Notes on the amendment to the Cambridge Human Rights Ordinance
1) There is no significance to the proposed location of "gender" between "sexual orientation" and "marital status". Any other position within the same list of protected classes would work as well.
2) The definition of gender is intended to provide protection from and recourse against harassment of any individual because they are perceived by others as not sufficiently masculine or feminine, or too much of that which is expected to be opposite to their nature. It is intended to establish and protect the right of all individuals to behave as "masculine" or "feminine" without predisposition or censure because of their particular physiology.
3) The definition of "same sex" is provided as guidance for situations where a person's gender appears in conflict with their physiology, calling into question their actual "sex". Culturally, we tend to determine a person's "sex" by inspection of their gender. However, we are learning that there are significant numbers of persons whose gender is at apparent odds with their physiology. Since we have until now defined sex by physiology, but determined sex by gender, a conflict exists which demands redress. Furthermore, as some persons exercise greater variation of gender expression, there arises greater difficulty in applying conventional standards as a guide to determine if a person is man or woman. Yet there remain those desirous of segregation by sex for the purposes of housing and education, who need a sound basis for determination of a person's inclusion or exclusion.
Thus a means for determining "same sex" is needed. It should provide for the winnowing out of pretenders or others who would take hurtful advantage, while providing for the inclusion of those whose admission brings no harm to others, and who would be themselves harmed by exclusion.
There are significant numbers of persons whose physiology is opposite to what one would expect for their gender. We need to provide reasonable conditions for their inclusion in "same sex" categorizing in order to avoid their hurtful and inappropriate exclusion. Such persons include the transsexual who has not obtained (and may not intend to obtain) genital surgery. Also included is the intersexual, a person born of mixed male/female physiology, whose identity is often at odds with their apparent sexual polarity or that imposed on them by well-meaning doctors and parents.
The offered definition of "same sex" provides two tests of a person's "sex" for use as an admission test for housing, schools and programs.
The first test is social role. If a person generally and with reasonably consistency relates to others as a member of the "same sex" to which they desire admission, they should be regarded as such. However, it should be noted that relating "as a man" or "as a woman" is subject to a wide range of interpretations, and there is at this time a growing social movement to eschew or confuse such categorization. It is not the intent of this writing to in any way contribute to the exclusion of persons who blur their apparent male/femaleness. However, this writing does intend to protect the right to exclude from same sex categorization for the purposes expressed in the commission document a person who currently appears sometimes as a man and sometimes as a woman. At the same time, a person's past appearance should not be used as a basis for exclusion.
The second test, identity role, allows for the buttressing of a person's claim to be "same sex" by virtue of their professed identity. A woman may appear as manlike as she wish, however, if in her mind she is clearly a woman, she should be allowed admission to women's "same sex" facilities. Thus the test of identity allows for changing expression of gender, including transgression of an established norm. Should this same person feel herself - himself, in this case - to be, in fact, a man, then admission to men's "same sex" facilities would be more appropriate. Likewise, a man may appear as feminine as he wishes, without giving up his claim on manhood, but one who identifies as a woman and interacts as such, may not be categorized as a man despite physical characteristics which would appear to contradict.
The intent of this definition of 'same sex" is to protect those transsexuals, intersexuals, and others who do not "pass", that is, they are regularly perceived as opposite to their self-image and identity. For example, a person born with a penis but identifying as a woman may be possessed of an appearance which is "unmistakably male", such as coarse facial features, facial and body hair, broad shoulders, deep voice, narrow hips, etc. When such a person identifies as a woman, and makes obvious attempts to be perceived as such, however ineffective, it is generally hurtful to categorize such a person as other than a woman, whereas categorizing this person as a woman does not in and of itself hurt others. Rather than traumatize the individual by exclusion, it is intended that we honor their obvious visible attempts to be womanly, and their self-identity as a woman, despite our expectations of how a woman should appear. The same is true for the similar but opposite case of a person born with female genitals but identifying as and making an obvious effort to be perceived as a man. We should regard such people for all intents and purposes as men. This approach is recognized and supported by leading medical and psychological experts in the gender field.
4) It is implied by this proposal that the gender appearance, identity, or expression of any individual should by itself warrant no presumption of unhealthy deviance, guilt or malfeasance whatsoever.