expand below, I respectfully request that Ms. Brennan and Ms. Hungerford’s submission be rejected for insufficiency as a communication to the Commission, and for failure to state an actual controversy or to give credible evidence of actual or likely human rights violations related to the statutes of which they complain.
My qualifications for addressing the Commission for the Status of Women on this matter are as follows:
Daughters of Bilitis (the first lesbian rights organization, founded in 1955) (“DOB”), Vice President, San Francisco Chapter, 1971-72. Representing DOB (at the request of co-founder Del Martin), founding member of the Alice B. Toklas Memorial Democratic Club, the first gay/ lesbian political party club in the U.S.; represented Alice at the California Council of Democratic Clubs 1973 convention, Fresno, California. Alternate delegate for Representative Shirley Chisholm, California Democratic Party presidential primary election, June 1972. Community-elected member of the Board of Directors of the California Committee for Sexual Law reform, 1972-75 (successfully lobbied for repeal of California state statutes outlawing most forms of sexual behavior between consenting adults). Successful arbitration determining that sex-reassignment surgery (“SRS”) was a physically necessary, non-cosmetic treatment for gender dysphoria syndrome, over the objections of a health insurer, from the Santa Clara County (California) Medical Society, with representation by attorney Sarita Waite, 1975. Workshop presentation on actual versus propagandized experience with HIV transmission among Women who have Sex with Women, National Organization for Women annual convention, San Francisco, California 1990. Author, “Mirrors – Portrait of a Lesbian Transsexual” (as myself and as the pseudonymous Geri Nettick), 1995 (Spectrum Press), 1996 (Rhinoceros Books), and 2011 edition with new material (CreateSpace, with distribution through CreateSpace and Amazon). Numerous publication credits with gay, lesbian and transsexual rights-oriented publications, including a weekly column for the San Francisco Bay Area Reporter from 1995-98.
Deficiencies of the Brennan-Hungerford Submission:
1. Potential versus actual harm
a. Bathing and dressing facilities: remedies already in place; actual harm not likely
Brennan and Hungerford claim an assertion of female gender identity that would entitle a person making such an assertion to use women’s bathing facilities though not female-bodied “does not require any objective proof.” While the possibility of legal sanction for access by such persons is highly doubtful (as will be discussed shortly), this assertion of no requirement of proof of identity is inaccurate. Brennan and Hungerford themselves cite, in their footnote xviii, Connecticut General Statutes § 46a-63 (effective October 1, 2011), which requires a demonstration of “gender-related identity … shown by evidence including, but not limited to, medical history, care or treatment of the gender-related identity … or any other evidence that the gender-related identity is … not being asserted for an improper purpose.”
Further, the gender identity-inclusive Employment Non-Discrimination Act (“ENDA”) introduced into the current session of the U.S. Congress contains the following provision:
“Section 8(a)(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.”
Passage and enactment of this Act would make the Brennan-Hungerford submission moot.
As a practical matter, sexual assault or sexual harassment committed in a bathroom or dressing facility would be prima facie evidence that a body-discordant claim of gender identity made to access such facility was fraudulent. Perpetration of a fraud in order to commit a crime is already itself a crime (and is actionable in a civil court). Were this not enough to deter predators fraudulently claiming to be transgender to seek access to these facilities, the common legislative practice of enacting sentencing enhancements as a further deterrent and preventive measure. These mechanisms already protect women’s civil right to female bodied-only bathing and dressing facilities.
Meanwhile, there is already a history of these concerns being addressed both governmentally and privately.
In the 1960s, a project of the San Francisco Police Department’s Community
Relations Unit, the Center for Special Problems, created the first form of evidence of “medical history, care or treatment of the gender-related identity.” It was a card, signed by a physician, which evidenced such care as a defense against arrest for impersonation, and a request for considerate treatment in case of arrest on other grounds. Similar documentation is routinely provided gender clients by physicians and psychologists in order for those clients to arrange their life affairs so they can live in the chosen gender prior to SRS, per established medical care guidelines.
There are also instances of bathhouse privacy for female-bodied women being protected by private arrangements. By a voluntary agreement in 2007, transgender activists acting in coordination with the Lesbian Avengers dropped plans to file a complaint with the San Francisco Human Rights Commission against Osento, a small Japanese-style bath and sauna establishment for women where public nudity was perforce the rule. Osento had a “trans-inclusive” policy in that it welcomed for patronage female-bodied women regardless of whether born so or made so by reconstructive surgery. The potential complainants wanted access on the grounds of an asserted identity as a woman, but eventually relented and accepted the inclusionary policy in place. (I had prepared, and presented to the owner of Osento, an amicus brief on her behalf that I was willing to file with the Human Rights Commission should it accept a complaint.)
