Bathroom Bills and Your Right to Wee, According to Your Gender Identity(ee)

Bathroom bills are on the march across the United States.  Most of the states pursuing these “bathroom bills” are based in the South or Midwest of the country.  However, they may not be exclusive to these areas.  Either way, it is very disconcerting.

The gist of the “bathroom bills” is a ploy to allow discrimination against LGBTIQ based upon an exercise of “religious freedom”, “privacy issues”, and imaginary “safety issues”.  Most are sponsored by organizations that are virulently intolerant of anyone who is perceived as “not straight.”  Religion might be in their name, but it is historical patriarchal mechanisms which they are really supporting.  Thus, it is a structure that cannot tolerate any threat to loss of power or influence at it’s core.  This structure must constantly renew itself through immersion of people (aka students) into its values.  One way to do that is to engender fear and suspicion in the community (aka school) of anyone who is different.

This brings us to the issue of lawsuits and bathroom use for transfolk who are school-aged students, especially for middle and high school.  It brings up issues of support, rights, and safety, not only for the trans student, but for all students of every stripe, color, creed, race, gender, and orientation by restricting a student due to a trait or feature about said student(s).  Hence, it can be the beginning of a long and winding road of discrimination of class(es) of people.

One particular lawsuit in Virginia is winding its way to a possible Supreme Court showdown.  It is one in which there is a strong likelihood that the suit will be returned to the states due to the new Trump administration and their penchant for “traditional values”.

I don’t want to be a wet-noodle or a Debby Downer, but the efforts to secure a right to use the bathroom matching one’s gender identity is about to go on pause for a while in some states, and that would likely include Virginia.

I’m an old transwoman of over 20 years. I also counsel as an MFT those who are closeted or keeping secrets, or in an inquiry into their identity. These are not easy things to address.

Suing in federal court to identify a “right” to not be discriminated due to gender identity has moved forward by linking such suits to Title IX clauses prohibiting sex discrimination.  This linkage is thanks to the Obama administration creating rules with executive orders which altered the interpretation of sex to include gender identity.  A very logical and appropriate development, in my view.   But, forgive the pun, this area of law is still quite fluid. 

However, with this new Trump administration I believe it is extremely likely that these rules will be removed. In that case, pursuing nondiscrimination based upon gender identity does not necessarily have federal backing. And that means these battles against discrimination will return to the state level.

A law professor of mine once said, regarding suing for discrimination, that if you file suit, you better win. Because if you don’t win, you’ll not only be hurting yourself, but the entire class of people just like you.

Tread carefully. Work with the school districts to avoid going to court unless it is absolutely necessary. Consider accepting a compromise that does not demean, shame, or invoke suffering, especially if the motive of the school district is really about doing their best to protect and respect the trans student, as well as deal with other parents who act out of fears, not facts. Most of all stay safe.

Or as my father used to tell me, “It might be YOUR right. But don’t be DEAD right.” Good advice.

20 years ago when I came out, facing myself, and facing others, I made compromises in order to survive. There were no laws protecting Transfolk from any kind of discrimination.  In order to allay others’ fears. In order to keep my job. In order to have a place to live.  And in time people came around and wondered what all the fuss was about. I don’t want any of us to go back in time. But I don’t want anyone hurt, injured or killed either.

Lastly, do not take this as surrender or appeasement.  One must pick their battles while also maintaining their ability to function in the greater society.  It is sometimes a long and slow trudging process.  Moving forward is often done in small steps, through being real and allowing people to know you, and you getting your message out there in how you live your life, and how you speak about your life.

