Attorney for Gender Justice
By Gordene O. MacKenzie and Nancy R. Nangeroni
In the mid to late 1990’s the board of directors of GLAD, the Boston-based Gay and Lesbian Advocates and Defenders, decided to look closely into the emerging area of gender and transgenderism, to consider whether or not they should be incorporating some of the new perspectives emerging from that movement into their work. As a group of attorneys litigating key cases aimed at setting far-reaching precedents in defense of LGBT persons, the GLAD board made it their mission to advocate on behalf of those who had been denied justice because of their gender. Four years ago, they offered a job to a trans-identified attorney from Chicago who had been helping transpeople with legal concerns in her spare time. That attorney was Jennifer Levi.
Since that time, Jennifer has been involved in – and won – a number of high-visibility court cases in the New England area that have set far-reaching precedents on matters dear to the hearts of most, if not all, transgender persons. She was the primary drafter of Rhode Island’s Transgender-inclusive non-discrimination law. She has been instrumental in winning favorable rulings for transpeople in employment, healthcare, lending, public accommodations, and education. Her arguments produced a legal victory in the Brockton, MA case where a biologically male transgender student won the right to attend school wearing “girl’s” clothing. She is helping establish that transpeople are included under federal sex discrimination law coverage.
We spoke with Jennifer about gender case law, and about her own gender identity and beliefs.
NRN: How did you get to be a committed advocate for gender diversity?
JL: It started, a long time ago. I came to some kind of consciousness about my own identity from reading Leslie Feinberg’s “Stone Butch Blues”. I had come out as a lesbian before then. Growing up I had always been seen as a boy and over a period of time I could see that it brought shame and embarrassment to others around me, including even my family who has always been supportive of me. I could tell it wasn’t a good thing for me to be perceived as a boy when we were in public, even though no one ever directly told me that my gender expression or the way I looked was a bad thing. When I came out as a lesbian in college, I felt easier about my gender expression.
Reading Stone Butch Blues, though, made me think about the issue for me being more related to gender identity than sexual orientation. I’d never thought about gender expression as being an identity, as being significant, even, for that matter. When I came out as lesbian, I met and found a community that I was comfortable in. But after reading Stone Butch Blues, I thought, my experience of difference has been much more related to my gender expression than to my sexual orientation, although that remains significant, just not in the same ways.
I’ve always thought that I share as much gender identity and probably gender expression with my brother as I do with my sister. When people would look at me and refer to me as male I never thought that they were wrong. I thought that what they were saying is that I wasn’t gendered female, and I always thought that was true. I could look at my sister and say, “We don’t share the same gender.” And so having a transgender identity has been so welcoming for me, and appreciated.
GOM: Maybe because lesbian feminism opened up a space that created community on some level, and then with gender there’s another level that opens up?
JL: Coming out as lesbian put relational pieces into place for me, but didn’t put self or identity pieces into place. So I decided I would read everything I could about trans anything. Around that time I was teaching and had a bit of a travel and conference budget, and thought, “Well, I’ll go do transgender legal something or other.” I found this conference in Houston, the International Conference on Transgender Law and Employment Policy. I went, and it was the most incredible experience because for the first time, and I steal this line from my lover, “I felt so ordinary.” That was a transformative experience for me that motivated me to become increasingly involved in the legal struggle.
GOM: What led you to law, and what kind of law did you focus on, and how did you get to GLAD?
JL: I worked in the tech industry in the late 80s and as I advanced it that career, the work became more technical and less interesting. I was also increasingly involved in gay and lesbian politics and activism, so I thought that if I went to law school, that would be a good way to do something practical in advancement of gay and lesbian civil rights. When I graduated it was pretty hard to get jobs in the public interest, so I worked in a large law firm where I was pretty unhappy for several years. I taught law in Chicago for a couple of years and that’s when I started doing volunteer legal work on transgender cases. Then I got the job at GLAD and moved across the country.
