HRC: What the Fuck?

In the USA, the Human Rights Campaign, or HRC, is the leading gay rights group, at least in terms of how much airtime and money they manage to get. They currently claim to be trans-inclusive, and to support transgender rights, although they have a history of fucking up in many ways. But their mission statement includes, “The Human Rights Campaign is organized and will be operated for the promotion of the social welfare of the lesbian, gay, bisexual and transgender community.”

Every few years, I try to give them the benefit of the doubt, that they aren’t just a self-serving part of the charity-industrial complex focused more on donations than actual work. And they always, consistently demonstrate they are unworthy of it.

Their flagship “product” is the Corporate Equality Index. This index is intended to encourage companies to treat LGBT people as, oh, human beings.  Companies are rated based on a bunch of criteria, such as having non-discrimination policies, and, importantly in 2015, whether or not they provided health care benefits that included benefits transsexual employees require. It gets a lot of attention and does generate real change. But it has some problems.

Some companies got a perfect score, like United Health Care. These companies are supposed to be the models of LGBT inclusion – they have good policies and practices, and are good corporate citizens when it comes to LGBT issues. In fact, they are perfect!

Other companies, such as Exxon, do much worse.  Exxon received -25 – yes, negative 25 (the link to their database indicates “0” points, but their actual score is listed, along with reasoning, in the HRC full report).  You can read more about why here.

When looking at my own employer (which I will not name here out of concerns for my privacy), I note that my company did not achieve a perfect score in part because they lack trans-inclusive health care benefits. Fair enough, they should rightfully get dinged for that, and it’s great that HRC is looking for trans-inclusion – hopefully it pushes my employer and other companies towards finding better options for health care.

But here is my gripe…

My employer is not perfect, certainly. They rightfully get dinged for not providing trans-inclusive benefits. But the reason they don’t provide those benefits is that they use a health insurance company that HRC ranked as a ‘perfect’ company.

In this case, my employer uses United Health Care (UHC), who achieved a perfect score because they provide their own employees with health insurance that includes trans-inclusive benefits. But many, if not most, of UHC’s health care plans have an explicit anti-trans statement in them.

Transsexual health care is an a life and death issue. It’s not about cosmetic surgery. It’s not experimental or unproven. For many people, appropriate medical care, which might include sex reassignment surgery (SRS) or other procedures, is an appropriate medical treatment. After surgery, people who sought SRS report significantly higher happiness and significantly lower suicide attempts. The American Medical Association, in 2008, passed a resolution that appropriate medical care should be provided to those who need it. The cost of such care is, roughly, 11 cents per year per insured person for a corporate health plan (from the link in the prior sentence; note that this does not include cost savings that are related to reducing prescription drug costs post-surgery or reduced mental health costs post-surgery – in balance, SRS actually saves money).

From some health care provider information UHC provides on Gender Dysphoria:

SURGICAL TREATMENT FOR GENDER DYSPHORIA

Most plans exclude coverage for surgical treatment for gender dysphoria.

This is evidenced by examining certificates of coverage and evidence of insurance.  For instance, one of Tulane University’s 2015 plans, provided by UHC, contains the following, starting on page 25:

Benefit Limitations

M. Procedures and Treatments

7. Sex transformation operations.

That’s pretty clear.  And that’s not unusual (by UHC’s own admissions).

So, basically, UHC, a company with a “perfect” HRC record for LGBT rights, can offer a plan that rejects the medical judgement of the American Medical Association (and others) for some transgender people, simply because that is a medical treatment that some transgender people require. In fact, Medicare covers SRS (thanks to this decision in 2014, which, rightly, pointed out that you can’t deny a treatment that is proven to be medically necessary, effective, and safe simply because it’s socially controversial).

To put this in simpler form, a company can get a perfect score on the HRC equality index even when they:

  • Actively discriminate against some transgender people (If your medical condition is directly related to being transsexual, we choose not to cover some medical treatment, despite clear and convincing evidence as to medical necessity)
  • Provide products that exclude some trans people (this would be similar to a company providing a “Man and Woman Health Plan” that provided coverage for married straight couples but not for married gay couples)
  • Engage in actions that increase depression, poor quality of life, and suicide attempts among transgender people
  • Is making decisions that greatly harm some transsexual people based on inaccurate and non-scientific rationale (similar to how gays were considered to need reparative therapy, UHC often will pay for counseling – presumably to “learn to live with” the wrong genitals – but not surgery).

In other words, a company that is contributing to the death of transsexual people by their choice to not cover the surgery (despite the extremely low cost, and even cost savings when lifetime mental health costs are considered).

