Commentary

Nancy Nangeroni, February, 1999

In a number of locations around the country, activists are obtaining statutory protection of transgenders from discrimination on the basis of “gender identity.” This is a great thing, worthy of considerable gratitude from all of us. It takes a lot of work to move others to the effort of passing a new ordinance or legislation, and that work has to be sustained over an extended period of time. Each new town, city or state that adds protection for diversity of gender identity to its rules and regulations moves us all forward a step.

Yet there is an aspect of these gains that leaves me feeling concern that we are leaving some transgender people behind.

Diversity of “gender identity” is something that generally characterizes transsexuals and transgenderists – people who choose to comport themselves in society in something other than the presumed gender they were assigned at birth. Protecting the right of individuals to comport their gender as they see fit is, I believe, a necessary component of progress towards a gender diversity affirming society. Yet, failing to include gender characteristics and expression in these protective ordinances potentially leaves out all those whose gender identity does not challenge existing social norms. Men or women who crossdress but consider themselves to be simply men or women who enjoy crossdressing (rather than transgender individuals) would not necessarily be protected by a statute that protects diversity of gender identity. Rather, their practice of crossdressing could easily be disallowed on the basis of failing to arise from a diverse gender identity.

Also, transsexuals and crossdressers who do not “pass” frequently experience discrimination not on the basis of their identity or expression, but by virtue of their gender characteristics. Their body size, facial features, or other characteristics are often used by others as an excuse to exclude them from the ranks of “legitimate” transsexuals or “respectable” crossdressers.

Identity is a complex social construct, an element of the language by which we communicate. It is part of our spoken (and written) language, a verbal shorthand that communicates in one or two words a whole panoply of characteristics. For example, if I call myself a transsexual, I engage in others expectations about surgery processes that I intend to or have undergone, notions of movement across a bipolar gender characteristic, likely social discrimination encountered, and lots more.

“Identity,” at least as regards transgender people, is currently widely held to be something that can be most reliably defined by others. For example, it is generally accepted that for a person with a vagina to be accepted as identifying as a man, they must have letters of certification from one or two “experts” confirming their identity. Such external definition of a person’s identity is the prevailing legal notion of defensible identity. Such external definition is at least somewhat offensive to the sensibilities of many, if not most, transgender advocates. Yet it is a fact of life we must live with in order to obtain certain mental and medical health services, especially surgery and hormones. But identity is, in reality, a much more personal thing. Individuals often find their identity through prolonged processes of self-inspection and exploration. We tend to think of identity as an integral component of an individual. Yet identity varies over time and also depends on surroundings. For example, when I am at work, I identify as a “consulting engineer,” and further as a “telecommunications engineer.” While writing this article and hosting GenderTalk, I identify as a “transgender activist.” When all dolled up and out in public, I may identify as a “trans woman,” and while rollerblading or engaging in an activist demo I may identify as an “androgynous gender terrorist.” In my mind, the notion that my identity can be defined by someone else, with or without degrees and letters, is a reality within which I am forced to operate but whose basis I challenge as much as possible without impeding my own navigation of daily life.

Identity, then, has some weakness as a basis for legal protection. It is easily challenged, and the proof is usually accepted as provided by “experts” who may or may not have an appropriate understanding of the subject person’s best interests. It also presumes some underlying reason for a person’s exercise of gender freedom, a limitation that would never be accepted as a basis for freedom of speech. Imagine if you had to prove you were a bona fide liberal in order to talk about progressive social change!

Diversity of gender identity, in our society that is currently structured around a gender binary, is an essential right. Without it, transsexuals and transgenderists have limited statutory basis for assignment to gender-appropriate housing, whether in a college dorm or a prison cell. Protecting freedom of gender identity assures such persons access to appropriately gender-coded institutions until such time (should it occur) that gender-neutral facilities become more widely available. But while diversity of gender identity is an important component of a diversity-affirming society, it does not affirm the right of those with more static identity to crossdress or otherwise play with or periodically change their gender. It would require them to revise their internal and external notions of identity in order to do so, hardly a liberating concept. Protecting freedom of gender expression would protect such behaviors.

Gender expression is a function of behavior, voluntary and involuntary. It includes facial appearance, vocal intonation, as well as general body carriage and movement. While some aspects of expression (smiling, acting nervous, etc.) are not gendered, many (wrist and hip motion, voice pitch and phrasing, use of facial makeup, choice of clothing etc.) are strongly gendered. These may or may not be associated with the formation of an identity, and may or may not be protected by statutes protecting diversity of identity.