The Accidental Activist [vanityfair.com]

She appeared to be the perfect plaintiff in a case that changed America’s political landscape: Roe v. Wade, decided by the Supreme Court 40 years ago this month. But Norma McCorvey, now 65, was never what she seemed: neither as the pregnant Texas woman who won fame as abortion-rights icon “Jane Roe,” nor as the pro-life activist she would become.

by Joshua Prager / vanityfair.com

It is a spring night in rural Texas, and crickets sing as a woman in her 60s with broad shoulders and short brown hair stops a pregnant young woman on an empty sidewalk. The older woman has heard that the younger woman, her neighbor Lucy Mae, may be seeking an abortion. “You don’t have to do this,” she says, her brown eyes and long loose cheeks filling with emotion. “Children are a miracle—a gift from God!”

The women are performing a scene in Doonby, a movie about a drifter who awakens a sleepy Texas town to its spiritual possibilities. The movie, tentatively set to be released this year, is directed by Peter Mackenzie, a Catholic filmmaker from Britain. It stars John Schneider, best known for The Dukes of Hazzard, who is a born-again Christian.

The older woman is born-again, too. Her name is Norma McCorvey. She is not a professional actress. But back when Nixon was president, McCorvey landed the role of a lifetime: that of “Jane Roe,” the plaintiff in what would become one of the most divisive legal actions in American history.

Forty years ago, on January 22, 1973, the United States Supreme Court ruled in Roe v. Wadethat women had the right to an abortion “free of interference by the State,” as Justice Harry A. Blackmun wrote in the Court’s majority opinion. The decision greatly expanded the legal boundaries for abortion in the United States, allowing women to terminate a pregnancy at any point during the first 24 weeks—that is, through the first and second trimesters. (Roe did, however, permit states to impose regulations in the second trimester, including who could perform abortions and where. It also gave states the right to ban most abortions in the third trimester.)

McCorvey, under the pseudonym Jane Roe, had brought the precipitating lawsuit in 1970, when she was pregnant for a third time and living in Texas, where abortion was prohibited unless the life of the pregnant woman was threatened. (The Wade in Roe v. Wade was Dallas County district attorney Henry Wade, the named defendant.) Roe v. Wade was a watershed legal ruling. But it also helped to turn abortion into the great foe of American consensus. Subsequent cases have made it clear that the Supreme Court majority in favor of abortion rights has been eroding, from 7 to 2 in Roe to 5 to 4 in cases decided in more recent years (with the majority deciding against abortion rights in a number of cases). Roe is undoubtedly the most familiar legal ruling in the minds of most Americans—not for nothing did Katie Couric ask Sarah Palin in a 2008 interview to cite any Supreme Court case except that one. But few people know much about the woman who prompted the ruling in the first place.

Norma McCorvey, now 65, has presented a version of her life in two autobiographies, I Am Roe(with Andy Meisler, 1994) and Won by Love (with Gary Thomas, 1997). In McCorvey’s telling, the story is a morality tale with a simple arc: An unwanted pregnancy. A lawsuit. Pro-choice. Born-again. Pro-life. Peace. The truth is sadder and less tidy. And with the help of a cache of documents retrieved two years ago from the clutter of a Texas home she had abandoned, as well as interviews with people once close to her, the story can be more accurately told.

Click to read the rest of the article…

11th Circuit Court: Transgender Discrimination Is Sex-Based Discrimination [thinkprogress.org]

By Zack Ford on Dec 6, 2011 at 2:22 pm

A Georgia transgender woman has won her appeal that she was illegally fired for planning to make her gender transition. Vandy Beth Glenn had been a legislative editor in the Georgia General Assembly, but her supervisor, now-retired legislative counsel Sewell Brumby, testified that he found the thought of her transition “unsettling,” “unnatural,” and something that others would view as “immoral.” An 11th Circuit panel ruled that her termination constituted sex discrimination and the decision could have a far-reaching impact on protecting the rights of transgender people:

In each of these foundational cases, the Court concluded that discriminatory state action could not stand on the basis of gender stereotypes. The Court’s more recent cases reiterate that the Equal Protection Clause does not tolerate gender stereotypes. Accordingly, governmental acts based upon gender stereotypes–which presume that men and women’s appearance and behavior will be determined by their sex–must be subjected to heightened scrutiny because they embody “the very stereotype the law condemns.”

