Oh Canada!

Recently, a friend forwarded me a link to this blog post by Katrina Rose, who teaches history at the University of Iowa.  Ms. Rose appears to believe that my colleague and I owe her answers to questions she poses on her blog, despite the fact that answers to her questions readily appear on our own blog and elsewhere.

However, she raises an interesting real-life set of facts that illustrate the concerns raised in our submission to the United Nations and the
objective definition of “gender identity” we believe responsible GLBT Organizations should advocate.

Ms. Rose asks:

“Should this person have been allowed to volunteer as a rape crisis counselor at rape relief center that only allows women to be rape crisis counselors? Should this person be allowed to use women’s restrooms?”

First, who is this person? Kimberly Nixon is a post-operative transsexual woman who unsuccessfully pursued a case against Vancouver Rape Relief, an organization that provides direct service to females traumatized by sexual violence, over the organization’s unwillingness to allow Nixon to volunteer as a rape counselor.

So, should VRR have allowed Ms. Nixon to volunteer as a rape counselor?

First, we believe it is important to note that Nixon v.VRR is a Canadian decision applying Canadian law. We do not claim to know Canadian law, nor are we admitted to practice law in Canada (and, to our knowledge, neither is Katrina Rose).  Other countries have different legal traditions than those in the United States, and any analysis that fails to account for these varying legal traditions strikes us as chauvinistic, at best.
That said, for the sake of argument, let’s assume that Ms. Nixon sought employment (not a volunteer position) at a similar type of organization in a hypothetical state that adopted the definition we advocate in our UN Submission.  That definition provides as follows:


“Gender identity” means a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, or related condition, as
deemed medically necessary by the American Medical Association.

Nixon, as a post-operative transsexual, easily satisfies the requirements to assert “gender identity” asa basis for protection from discrimination in employment – in other words, she is one of *the persons* our definition seeks to protect.  She has demonstrated that she falls within the
specific class of people we believe “gender identity” laws should protect, and she clearly falls within the objective definition we advocate – a definition designed to balance the rational need for sex-based protections for females with the need of transgender people to operate in a world free from irrational discrimination.  A jurisdiction using our proposed definition of “gender identity” to ban discrimination in employment would protect Nixon.  If that’s the question Ms. Rose meant to ask, I would expect her to be happy with that conclusion.

Now, recall that Ms. Nixon did not seek employment in her case. Rather, she sought to volunteer as a rape counselor. The court explained:

“This is quite a different case from, say, Ms. Nixon being excluded from a restaurant because of her transsexual characteristics. Unlike a for-profit business providing services or recruiting employees from the general public or a volunteer organization open to all, Rape Relief defined itself as a women only organization with the express approval of the state …”

Further, the court notes that:

“Rape Relief’s exclusion of Ms. Nixon from its club-like sisterhood cannot be equated with legislated exclusion from entitlement to public benefits … in terms of its objective impact on human dignity.”

Looking at Canadian law as described in the Nixon case, Canadian law makes a clear and important distinction between for-profit business
ventures or access to public benefits, and an organization whose primary purpose is the “…promotion of the interests and welfare of an identifiable group or class of persons…”  So, under Canadian law, it appears that not only is the definition of the person’s
membership in the class at issue, but different contexts justify different considerations in regard to individual entitlement.  I suspect that this isn’t a result Ms. Rose and other advocates of eviscerating sex-based protections for females would support, but that’s Canada for you!  Take it up
with the Canadians.

Next, Ms. Rose asks whether Ms. Nixon should “be allowed to use women’s restrooms?”

Again, under the definition we advocate in our UN Submission, a public restroom in a jurisdiction that banned discrimination in public accommodations (including sex-segregated facilities) based on “gender identity” as we define it could not lawfully exclude Ms. Nixon from the women’s restroom.  Because she has sought medical intervention to guide her transition from male to female, she can assert
“gender identity” as a basis for access to sex-segregated public accommodations like women’s restrooms should she encounter discrimination when she seeks such access.

We encourage reasonable debate on these issues, and we encourage reasonable persons to read the FAQs on this blog, and to submit a question for our FAQs if you have a question that hasn’t been asked and answered.

But Laurel Ramseyer Says This Violates the Fourth Amendment

Laurel Ramseyer stated on a now-deleted post on Pam’s House Blend that the narrow definition of “gender identity” will allow private citizens to do PANTY CHECKS in violation of the U.S. Constitution!

Specifically, she stated: “The most obvious deficiency with this definition is that it would presumably allow any women in or near a public bathroom to become ‘panty police’ and make a ‘show me your papers’ demand of any other woman entering the bathroom. When a suggested alternative to a legal definition of gender identity that has worked well for decades rubs up against the Fourth Amendment (unreasonable search), we’re solidly in the realm of fantasy.”

Oh dear.

First of all, rubs up? Really Laurel?

What would Freud say?

We have much unpacking to do with this one.

What does the Fourth Amendment say? It says:

Unreasonable searches and seizures.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ok. What does this mean?

It means that the Fourth Amendment forbids the government from conducting “unreasonable searches and seizures.” This means that a law
enforcement person cannot come into your home or search your clothing without your consent or a search warrant (with some exceptions, like an emergency). The Fourth Amendment only protects your places or things from unreasonable searches and seizures by the government in which you have a “reasonable expectation of privacy.”

Why did we emphasize government?  Because if there is no government action, there is no “Fourth Amendment” claim, and the idea of panty checks is hilarious. And gross. And seriously, at least one of us gets questioned in the ladies room regularly. The conversation goes like this:

Straight Lady: Um, this is the Ladies Room.

Cathy Brennan (or any not straight looking lady): Yes, thanks I know.