Now UHC is not the only insurer to do this, nor are they the only company with a perfect score on the HRC Equality Index that do this. It’s a major problem throughout the insurance industry. Sometimes, when you ask if things are covered by a company, you’ll hear terms like “experimental” and “cosmetic” to describe surgery (this is inaccurate and not based on the modern science, according to respected groups like the American Psychological Association, American Medical Association, and WPATH). Other times they won’t give a reason. And, often, you’ll hear the most disingenuous response: “We offer many plans that provide coverage for these procedures.”  UHC and other insurance companies do have good plans that do not have this exclusion – but in general, most plans have it, and the only times that plans won’t have this exclusion is when there is outside pressure (“Our Fortune 500 company is unwilling to purchase insurance that doesn’t cover this” or “The State requires us to offer this”) – and then it only applies to the specific cases where this pressure was applied, not to other plans. And, since most people get insurance through an employer (either their own or a relative’s), there is a significant financial cost of seeking a different plan if the employer-provided plan doesn’t provide coverage.

As an example, Aetna actually tries to say that they don’t cover trans-related surgeries because of insurance regulations – it would involve changing plans that have been approved by state insurance commissions. Apparently, they want people to think that insurance companies frequently face regulatory sanction because they cover something extra – this is obviously not a particularly credible argument, although I welcome the insurance industry to respond by comment giving case information for when a state went after an insurance company for providing a little more than they said they would.

Moving to include gender reassignment procedures in our plans is consistent with other changes we have made to better serve the needs of the LGBT community,” Aetna said in a written response to The Denver Post. “In 2015, Aetna started covering gender reassignment surgeries for our 33 Aetna plans offered to federal employees. … Aetna also is expanding coverage of gender reassignment surgery in many of our fully insured commercial plans … and will continue to roll (such plans) out over the next couple of years as we refile our plans with the states. We will be introducing the product in West Virginia, Utah, Idaho, Missouri, Wyoming, Nebraska, Iowa, Louisiana, South Carolina (for our fully insured plans) this year.

The above is from a Denver Post article that is quoting a statement from the insurance company. They also told the post they support the LGBT community, which is interesting considering they are actively refusing to provide some treatments when people need them because they are T.  Perhaps Aetna should refine their statement to say they support the LGB community. Aetna is meanwhile merging with Cigna – Cigna has some of the strongest anti-trans exclusions in the industry, with plans even prohibiting hormones for trans people.

Who can you support, if not HRC?

I encourage people who might want to support the LGBT community to support organizations that do not reward companies that are actively discriminating.

In particular, you may look into the Transgender Legal Defense and Education Fund. Another worthy cause is the True Colors Fund (they fight LGBT youth homelessness). You also should look both locally (your local transgender support organization almost certainly can benefit from any help you can provide) and in places in the country where trans people face particular prejudice and where your time or money may make a huge difference (for instance, the midwest or deep south). Trust me, there are plenty of pro-T groups that you can support without needing to send money to HRC. The need is far greater than any of our pocketbooks or volunteer schedules.

A Footnote

As an aside, I would implore others concerned about the coverage of SRS and any other treatments to be very careful in how they approach de-medicalization of transsexualism (which is one specific category of trans people). There are many trans people who do not need medical treatment, and it is important to recognize that many trans people do not have a medical condition, nor do they need or benefit from medical treatment. But it is also important to recognize that other trans people do have a medical condition that is treatable medically – and this is not mere personal choice or desire. In this way, some transsexual people differ from gay people – there is no medical treatment that is appropriate or needed for homosexuality, and homosexuality is not a medical condition, but there are various medical treatments that are medically appropriate and necessary for some transsexuals.

Not all trans people want or need certain surgeries. There is tremendous variation among trans people. Some may identify as neither gender, both genders, or third gender. Others may strongly identify as one gender, but are comfortable having sex organs that typically are associated with another gender. As always, this should be respected, and when I talk about medical necessity, I am not referring to the people who do not need or desire a particular procedure.

Meritocracies and Women

I wrote my first program around 32 years ago (granted it wasn’t much of a program – I was pretty young!).  So I’ve can talk a bit more about computer history than most.

Right now, in all areas of computing, whether they be gaming, open source, or information technology, and no doubt others I don’t have personal experience with, there’s a problem: everyone I talk to is a guy. For instance, at work, I work on a team with 6 other guys. My boss is a guy. In fact, every boss in my management chain is a guy. We do have a woman on our board. One woman.

Open source is similar. I’ve been active in several open source projects. But I’ve never received a patch from a woman or sent a patch to a woman (yes, I’m making assumptions of gender on the basis of names, so I could be wrong, but probably am not).

