Transparent: when legal fictions and judicial imagination make facts disappear, they enforce transphobic discrimination.

• Author: Hammer, Gail
• Position: Appendix I through Appendix II, with footnotes, p. 163-203

APPENDIX I

Suggested information to use in educating judges about transgender people

Language

All professions' members talk to each other in their own special language. The law is no exception. In the law, we sometimes use what appear to be ordinary words in extraordinary ways. (180) Words have power.

[W]ords in the law, their meaning, their selection, and order, are paramount. The particular selection and sequence of the words in the law are the source of its power. A single, well-chosen word can win a case, or a heart, or enforce a contract. A single, ill-chosen word or comment can, on the other hand, breach a contract, destroy a relationship, or lose a case. (181) Though words have power to connect us, they also have power to exclude. Some people are outsiders, excluded from the heart of community life, by the words used to define them.

Pronouns.

"People should be treated according to their self-identified gender.... While most people have never questioned their gender identity, some people have spent a great deal of time struggling over it," trying to reconcile how they feel with how they look, trying to decide how to cope with the discrepancy, how to tell family and friends. (182) Living differently from one's sex assigned at birth "is not undertaken lightly." (183) Simple respect requires referring to people with the words they prefer. Some activists advocate using gender-neutral pronouns: ze (pronounced zee) or sie (pronounced see) in place of he or she, and hir (pronounced heer) in place of his or her. However, some have fought very hard to claim a gendered pronoun and prefer to use that hard-won pronoun. Identification defined by others can negatively affect transgender people. "Because it connects people to data, identification attaches informational baggage to people. This alters what others learn about people as they engage in various transactions and activities." (184)

"Transgender" is an "umbrella term" for "a wide range of identities" including what some sources describe as transsexual people, regardless of whether they undergo or plan to undergo hormone treatment or sex reassignment surgery. (185) In its most inclusive sense, transgender means not conforming to gender expectations. In an award-winning play entitled Clearly Marked, S. Bear Bergman (186) asks the audience, "Who here with a vagina has repaired something?" and "Who here with a penis has helped raise a child?" (187) When audience members raise their hands in response, Bergman points at them and names them "transgender, transgender, transgender, transgender." (188)

Although anyone who transgresses or transcends gender lines could be characterized as transgender, the term is also often used to refer to individuals whose sex assignment at birth is incongruent with their gender identity.

"Cisgender" (pronounced sizz-gender) refers to a person whose sex assignment at birth is congruent with her or his gender identity. (189) Along with that congruence comes an ease, an unquestioning comfort, not generally available to transgender people. (190)

A schema for analyzing dimensions of human sexual identity. (191)

For clarity, it may be useful to consider four distinct dimensions related to human sexual identity: sex, gender identity, gender expression, and sexual orientation. None of these dimensions is necessarily binary, and, although some are more highly correlated, all are capable of functioning independently.

Sex is defined biologically, with reference to chromosomes, genitalia, internal sex organs, secondary sex characteristics, and hormones. (192) Sex is generally regarded as a binary, i.e., male or female. (193)

Chromosomes are the only biological characteristics used to define sex that cannot be changed medically. (194) Chromosomes are not divisible into binary categories. (195) Using chromosomes to define sex is problematic, because they are not readily visible. Testing is intrusive and violates privacy and the results are not always unambiguous. (196)

Genitalia can be changed medically. (197) They are not always divisible into binary categories. (198) Using genitalia to define sex is problematic because testing is intrusive and violates privacy, and the results are not always unambiguous.