Brennan and Hungerford have not provided this Commission with any instances of findings of discrimination against any establishment barring male-bodied individuals from women’s facilities where public nudity necessarily is the customary environment. U.S. jurisprudence makes such a finding extremely unlikely. The standards for adjudicating a claim of disparate treatment discrimination are the burden (of proof)-shifting requirements outline in the Supreme Court employment law decision McDonnell Douglas v. Green, 411 U.S. 792 (1973). Upon the presentation of facts adequate to support a claim of discrimination, the burden of proof shifts to the party accused of unlawful discrimination. Such party may rebut the claim by articulating a legitimate, non-discriminatory reason for the allegedly discriminatory act. Upon an acceptable rebuttal, the burden shifts back to the complainant to prove that this reason is merely a pretext for behavior with a discriminatory motive.
The privacy and comfort needs underlying single-sex bathing and dressing facilities (meaning same genital configuration and not same gender identity) are so clearly understandable to reasonable and prudent persons (“reasonable and prudent person” being another standard concept in U.S. jurisprudence) that the likelihood of a court ordering access to women’s bathing and dressing facilities by male-bodied persons is negligible. (And, should ENDA be enacted, no such order would be possible.) The potential harm from anti-discrimination laws that Brennan and Hungerford claim requires Commission investigation has neither come to pass, nor is likely to come to pass.
For these reasons, among others, Brennan and Hungerford should withdraw their submission or, alternatively, this Commission should reject it.
b. Restrooms: remedies already in place; actual harm not likely
As regards restroom use, the legal issues are not the same as for bathing and dressing venues. Restrooms for women customarily have toilets (of whatever kind) in individual stalls that prevent involuntary viewing and inadvertent exposure of genitals. There is available, under U.S. jurisprudence, a remedy for “hostile environment sex discrimination” relating to sexual harassment (which constitutes sex discrimination in employment legal actions). To paraphrase the standards set out in the Supreme Court decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 47 (1986), a person taking legal action for alleged hostile environment sex discrimination must be a member of a protected group (such as women), and subject to and adversely affected by harassment based on her being a member of the protected group. The harassment must be so severe and pervasive as to affect the victim’s ability to make use of the facilities in question (in Meritor and its progeny, to be employed in that workplace). Those responsible for keeping the environment harassment- and discrimination-free are legally liable if they knew or should have known of the harassment but failed to take action to stop or prevent it.
Brennan and Hungerford appear to suggest that cross-body configuration restroom use justified by gender identity anti-discrimination statutes would constitute hostile environment sex discrimination. For this actually to be the case, however, there is a further legal standard that must be met, per the Supreme Court decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The objectionable environment “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so.” A reasonable and prudent person can certainly find objectionable and unreasonable women’s restroom use by casual or “lifestyle” crossdressers, and especially by opportunistic others as a pretext for voyeurism or worse. The likelihood of facility management being unresponsive to complaints about such use is slight, given the potential for legal liability in the case of harm and the great potential for loss of patronage in the case of offense.
In the case of cross-body configuration restroom use by (full-time) transgender individuals, and especially by transgender and pre-operative transsexual individuals with documentation of appropriately supervised gender treatment, there is a serious question of whether their use of a toilet in an enclosed stall in a women’s restroom, and washing and grooming in its common area, would create an actual hostile environment. It is doubtful such usage creates an environment that rises anywhere near the standards for judicial consideration established in Meritor and Faragher. In this regard, Brennan and Hungerford fail to document either actual harm, or a likelihood of actual harm that might be excused or enabled by gender identity anti-discrimination statutes.
There is, further, a history of effective private arrangements that have made other spaces non-threatening for female-bodied women.
In 1982, a participant in a women’s “rap group” (discussion group) at the San Francisco Bisexual Center complained of participation by a male-bodied individual generally accepted in that community as a woman, based on her living full-time as a woman and her individual reputation. An agreement was made at that instance that the matter could be addressed at the next Center Board meeting. At that meeting, the Board adopted a policy that the women’s rap groups could be attended by anyone living consistently as a woman full-time and intending to continue to do so. The Board rejected a request by a cross-dresser to be allowed to attend on the days on which he “felt like a woman.”
In the 1990s, the Power Surge alternative sexuality conference for women in Seattle, Washington (held twice) made the daytime workshops accessible to all women on the basis of gender identity while restricting optional night-time “play” events at which nudity was likely to occur to the female-bodied (in this case, not in possession of a physical penis).
For these reasons, among others, Brennan and Hungerford should withdraw their submission or, alternatively, this Commission should reject it.