There are many men who crossdress and for whom discovery of that pastime could lead to disastrous consequences arising from erroneous presumptions about their morality, mental stability, or simple trans- or homophobia. Although a recent Supreme Court ruling arguing for a wider interpretation of human rights protective legislation coverage promises to improve the outcomes of court challenges to discrimination, we cannot presume that existing law will be interpreted to protect the rights of those who crossdress recreationally. And social movement towards acceptance of crossdressing without such laws has been glacial at best.

I am aware of no case in this country in which discrimination against a person based on their crossdressing has been found to be unlawful. Although firings over crossdressing are relatively rare, they do occur and are a significant concern for any crossdresser. But perhaps the largest problem for most crossdressers is the effect of discovery upon their family. The fact of a spouse’s crossdressing is regularly used to obtain biased court settlements in divorce cases, both when child custody is at issue and when money is the concern. While there are families who “stand by their man” — or woman — when called upon to do so, many more live in great fear of discovery of their partner or parent’s “weird obsession,” and quickly desert that person when such happens. The toll exacted from crossdressers in lost family and friends is both inestimable and completely overlooked by both the courts and society. Rather, in most cases the individual who crossdresses is presumed to be at fault, and will probably continue to be presumed so until legal recognitions of individual right to crossdress without fear of attack from any quarter is established.

Advocating for protection of diversity of gender identity and expression rather than simply ‘identity’ would potentially protect an individual’s right to present their gender as they see fit without regard for how they presented yesterday or how someone else thinks they out to present. Including “gender expression” supports the recognition of gender as a visual language whose expression may vary at any moment, and which need not derive from some underlying physical fact. Freedom of gender expression is analogous to freedom of speech in a visual rather than auditory medium. It is a simple concept, easily understood and defended.

Yet freedom from discrimination on the basis of gender identity and expression is not enough. Some people experience discrimination not on the basis of gender identity or expression, but rather because their gender characteristics fall outside of expected norms. Gender characteristics include those physical attributes that may or may not be controllable. For example, a female-to-male transsexual may occupy a body that is unusually large or coarsely featured for a woman. Such a person may have great trouble gaining acceptance as a woman from those around them, and may attract considerable negative attention.

In many cases people who are generally supportive of transsexuals who “pass” will strongly discourage those who don’t from free expression of their gender identity. Likewise, many people who support the right of others to crossdress will nonetheless discourage those who don’t “look good.” Even in the transgender community there is a tendency to accept transgenders who “pass well” or “look good” while overlooking the needs of those who don’t. Physical attributes which are encompassed by neither identity nor expression must be included in any statutory relief from discrimination on the basis of gender. It is crucial that we protect against differential treatment of transgender persons on the basis of their gender characteristics.

In the Cambridge anti-discrimination ordinance, we prohibited discrimination on the basis of “gender,” and defined gender as “the actual or perceived appearance, expression or identity of a person with respect to masculinity and femininity.” Lucent Technologies (thanks to Mary Ann Horton) and Apple Computer, more recently, provided protection on the basis of “gender identity, characteristics, and expression.” This would appear to be the more inclusive language, as ‘characteristics’ includes appearance and more, at least when so defined within the text of such an ordinance.

Recently, there has been a suggestion that we ought to use the term “gender variance” for statutory work. I do not believe that such is a good idea. It could be interpreted to presume a normalcy against which such variation must be measured. Moreover, most statutory wording for dimensions of diversity – sex, race, religion, sexual orientation, etc – simply name the dimension, with some element of difference in discrimination implied. We will probably do better by following suit, unless we have some compelling reason for not doing so.

If we seek to create a gender diversity affirming society, we would do well to include not just statutory protection for diversity of gender identity, but also for diversity of gender characteristics and expression. While I am neither legal scholar nor linguistic expert, but I believe this wording can withstand close inspection. I might be wrong, or other legal or social changes might make the point moot. But I urge all who are advocating for protection of diversity of gender identity to seriously consider whether such protection is as inclusive as it needs to be to create a safe haven in this culture for persons of diverse gender characteristics and expression. “Gender identity, characteristics or expression” is, I believe, the most inclusive expression of gender diversity yet proposed.

Whether as a clarifying definition of the word “gender”, as an element of a list of statutory protections, or simply as an enumerated dimension of diversity, it is a degree of inclusion worth working for.

Published in Transgender Tapestry summer 1999 under the title “Eyes on the Prize”