We conclude that a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.

The state could still appeal this decision to the full 11th Circuit or the U.S. Supreme Court.

It is worth noting that all three judges on the panel concurred, including Judge William H. Pryor. Pryor’s nomination to the bench was opposed by LGBT groups, who noted that he had filed an amicus brief supporting sodomy laws in Lawrence v. Texas. He also cast the deciding vote to oppose hearing a challenge to Florida’s law that banned gay people from adopting.

http://thinkprogress.org/lgbt/2011/12/06/383107/11th-circuit-transgender-discrimination-is-sex-based-discrimination/

Judge Decides Transgender Widow’s Marriage Was Illegal [jezebel.com]

Margaret Hartmann – A Texas judge has announced that he plans to nullify the marriage of a transgender woman whose firefighter husband died in the line of duty, on the grounds that they had an illegal same-sex marriage. His family is fighting the widow for inheritance, but the case is also a setback for transgender rights in the state.

Nikki Araguz, who was born Justin Graham Purdue, married Thomas Trevino Araguz III in 2008, and had had a sex change operation two months later. Thomas died while fighting a fire last summer, and now his family and ex-wife, Heather Delgado, are now battling his widow for $600,000 in death benefits and assets, according to the Associated Press. They argue that the inheritance should go to Thomas’ two young sons from his marriage to Delgado because his marriage to Nikki was never valid.

In a draft order issued on Tuesday, District Judge Randy Clapp said he’s found that “any marriage between Thomas Araguz and Nikki Araguz was void as a matter of law” and Thomas “was not married at the time of his death.” At issue is when Nikki legally became female, and when when Thomas found out she’s transgender. In an interview with 20/20Nikki says she told Thomas that she was born male a week into their relationship, and he supported her during the process of getting a sex change operation. His mother, Simona Longoria, and Delgado paint Nikki as a con-artist, and claim Thomas only learned Nikki’s gender history shortly before his death, and was totally shocked. They say after he found out he immediately moved out and planned to get a divorce. Longoria and Delgado claim they were duped by Nikki, but it seems they’re actually having a hard time accepting that Thomas chose to marry a transgender woman and didn’t tell them about her past. Their argument is ridiculous; They seem to think Thomas simply didn’t pick up on any signs that Nikki once had male genitalia, even though he had been to her childhood home where photos of Justin hang on the walls, had a sexual relationship with her, and was married to her while she had a sex change operation.

According to the Houston Chronicle, Nikki’s lawyer argued that her marriage was legal because the Texas Family Code allows transgender people to obtain a marriage license if they’ve had a sex change recognized by the court (Republican legislators are working torepeal this law). The family’s attorney countered with a 1999 Texas case that says a person’s chromosomes, not their genitals, determine the sex at birth.

Nikki had her California birth certificate reissued shortly after Thomas’ death to say that she’s female. The family’s lawyer says this is irrelevant because, “At the time of the marriage, Ms. Araguz was a man.” However, Nikki’s attorney says the document reflects that she was always female. “For all purposes, she’s female going back to the date of her birth,” he says. “She could have gotten that (reissued) birth certificate at any time in California.” Obviously the judge disagrees, but Nikki says she plans to appeal and is willing to take the case to the Supreme Court if necessary. She adds, “With this ruling I continue to be reminded of the bias that exists toward transsexual and intersex people ignoring the laws of Texas that recognize their medical and surgical transition.”

Lawyer: Transgender Widow’s Marriage To Be Voided [AP]
Texas Judge Set To Rule On Validity Of Firefighter’s Marriage To Transgendered Woman, Death Benefits [ABC News]
Judge: Transgender Widow’s Marriage To Firefighter Not Valid [Houston Chronicle]
Wharton Judge Rules Against Nikki Araguz [Dallas Voice]

Earlier: Texas May Ban Transgender Marriages

http://jezebel.com/5805771/judge-decides-transgender-widows-marriage-was-illegal