2. Relating the potential harm to reproductive capability denies human rights protection to a substantial segment of the potential victim class.
Brennan and Hungerford claim there is a need for the exclusion of transgender women (i.e., non- or not-yet-female-bodied women) from “sex segregated facilities for a number of reasons, chief among them the documented frequency of male sexual violence against females and the uniquely female consequence of unwanted impregnation resulting from this relatively common form of violence” (emphasis added). Further, they seek international vitiation of gender identity anti-discrimination laws as “protection for the potential harm that females may experience because of our reproductive vulnerability.”
Sexual assault is no respecter of reproductive capability. Pre-pubescent girls get raped. Post-menopausal women get raped. Women incapable of conception because of surgical intervention or underlying physical conditions get raped. Transsexual and transgender women get raped. Moreover, not all rape is vaginal penetration: forced oral or anal copulation is rape that cannot possibly have anything to do with reproduction.
Brennan and Hungerford frame the potential harm to women in terms of possible unwanted pregnancy as though they must do so in order to fit some category of harm that would trigger this Commission’s attention. In doing so, they fail to address potential harm to women, by carving out an elite class of potential victims based on fertility. This is not an action reasonably framed to address human rights violations against women.
Are the targets of this framing of the issue actually female-bodied (i.e., post-operative) transsexual women, in order to obtain by stealth some kind of international determination that they are not or will never be women, and should not be accorded legal status, recognition and rights as women? The disclaimer that neither “individual males” nor “transgender or transsexual women are any more likely to harm females” certainly appears to propound such a distinction. Moreover, in their concluding paragraph, they draw a distinction between “females” and “transgender and transsexual people.”
Regardless of whether such a covert agenda is in play in the Brennan-Hungerford submission, there is a cruel irony to its complaint of potential harm to physically normal and fertile female-bodied women, given the great likelihood that transgender and pre-operative transsexual women who are raped will be murdered as well. Rapists denied the opportunity for forced vaginal penetration because of a contrary physical structure often act as though they are the victims of male-on-male rape, and their response is often violent. In fact, the murder of transgender women is not always preceded by or done in conjunction with an act of rape (see, e.g., the Wikipedia “List of unlawfully killed transgender people”).
The discrimination that gender identity anti-discrimination statutes are designed to alleviate includes discrimination in hiring. Pre-operative transsexuals in particular have a daunting poverty rate, despite the derogatory stereotype of well-to-do middle-aged men making a lifestyle choice to transition. Those who commence transition as employed adults can lose their jobs and have trouble obtaining new jobs. Teenagers not yet employed who exhibit cross-gender behavior or attempt beginning stages of transition are frequently expelled by their parents or run away because of impending domestic violence. There are many undocumented immigrants in the U.S. who fled their homes because of impending or actual gender identity-related violence. All of these risk homelessness and becoming part of the street prostitution population, as do the simply transgender who have become unemployed and poor through similar dynamics. Street prostitution means negotiating sex with a series of strange men and therefore heightened exposure to the risk of sexual violence, physical assault and injury, and murder.
It can be left to Brennan and Hungerford whether these are crimes against females or not; they are certainly crimes against individuals who are of the victim class of females because they are perceived to be such at the commencement of activities that end in acts of violence. At the very least, the consequences for these victims is far more extreme than the possible inconvenience of sitting in a closed bathroom stall adjacent to another closed stall in which the person sitting on the toilet is not fully female-bodied.
At the very least, in terms of potential victims who are female and were assigned as female at birth based on genital morphology, Brennan and Hungerford’s submission addresses only the potential violation of human rights for some of these women, while purporting to address a violation of the human rights for women in general. For this reason, their submission is fatally deficient, and for this reason, among others, Brennan and Hungerford should withdraw their submission or, alternatively, this Commission should reject it.
3. Implementation of statutes not yet determined in U.S. courts, and therefore no actual controversy for an international body to investigate.
In giving a brief overview of U.S. law that may likely frame the adjudication of these state statutes and their implementation, I have demonstrated a distinct possibility that the courts will not allow the potential harms over which Brennan and Hungerford express concern to come to pass. These are matters with a strong likelihood of being litigated, with the initial decisions appealed at higher and higher levels, possibly even before the U.S. Supreme Court. Courts of Appeal, whether state or federal, cannot reach down and rule on matters on which there is no record on which an appeal can be based. They have the option to let lower court decisions stand, and they may decide to adjudicate portions of a lower court finding; they may also decline to review a lower court decision and let it stand. Laws enacted by a legislature may conflict with other laws, and this is the process by which contradictions are sorted out and laws are determined to conform to the overall Constitutional framework or not. In short, laws are not final until any controversies around their meaning, application and implementation have been sorted out through a process involving layers of judicial review.