Straight Lady: *Quickly dries hands and leaves*

OMG! What an “infringement”!!!!! Yes, search and seizure indeed.

Living in a civil society is inconvenient sometimes, because there are million of people in the world with their own wants, needs, demands and desires.  Law making is about compromise, and anti-discrimination laws banning discsrimination against one group should not completely subvert protections for another group.  To the extent possible, activists should advocate for protections that do no harm to other groups.

The definition of gender identity we propose limits the people who can assert it to people of trans* experience.  We want to protect these
people. We also want to protect females.

In most cases, the conversation will go as it goes now – as, presumably, people of trans* experience use the sex-segergated facility most comfortable for themselves now, regardless of whether there’s a law that gives them a cause of action for discrimination.

Here are cases that elaborate on the “NO STATE ACTION” problem with Laurel’s legal analysis.  You can skip this if you believe what we
wrote above.

The Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative.  Skinner v. Railway Labor Executives’ Ass’n , 489 U.S. 602, 614 (U.S. 1989).

Without proving state action, employees could not claim that employer by terminating their jobs for failing drug test violated Fourth Amendment prohibition against unreasonable searches and seizures in contradiction of decisions holding drug tests unconstitutional. Ritchie v Walker Mfg. Co., 963 F2d 1119 (8th Cir. 1992).

A husband and wife’s claim under 42 U.S.C. § 1983 for a Fourth Amendment violation, alleging that defendant police officers’ assault of husband was unprovoked and involved use of excessive force could not stand where evidence did not support finding that they acted under color of state law as they were off duty when altercation with husband occurred. Barna v City of Perth Amboy, 42 F3d 809 (3rd Cir. 1994).

Court rightly dismissed an employee’s Fourth Amendment claim against his former employer and a private physician.  The employee claimed a Fourth Amendment violation after the employee was escorted to hospital for mental evaluation following his termination where neither employer nor physician were state actors. Andresen v Diorio, 349 F3d 8 (1st Cir. 2003).

Life is sometimes INCONVENIENT, especially if you are someone other than a white male.  We know this. We want to affirm
everyone, and we want everything to go smoothly in society for everyone, but when your (gender identity) stuff “rubs up” on our (sex) stuff, we are going to push back!

Panty checks! Papers at the bathroom door!

No. Nothing is going to allow panty checks, or violate the Fourth Amendment (which doesn’t even apply), or require papers at the bathroom door! The ‘gender identity’ legislation we are talking about, and have cited to, is relevant to civil rights causes of action fordiscrimination.

In most states it is not a crime, or even a statutory violation, to enter the bathroom designated for the sex opposite one’s own. This will not change.

No one can stop you from using whatever sex-segregated facility you want. We are simply arguing that no one should have an actionable right in court to claim that ‘gender identity’ discrimination trumps sex in sex-segregated spaces without some serious gating on the definition of ‘gender identity.’

Transgender vs transsexual

Many, many people have asked about our views of pre-ops and post-ops. Let’s review the suggested language in footnote [xxix] to our UN submission:

We support the following definition of “gender identity” – a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence, including but not limited to medical history, care or treatment of a transsexual medical condition, or related condition, as deemed medically necessary by the American Medical Association.

The definition says nothing about surgery, or pre-op or post-op status. It simply says treatment of a transsexual medical condition. People of trans experience require medical treatment to physically transition to the sex opposite their assigned-at-birth sex. This means a female-to-male trans person will want to obtain testosterone, which he can only do legally with medical intervention. This also means that a male-to-female trans person will want to obtain estrogen, which she can only do legally with medical intervention. In other words, our definition of “gender identity” covers all people of trans experience who are dedicated to transitioning and therefore rely on medical professionals to aid their transition.

Why should anyone listen to two feminist lesbians about trans anything?

We’re female. Females are 50% of the human population. Our concerns come from a specifically female point of view (not a libertarian or a trans-centered one). Our arguments stress the need for sex-segregated spaces. We believe that females have a right to these spaces, free from males. When cross-dressing males, who have not sought medical treatment and/or who do not intend to transition, demand access to sex-segregated spaces on the vague basis of a feminine ‘gender identity,’ that is an infringement on our rights. So this is not a hate-mongering, ignorant, or disingenuous attempt to deny trans people anything. We seek to protect women’s right to sex-segregated spaces free from non-trans males.

Where’s the evidence of harm? You have not demonstrated the harm that has come to females in states that have adopted ‘gender identity’ legislation!

Anecdotal evidence is not needed to legitimize our criticisms about overbroad definitions of ‘gender identity.’ Here is our point: male persons have cross-dressed in order to gain access to sex-segregated spaces with the specific intent to harm females. This has happened. Many times. That’s all we need to know.

Where a harm is foreseeable, it is potentially preventable. And if not actually preventable, then at least we can create a public policy against it. That is the purpose of law. Females, in particular, need laws. For example, a restraining order is just a piece of paper that could not possibly protect a body from attack, but we still need laws that prohibit stalking behavior. Similarly, in our UN submission we argue that:

Females require sex-segregated facilities for a number of reasons, chief among them the documented frequency of male sexual violence against females and the uniquely female consequence of unwanted impregnation resulting from this relatively common form of violence. Public policy, therefore, rationally permits sex segregation in certain settings where a reasonable expectation of privacy exists.

As such, we take specific issue with overbroad legislative language and the foreseeable harm to women that can arise from the refusal to make any legal distinction between sex and ‘gender identity’ in the context of sex-segregated spaces. We advocate for legal screening of unfettered male access to sex-segregated female spaces on the basis of a purely self-reported ‘gender identity,’ expression, or appearance. We propose that this be done by requiring medical evidence.