NRN: What was it like in those early days of working on transgender law?
JL: It was pretty hard, there wasn’t a lot that you could do for people. Some of the questions were basic questions about document changes, and there was more that you could do for people who, for example, had been unfairly denied name changes. When custody cases came up we tried to get people to psychiatrists or psychologists who would give a favorable report to a court.
GOM: Was that hard then?
JL: Then and now. It’s really hard around the custody issues. Partly because if you muster up your national resources you can pull together a good qualified team of experts but, for any particular state or community there’s not a lot of people that have expertise in the area.
NRN: One of your early cases involved a transsexual woman who had breast implants, and then had trouble with the breast implants, and needed reconstruction.
JL: She had been denied coverage by Medicaid for a breast reconstruction, relying on the Medicaid exclusion for sex reassignment surgery, and treatment and procedures relating to it. The state said they’d pay for the removal, but not for the reconstruction. We got that reversed in an important decision that acknowledged that if somebody transitioned 25 years ago, her need for breast reconstruction wasn’t in the advancement of, or for the purpose of, transitioning.
NRN: What kinds of cases do you typically handle?
A broad range of them. I feel very strongly committed to ensuring that the disability laws extend to transgender people who face discrimination either because of a perception that they have a serious health condition or because they have a serious health condition. Although I don’t want to overstate this, I acknowledge that there is some disagreement both within and outside of the community about whether to pursue disability-based protections for transgender people for fear of perpetuating the stigma we already face. I strongly feel that that these objections are based on a misperception of disability discrimination law, There is a real problem with stigma associated with disability, but the answer isn’t that people with health conditions shouldn’t rely on the law that’s intended to protect them. The answer is that we should be fighting that stigma.
GOM: In the late 80’s or early 90’s, an amendment was tacked on to the disabilities act which excluded gender and sex minorities, lumped with pedophiles and sex offenders.
JL: Federal law explicitly excludes transgender and transsexual people from the Americans With Disabilities Act. It’s not based on any principled exclusion that looks at whether or not somebody can meet the definition of being disabled. It’s just based on a stigma that associates transgender people with criminals.
GOM: But now you argue from a different vantage point, that it is a form of disability if it prevents a transperson from being able to work or keep their job.
JL: Most states have a definition of disability that says a person is covered by the law if they can demonstrate that they have a serious health condition, and that they are substantially limited in a major life activity because of that condition. For many transgender people, their gender identity is related to a significant health condition. Whether you characterize it as a mental health or physiological condition doesn’t matter for purposes of the law. Some people characterize their own transgender identity or condition as being an endocrinological or neurophysical condition. Some people identify with having gender dysphoria, and for them it’s a mental health condition. So that basic requirement of a serious health condition is met for many people, and then they are substantially limited in every major life activity if they can’t get hormones, treatment and therapy. They may indeed be suicidal, they may be profoundly depressed, and it may inhibit the ways in which they interact with other people. That’s the legal definition of a person with disability. So if someone is discriminated against because they have that disability, like if somebody comes out as being transsexual in the workplace and they’re fired because of that particular health condition, then they should have recourse through the disability discrimination laws.
NRN: So they actually potentially have recourse through two different laws then, sex discrimination and disability discrimination.
JL: Exactly. What unfortunately has happened is that because of the stigma related to disability, a lot of people even within the transgender community have sought to take us out from under the protections of those laws. For example, in the case involving the transgender student in Brockton.
NRN: This was the student born male who insisted on wearing a dress to school.
JL: Right, and everybody was fine with it except for the administrators who said, “You have to come to school looking like a boy.” We brought claims of both sex discrimination and disability discrimination, and we got favorable decisions on both of those. As the court explained it, one of the reasons why it was disability discrimination was because asking this student to change her gender identity would be like asking her to change any other physical condition she has. For example, a school could not require a student who was 5”8” only to attend school if she was 5’6”. Because gender identity is not something that a person can change about themselves physically, the judge ruled that the school needed to accommodate the student’s condition disability. It’s unfortunate language, and I think it makes people uncomfortable, but there’s no principled reason to exclude people from the protections of the law, it’s just because of the stigma.