Internal sex organs can be changed medically. (199) They are not always divisible into binary categories. (200) Using internal sex organs to define sex is problematic because testing is intrusive and violates privacy, and the results are not always unambiguous. (201)

Secondary sex characteristics, such as a beard and breasts, can be changed medically. (202) They are not necessarily divisible into binary categories. (203) They are not necessarily reliable indicators of a person's biological sex. (204)

Hormones can be changed medically. (205) They are not divisible into binary categories, and in fact all humans have the same sex hormones, but in different quantity. (206) Using hormones to define sex is problematic because testing is intrusive and violates privacy, and the results are not always unambiguous. (207)

United States jurisprudence provides some protection against discrimination based on sex: i.e., sex is a category subjected to heightened scrutiny for equal protection analysis. (208)

Gender identity (man / woman / androgynous (209) / genderqueer (210) / boi (211) / transgender / trans / transman / transwoman etc.) is self-defined. (212) It is possibly the only truly immutable dimension of the four identified here. Some courts have recognized its immutable quality. (213) For example, the Ninth Circuit Court of Appeals said, "Sexual orientation and sexual identity are immutable; they are so fundamental to one's identity that a person should not be required to abandon them." (214) In considering whether persecution based on transgender status qualified an immigrant for asylum, the court concluded as a matter of law that the plaintiff's "female sexual identity is immutable because it is inherent in his identity; in any event, he should not be required to change it." (215) The court noted, in response to descriptions of persecution, that the plaintiff's "female sexual identity must be fundamental, or he would not have suffered this persecution and would have changed years ago." (216)

Gender identity cannot be changed by psychotherapy or by medical intervention. (217)

Gender identity receives no protection from employment discrimination under federal law. (218) It does receive protection under the laws of eighteen states, (219) the District of Columbia, (220) and at least (225) cities and towns. (221)

Gender expression (masculine, feminine, androgynous, butch, femme) encompasses appearance, demeanor, mannerisms, and various other trappings that communicate gender. It is a gloss laid on and perceivable by others. It includes some voluntary and some involuntary elements. For example, how one dresses is usually within the individual's control; how dress is culturally defined and assigned according to sex is not within the individual's control. Gender expression receives some protection in the employment context. (222)

Cultural notions of gender are fluid and evolving, and include arbitrary assignment of gender meaning to things that have no inherent gender. For example, pink, considered a feminine color today, was considered a masculine color in the (1800) s. (223) Judith Butler refers to our gender performances as "ritual social drama." (224) Hafiz says, "I view gender as a beautiful animal that people often take for a walk on a leash and might try to enter in some odd contest to try to win prizes." (225)

Gender expression is one area where transgender individuals can be distinguished from those who "cross-dress." It is possible to play with the costuming of a sex without desiring to be or believing oneself to be of that sex.

Sexual orientation (heterosexual, homosexual, bisexual, asexual, pansexual) is often defined in a purely binary framework (heterosexual or not heterosexual), referring to the object(s) of one's physical and emotional attraction. The binary provides categories that are over-inclusive and may simultaneously be under-inclusive. Sexual orientation functions independently of the other dimensions. It is not necessarily binary. It appears to have a biological base. (226) It appears to be immutable. Whom "we love and why we love them is often as mysterious and as unfathomable as we are." (227) There is no general protection under federal law against employment discrimination based on sexual orientation, though "[t]he federal government and a large majority of states bar sexual orientation discrimination in government employment; nearly half the states and more than (100) municipalities bar such discrimination by private employers." (228)

Transgender people tend to be included with gay, lesbian, and bisexual people, but this is not necessarily a logical inclusion. A transgender person can have any of the possible sexual orientations. The sexual orientation of some transgender people changes as a result of going through sex reassignment treatment. (229) However, people living on the margins of "ordinary" sexual definitions tend to be more accepting of transgender individuals and issues than those who live squarely within what is considered "normal." S. Bear Bergman refers to transgender rights and gay and lesbian rights as two separate boats. (230) "As a person with one foot in each boat, I have a vested interest in being sure they stay close together," Bergman says. (231) Depending on how and when a person's sex is defined, a trans person attracted exclusively to men could be characterized as exclusively heterosexual or exclusively gay.

Some feminists, while supporting gay and lesbian rights, object to regarding transgender women as women. (232) The objections seem to have two bases. One basis for objection is the notion that a transgender woman has participated in patriarchal privilege as a biological man and...