BY NOAH LEWIS
Imagine an 800-page trial court opinion that discusses in-depth every last detail about your genitals–what they look like, how big they are, what they are capable of.
That was just one case that Cole Thaler presented on Tuesday at a talk on the emerging field of transgender law. HLS Lambda sponsored the discussion by Thaler, who recently accepted the newly created position of transgender rights attorney at Lambda Legal. Attracting law students and community members alike, the talk drew fifty people and focused on addressing audience questions.
Thaler’s presentation was the second in Lambda’s two-part series on transgender issues. On April 18, Gunner Scott of the Massachusetts Transgender Political Coalition presented an introduction to who transgender people are and the problems they face in society.
Thaler’s survey of the field of transgender law revealed that the transgender community has its work cut out for it. Transgender people’s marriages may be voided as “same-sex” and their parental rights may be terminated based solely on their status as transsexuals. The Americans with Disabilities Act specifically excludes transgender people from protection. Transgender people may be abused and denied access to hormones in prisons. Changing the gender marker on birth certificates, licenses, and passports is difficult and even if these documents are changed, it may have no legal significance. Insurance policies generally exclude coverage for medical transition.
A bright spot in the country, Massachusetts case law protects people’s gender identity and expression under the categories of sex and disability. Thaler noted that although family law remains an area unfavorable to transgender people, there have been gains in the area of employment discrimination. Federally, sex discrimination under Title VII has been interpreted to include transgender people since they do not conform to sex stereotypes. Six states currently include gender identity and expression in their general nondiscrimination laws. Many states also include gender identity and expression in their hate crimes laws, although such protection is not currently included in pending federal hate crimes legislation.
Asked about controversy within the transgender community about seeking protection under disability because it is potentially stigmatizing, Thaler pointed out that seeking to avoid the disability label perpetuates the stigmatization of those with disabilities.
In his talk last Monday, Scott detailed the problems with looking to genitals to determine someone’s legal sex. Such surgeries are typically not covered by insurance so they are often cost prohibitive. There is also no guarantee of retaining sexual function. Most female-to-male transsexuals do not undergo genital surgery in part because the results are much less satisfactory than with female-to-male genital surgeries. Some transsexual people also do not feel the need to have surgery.
Nonetheless, when looking to determine someone’s sex, courts often focus on someone’s genitals. It was the case of Michael Kantaras, a Florida man who sought custody of his children in a divorce case that resulted in the 800-page opinion. In an effort to determine whether or not his marriage to a woman was valid, the court had to decide if Michael, a transsexual man, was a man or not. Testimony revealed that Michael was mentally, socially, and by and large traditionally physically male. Although he had a male passport and birth certificate, the appellate court overruled the trial court and held that Michael was not male for purposes of marriage and therefore his marriage was void ab initio.
Thaler aims to move the law away from focusing on things like surgeries and hopes that courts will come to recognize that someone’s gender identity is a deeply held component of an individual’s identity that should not be subject to judicial determination.
When asked about the utility of impact litigation in advancing social change, Thaler noted that he did not believe impact litigation could occur “in a vacuum” and that the law is but one tool in the arsenal. Similarly, Scott noted that “it’s the work of law students that helps transgender activist organizations move forward.”
Commenting on the burgeoning transgender rights movement, Scott said, “some people think there are more transgender people today, but we’re just better organized.” He credits the internet with allowing transgender people to find one another.
As evidence of the increasing visibility of transgender people, Harvard Law School is offering a seminar on transgender law next spring taught by Professor Janet Halley and Dean Spade, founder of the Sylvia Rivera Law Project, which is dedicated to serving the needs of low-income people of color who are transgender, intersex, or gender non-conforming.
- Understanding Gender Terminology
Transgender – an umbrella term for people who transgress gender norms or cross society’s idea of gender lines. Transgender is about gender identity and gender expression, not sexual orientation. Transgender people can identify their sexual orientation as heterosexual, gay, lesbian, bisexual, etc.
Gender – Self-expression, actions, behavior, dress, grooming, etc. related to culturally prescribed norms for the categories of male and female.
Gender Identity – Inner sense of being male or female, both, or neither. Includes sense of self and one’s image presented to the world. A self-identification.
Assigned Sex/Gender – Based on physical anatomy of genitalia. One’s assigned gender is frequently assumed to be in accord with one’s biological sex, although this is often not the case.
Intersex – a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male. For example, a person might be born appearing to be female on the outside, but having mostly male-typical anatomy on the inside. The vast majority of intersex people are not transgender.
Some different types of transgender people:
Transsexual – person whose gender identity does not match the gender that was assigned to them at birth. They transition and live full time in a different gender. They generally seek the use of hormones and surgery to bring their sex in line with their gender identity.
FTM – female to male transsexual man
MTF – male to female transsexual woman
Genderqueer – people who identify their gender outside of the binary categories of male and female, for example, identifying as neither man or woman, identifying as both, etc. They may have a fluid or non-conforming gender presentation and may use masculine, feminine, or gender-neutral pronouns such as ze and hir.
Cross-dressers – person who wears clothing opposite their assigned gender, usually not all the time. Does not identify as the opposite gender identity.
Gender Non-Conforming People – anyone whose gender expression does not match stereotypes of how men and women are “supposed to” look and act. Some identify as transgender and others do not.
Adapted in part from a Massachusetts Transgender Political Coalition handout.