But, back to my opening sentence – I’ve been in computing for a long time. I learned about routers, DNS, network cabling, ethernet hubs and switches, etc, from one of my school district’s IT managers – a woman – who made time for an annoying kid interested who was interested in computing. My first boss, at my first computing job was a woman. So was my boss at a second computing job. So was my boss at my third computing job. And so was my boss at my fifth computing job. 15 years ago. I’ve only briefly (for a couple of months) worked for a woman in the 15 years since then. The first 10 years of my work life was pretty much all women, with the exception of one two year stint working for a guy.

15 years ago, the department I worked in was probably 30% women. Today, it’s 0%. That’s a pretty huge change. And lest anyone think I think my company is anti-woman, I actually think it’s one of the least sexist places I’ve worked. Even so, the numbers don’t look good today. Why are there no women at this company I think is probably pretty decent towards women?

What us computer people like to think is that computing – including gaming, open source, and professional IT work – is a meritocracy. If you are smart and work hard, you’ll get rewarded. If you don’t, you’ll be gone. And, for many guys, I believe this is the case – it does work that way. And it used to work that way for women. When someone brings up the lack of women today, inevitably a man who thinks we have no problem with sexism today in computing will do what I did above – talk about the women role models they had, the women who taught them computing, supervised them, and worked along side them. The problem is that the next generation, I fear, won’t have these women. And the other problem is that these women are almost always in the past tense.

I don’t know what happened to the women. But I do know that the meritocracy doesn’t exist, at least not for 50% or so of the population – actually, probably less – a lot less.  I won’t go into how many of my coworkers are white, although I will say I don’t know that the numbers have declined in such a startling way for non-whites as they have for women.  At one point, MOST computer programmers were women.

I’ve heard all sorts of theories to explain how my field doesn’t have a sex discrimination problem. I’ve heard, “Women just aren’t interested in computing.” Perhaps, but the “why” needs to be asked, particularly when they were the backbone of many computing operations not that long ago. What has changed? What hasn’t changed is the ability of women to understand the technical requirements of computing – they understood it fine at the dawn of computing and through the 70s and into the 80s – even somewhat in the 90s, we saw plenty of women working. But that started dropping off at the end of the 90s and has fallen significantly today. I don’t think this can be explained by “math is tough” (see this pdf about wrong assumptions about women in STEM fields).

I don’t think most discrimination is intentionally committed to hold back a minority class, at least not the type of discrimination I see (I’m not saying that doesn’t happen – and it is horrible when it does). No, it’s not a sign on the door that says, “Women need not apply.”  It’s not the post-WWII days when women’s jobs were given back to men:

No, it’s not that kind of discrimination.

What the meritocracy means is that people are rude and aggressive to each other when they think the other’s idea is bad. Men are taught, socially, you respond aggressively back and defend yourself, or you’re a wimp. Women are taught to submit, or their “bitchy” and a “nag.” So who do you think does better in this? Of course being a rude asshole has nothing to do with ability to understand and do technical work – but I’ve seen this in plenty of open source projects, gaming, and professional work (yes, in professional work).

It means that social events outside the office involve drinking. I’ll note that too often rape victims are told that, if they drank, it is their fault they were raped – but even after sending this message (“It’s okay and safe for guys to drink, but women who drink will get raped so it’s their fault for drinking”), we somehow think they’ll want to participate in drinking parties just as much as men do later in life! Because it’s really safe to be around a bunch of drunk men. So the choice is, for someone uneasy about being around drunk men, “Don’t be a team player” or “risk rape” for trying to have a good time. And when they aren’t “team players,” that’s apparently the bad decision.

There are other problems – hours beginning computer professionals are expected to work, types of team building activities, subtle discrimination in school, family friendly policies, etc. And of course there are plenty of men affected by companies that expect all computer people to enjoy aggression, competition, drinking, long hours at work, etc. But sometimes these “great environment” perks impact women more then men.

To many of us in computing, getting a chance to learn and meet people at a conference is a wonderful perk! A good boss will pay your way! Unfortunately, even here, women face problems. If you’re a woman, maybe a board member of a really important open source organization, you might be sexually assaulted at your organization’s conference – and then told it was your fault (she got some pretty awful comments about how she brought this attack on and it was, essentially, her fault). This is a reward to your good employees – a chance at being raped. I know plenty of women go to conferences and have a great time, but I’ve never heard of a guy getting sexually assaulted at a computer conference. It’s definitely not unheard of for a woman to. And I suspect if a guy was assaulted, the reaction wouldn’t be, “You wore a skirt, what do you expect?”