GOM: I remember when sex discrimination wasn’t being considered for transsexuals, but it seems like change came out of an unexpected direction, the Hopkins v.Price-Waterhouse decision on a woman being discriminated against because she wasn’t feminine enough and didn’t wear makeup. All of a sudden we got this gender opening so that we can start looking at possibilities for trans inclusion.
JL: Yes. The early cases where we’ve had some success have not been the classic cases in which claims on behalf of transsexual people were denied but rather have involved gender non-conforming people who may or may not even identify as transgender. But hopefully we have laid a foundation for bringing those claims.
GOM: In the late 80s and early 90s it seemed that both disability and sex discrimination were dead as arguments.
JL: Yes, though that’s certainly not true now. You now have two state human rights commissions that have interpreted state sex discrimination laws to explicitly include transgender people, Connecticut and Massachusetts.
NRN: When you talked to the medical professionals at the Harry Benjamin Association, you encouraged them to help the transgender community in the area of family law.
JL: One of the most important things that the medical professional community can do is to explain that transgender parents are good parents and the best thing that you can do in terms of providing a good home for children is to strengthen their relationship with their parents. Something that took some time to build in the Gay and Lesbian political arena was a broad-based consensus that gay parents are good parents. It’s a critical role that medical professionals can play, to explain to people that there’s no correlation between any negative factors in terms of outcomes for children, and having a transgender parent. The other pieces that are important are for medical professionals to be assisting courts in understanding that somebody’s sex is not defined by either what their genitals are, strictly, or by one particular factor in terms of chromosomes, or whatever else is relied upon as an original sex designation.
NRN: What about moving out of a strict binary interpretation of sex?
JL: I actually like gender. I don’t necessarily like binary definitions of gender, although I am attracted to that as well, it’s something that I understand and that fits into my world. However, I would say that there should be no legal significance to either someone’s gender identity or their physiology. The only circumstances I can think of where a person’s sex matters from a legal perspective are ones intending to discriminate against gay and lesbian people. The reason we need to know somebody’s sex when they get married is to insure that same sex couples can’t marry. I don’t know why we have to put sex designations on driver’s licenses. You see my picture, that’s what you need.
NRN: We don’t keep religion on driver’s licenses, because we don’t want to discriminate on the basis of religion. If we don’t want to discriminate on the basis of sex…
JL: Right. But my identity as a feminist, my identity as a lesbian and even whatever sort of relics I have with my identity as a woman, are all integral pieces of who I am, so I’m not that interested in breaking down gender. I like gender, it defines me. If I could give an analogy, I think that race and religion are important identities for people, and create community, and admittedly create division and wars and all that stuff, but I think hopefully most people, at this point, would agree that they should be legally irrelevant categories and then what people want to do with them beyond that is up to them.
My real goal is to work towards the legal irrelevance of gender, and then beyond that it’s all interesting to me.
GOM: What about litigation about people born as intersexuals? Or intersexual arguments used in gender case law?
JL: The arguments definitely get used, and the fact that there are intersexual people can help raise awareness about the fact that there really isn’t a clear and true dichotomy of sex. But I don’t necessarily think it drives home the point because then people think, ‘well there are men and women and there are intersexuals.’ I think there’s a lot more work to be done both in terms of identifying and understanding the legal concerns of intersexual people and figuring out the appropriate ways to raise awareness of intersexual people that does so with dignity for that community and others. It has been said to me and it makes sense, that a lot of the real concerns of the intersexual community are around sex designation at birth. It’s much more infrequent that we hear about the kind of rank discrimination in employment if somebody learns that somebody’s intersexual, than if somebody learns that somebody’s transsexual.