Regarding the state statutes of which Brennan and Hungerford complained, there is insufficient record for appeal to the highest levels of U.S. courts for determination. Until that process has worked itself out, possibly with legislative adjustments to the laws in response to how the courts interpret them, the effects of these statutes cannot and will not be known. If they violate human rights, there is likelihood they will not survive the appeals process in U.S. courts. Nobody will know whether these statutes as implemented will violate human rights until the law regarding them is relatively settled. They are nowhere near “ripe” for appeal to an external body.
I have brought up local private settlements of related disputes for an important reason: The closer adjudication is to the local people immediately affected, the more likely positive results protecting human rights will occur. For one thing, agreements arrived at by the people involved and affected are agreements of which they are more likely to take ownership. The more local the process, even a judicial process, the more likely solutions are to be crafted in such a way that they are workable, on a lasting basis, in the context of the indigenous culture and mores where they will be in effect. The more remote and the more levels above the body handing down the determination of law, the less likely the people affected by it will feel compelled to comply with them.
It is simply premature in terms of judicial appeal to resort to international adjudication of this matter, both in terms of procedure and in terms of a lasting resolution satisfactory to the submitters here as well as to the individuals who would be relying on these anti-discrimination statutes. UN involvement at this point in the adjudication of the meaning and effect of these statutes could be counterproductive in terms of ensuring human rights.
And, essentially, until U.S. courts have adjudicated these statutes and the law is reasonably well settled, there is no controversy for the U.N. to review. Again, the harm is potential and may not come to pass, and the law may eventually take shape in such a way that it does not enable human rights violations.
For these reasons, among others, the Brennan and Hungerford petition is premature and should be withdrawn, or, alternatively, this Commission should reject it.
* * *
Almost as an aside, before closing, there are some quirks of phrasing in the Brennan-Hungerford submission that give me pause. One, of course, is the distinction in their concluding paragraph between “females” and “transgender and transsexual people.” Another is the inclusion, in their first-page listing of sex segregated places that “the proliferation of legislation designed to protect ‘gender identity’ and ‘gender expression’ [purportedly] undermines,” of “female-only clubs” and the undefined “other spaces designated as ‘female-only.’” It is difficult to imagine the kinds of injurious acts Brennan and Hungerford fear could take place in bathing and dressing facilities and in bathrooms taking place on, say, a dance floor or in, say, a discussion group.
Then there is the statement, “As lesbians, we are concerned about the impact of this legislation on our community, and our community’s ability to meet free from male influence and involvement.” In the context of this petition, the only possible interpretation of this statement is that what Brennan and Hungerford define as the lesbian community is one free of post-operative male-to-female transsexuals on the belief they are not women and therefore cannot be lesbians.
That leads to the conclusion that Brennan and Hungerford’s concern is not for lesbians per se, but for that subset of lesbians and the lesbian community that identifies as lesbian separatists—a kind of fundamentalist movement within the lesbian community and rights movement. It rejects the definition of “lesbian” put forth by movement founders Del Martin and Phyllis Lyon (in their 1972 book Lesbian/Woman) about a primary physical, romantic and or spiritual attraction to other women whether or not overtly expressed, and defines “lesbian” in terms of non-involvement with men (even relatives) or maleness (real or perceived), including no bisexuality and nobody but cissexual women assigned female at birth.
This subset of lesbians, ironically, has not been satisfied with “separating” itself from the larger lesbian community and building its own institutions, but has for the past four decades asserted a hegemonic interest in any institution defined by those involved as “lesbian,” including the lesbian rights movement and the larger community itself. The appendix to the 2011 edition of Mirrors is a new critical essay that describes the disruption of the 1973 West Coast Lesbian Conference at the University of Los Angeles by a covert coalition of lesbian separatists and “political” lesbians (women who may be in fact heterosexual but who choose “lesbian” as a feminist identity label oppositional to men), meant to impose these political/lifestyle restrictions upon a politically independent California lesbian community that was in the process of achieving critical mass for a self-sustaining existence beyond the political control of either the Women’s Liberation Movement or the radical lesbians who came out of the New Left.
It is entirely possible I am being overly apprehensive. On the other hand, it would not be prudent to raise this possibility in the event that what we have in the Brennan-Hungerford petition is an attempt to leverage global human rights mechanisms into enforcement of separatist hegemony on the larger lesbian community and movement in the United States. For this reason, I would ask that the Commission give scrutiny to this possibility.
In conclusion, I thank the Commission for its kind attention to this rebuttal of the Brennan-Hungerford petition, and respectfully request that said petition be denied.
X Beth Elliott