GOM: A large concern is about surgery without permission and related issues.
JL: Yeah, the hardest thing is of course that there’s no infant intersexual community to stick up for itself though the support of intersexed adults has been critical in advancing awareness of the issues.
GOM: What kind of careful groundwork do we need to lay for the next generations, in terms of gender and law, what kind of questions do we need to ask, Jennifer?
JL: That’s a very hard question for me. As a lawyer I react to problems and don’t do as much forward thinking and planning. Maybe the questions about what is gender, and how we would want a society structured if we thought about the impact of gender, will be those next questions. I don’t focus on them so much because I’m focusing on its legal irrelevance.
GOM: These days in the media we see more manly men and pinup women as gender roles are getting more divided. As the war drums beat, do you see a backlash or a scapegoating around gender, or people that are differently gendered?
JL: I see strides in education more than anything. When I was at the hearings in Rhode Island to add gender identity and expression to the non-discrimination law there, the legislators didn’t have much of a clue about what we meant when we talked about transgender or gender stereotyping or a continuum of gender expression. People, though, had a sense that it was a bad thing to fire someone for being transsexual, and that’s a quantum leap. Now it’s far from what I think a lot of us are talking about in terms of broader understandings of gender, but I don’t think it’s so much a backlash, because I do think there’s more education, more awareness, more understanding. It’s just incredibly limited and narrow at the moment and needs to be expanded upon.
To start where people have some understanding is important because, though many of us have thought about these issues for our entire lives, some people don’t think about them at all. Tying it back to my personal experience, my family is tremendously supportive. They always have been. I think it was actually a surprise to them that it made me more uncomfortable to have them correct people about my gender than to let the references go. I think they felt they were sticking up for me because they wanted me to be able to look however I wanted to look and not have to be uncomfortable. They didn’t understand, and I couldn’t understand then, either. It took awhile to explain to them why I’m comfortable being referred to in public as ‘he’, and why that confirms and affirms my gender identity rather than undermines it.
One of the reasons we’ve been able to make as many strides as we have in the gay and lesbian community is because, increasingly, very few people can say ‘I don’t know a gay or lesbian person’. I think it’s the responsibility of those of us in the transgender community to be out, to be vocal, to be visible, so that hopefully there will be fewer and fewer people who can say ‘I’ve never met anyone who is transgender’.
NRN: What is “Oncale vs Sundowner”?
JL: Oncale vs. Sundowner was a same-sex sex harassment case that went up to the United States Supreme Court. The reason it was a critical case was because what the court acknowledged is that the legislature had not explicitly intended, when it passed the sex discrimination laws, to be addressing same sex sexual harassment. Nevertheless, the court said that if the language of the statute is clear, it would apply in those circumstances despite the fact that nobody had anticipated that application of it.
NRN: That’s an important legal principle, because that says that ‘the principle is important, not the practice that was known at that time.’
JL: Exactly. And it’s the reason why the early cases of discrimination against a transgender person in employment where the courts threw those out saying that they did not involve sex discrimination, are just ludicrous. If someone is a fine employee when they’re male, and then transitions and gets fired when they’re a woman, there’s no principled way to argue the adverse employment decision is not because of the employee’s sex. But what those old cases said was that the legislature never could have intended for the law to extend to a transsexual person.
And what the principle from Oncale says is, that’s not the way to interpret the statute. The way to interpret the statute is according to what it says, not solely by what the legislature had thought about. The fact that nobody was thinking about whether it would apply to transgender people doesn’t mean that transgender people are excluded from its protections any more than a man who is harassed by another man in the workplace is excluded from sex harassment protections.
GOM: In one of your articles, Jennifer, you said the things that alarmed people the most, were cases involving bathrooms and the fear concerning men in dresses in the workplace.
JL: They’re hard issues, and, in terms of the bathroom issue, I think there needs to just be basic education done about who transgender people are, addressing some of the underlying myths that generate anxiety. For example, transgender women are not men who are masquerading as women in order to harass women, or be voyeurs. It’s just a basic principle about which we need to do more education. I think that FTMs can be instrumental in helping to do some of that educational work, because nobody wants to share a women’s restroom with an FTM, appropriately so, and that can help with the basic education that needs to be done.
Interestingly, I think that that educational piece is going to happen at a second stage, once we have established some basic protections, like in Massachusetts and Connecticut and now in Rhode Island. To establish those basic protections, you need to be able to integrate transgender people into the workplace. You need to provide safe environments for people to go to the bathroom and take care of the most basic issues. You can only get to that second level of education once you’ve set that foundation, the basic principle of non-discrimination. In terms of men in dresses in the workplace, I think that some of that misperception also stems from some very basic misunderstandings about transgender people either wanting to be disruptive or troublemakers, or inappropriate. We need to address those basic issues. But frankly some of it is also feminist education, and working even harder to ensure that men have a broader range of gender expression. That way, even if people have misunderstandings about who transgender women are, they will be less fearful of working with them.
I think that difference makes people uncomfortable, and as more people become more visible, come out, and talk about their own experiences of gender, the differences in gender and gender expression and gender identity become less threatening to everybody. It’s one of my hopes and aspirations that people will feel more comfortable talking about that, from whatever their experience is. Whether it’s someone who’s transsexual and passing, or a part-time crossdressing person, or someone who’s genderqueer, or somebody who doesn’t quite identify with all of the characteristics of being male or female, that adds to the general understanding people have about transgender people, and makes it all less threatening to other people. That’s how we see change over time.
GOM: Tell us about GLAD’s role in all of this.
JL: GLAD has been one of the forerunners in doing this work, and has had a clear commitment to working on what is described in our mission as the ending of discrimination based on gender identity and gender expression. I appreciate the support that we’ve gotten from our board. There was never any real question about the importance of doing this work. When I got there, people wanted to understand about transgenderism. So my coming there, and bringing this passion to the work, just moved us on this path.
NRN: They really understood that gender is at the root of all of it.
JL: But the nice thing is too, I had the sense that it didn’t have to be that gender is at the root of sexual orientation discrimination in order to do the work. It’s just the right thing to do.
NRN: Do you want people to contact you if they have a case?
JL: Absolutely. One of the things that we haven’t brought is a claim on behalf of a transsexual person who was fired after they transitioned, because they transitioned, and we’ve laid a lot of the groundwork to bring that kind of claim, but obviously it’s important to go that next step. I’m also interested in challenging exclusions from coverage for Medicaid, particularly in Vermont and Connecticut. Some of that has to do with the case law that’s out there, and where we can push things. And I don’t always know the best time to bring them, but I’m always deeply concerned about cases where somebody’s challenging a relationship between somebody and their child because they’re transgender, or challenging a marriage, or is denied the ability to change either the birth certificate or their name or documentation.
GOM: What do you do for fun, Jennifer?
JL: This is fun! (laughter all around) Well, the funny thing is, when I wasn’t doing this work, and I was working my 8 to 8 or whatever, this is what I was doing on my evenings and weekends, and it’s often still what I do on my evenings and weekends. It’s a great position to be in. For now, I wouldn’t trade it.
Nancy Nangeroni and Gordene MacKenzie have interviewed Jennifer Levi several times previously on GenderTalk radio. You can listen to those interviews, with much more discussion of recent gender issue court cases, at www.gendertalk.com.
Gordene is co- host and producer of GenderTalk radio. A transgender rights activist and educator since the mid 1980s, she is the author of Transgender Nation and director of the Women’s Studies program at Merrimack College in the Boston area.
Nancy is the founder and co- host and producer of GenderTalk radio. She is a writer and activist on transgender issues, and has been a transactivist and educator since the early 1990s.
Nancy and Gordene live together in a little house in the woods of North Reading, Massachusetts.