It’s far more than this, though. I can’t list everything, and I certainly don’t understand all the ways we subtly make it clear that computing is no place for a woman. But I can spot a problem. And we have a problem.

Instead of pretending we have a wonderful meritocracy, maybe we can try to be polite to each other and encourage people who are interested in growing, but have wrong ideas (I can’t think of any of my mentors who treated me like I see too many young up-and-coming programmers treating me – thank God!). Maybe we can actually think about the team building activities we do and think, “Is this something everyone – even people who don’t want a competition or an aggressive experience – will enjoy?” (I know plenty of women would be fine with competitive, aggressive team building – but plenty aren’t, and plenty of men aren’t, either).  Maybe you need to think about what it means to be coworkers and a “cohesive” team – does it mean everyone should be “one of the frat boys” or does it mean “we respect each other, help each other, and grow each other?”

But even more than listening to me rant about this…you can try something that would be effective: you might try listening to an actual, you know, woman. You can find plenty of their stories online and offline about why computing is and isn’t welcoming to them. And then you can think, “Are the things that aren’t welcoming so important to us that we are willing to create inequality?” It’s not about not being a sexist pig. It’s about recognizing how actions not intended to be sexist or discriminatory can in fact disrupt our meritocracy.

Dude, Your Racism is Showing

There’s something missing in all this discussion of Duck Dynasty. There’s something missing from the response by National Organization for Marriage, the American Family Association, and Ted Cruz (up-and-coming Republican star and current US Senator) to the suspension of Phil Robertson from his TV show on A&E. Even Sarah Palin and Louisina Governor Jindal have spoken out against the suspension of Phil Robertson.

If you listen to these people, the suspension of a media personality from a television network is something straight out of a totalitarian regime. It’s political correctness and silencing of dissent. All for just speaking the “Christian” view of gays.

There’s a bunch wrong with the responses. I’ll start with the lessor problems first. The very people and organizations criticizing A&E for suspending someone that works for them is now wrong. Yet these are the people that believe religious people should be able to violate any law they disagree with, to not serve blacks, gays, or anyone else they don’t like – the right to refuse service and all. But let’s ignore that, as it’s a nuanced subject that the right wing doesn’t understand – they don’t understand the history of discrimination which created the Civil Rights Act and other non-discrimination laws.

So, let’s move onto other problems. It goes without saying, it seems, that the Christian view of gays is that they are going to hell, should be stopped by society, and are acting out of choice. But of course that’s only the views of some Christians, but hardly a defining doctrine of Christianity, no matter how much the loud bigots want to make it one. Plenty of other churches have moved past this bigotry, just as they moved past other bigotries in the past. Christianity isn’t one thing, and you should always be suspicious of anyone who claims a major religion is united in belief – particularly about a social issue that society remains divided on.

And I will say that Phil’s remarks on gay people were plenty deshabille, wrong, and just plain ignorant. If ignorance passes for speech that lobby groups and politicians are seeking to protect, we are in trouble. But I’m not going to repeat those remarks – they are easy to find through Google.

And, finally, the last minor point, before I get to the meat of what I want to say, is that being suspended from A&E is not a violation of anyone’s free speech rights. Phil can continue to speak his ignorant mind. And A&E can choose to suspend him. This is not a conflict – in fact, A&E is exercising a form of speech as well, by showing opposition to Phil, as any citizen or group of citizens is allowed to do. Free speech was never intended to be speech without consequences. It was protected from government interference, not private organizations choosing to not employ the speaker. Nobody I’ve seen is seriously calling for Phil to be sanctioned by the government or to be jailed or otherwise deprived of his freedom.

But, no, that’s not the meat.

Here’s the meat of my concern: All this right-wing chest thumping about freedom of speech and religious persecution is ignoring something else that was said. None of these people are shouting from the rooftops that Phil’s ignorant and racist statements about blacks are okay, or that A&E should employ someone speaking racist shit.

Yet, racist shit is exactly what Phil said – in addition to the aforementioned anti-gay shit. During the same event where he faced criticism (rightfully) for his ignorant views of gays, he said some ignorant things about blacks – despite, by his own admission, living during a time period and around the very people discriminated against. He said,

I never, with my eyes, saw the mistreatment of any black person. Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field…. They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word!… Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.

That is from the same article about his interview with GQ – read it for yourself here.

There’s a lot wrong with this in just a few words. Perhaps that’s why the NAACP has spoken out against Phil’s statements! No, not perhaps. You bet that’s why they did. Rightfully.

I’m wondering what is meant by “pre-entitlement.” Perhaps he means, “Pre-Civil Rights Act of 1967.” That’s the one that said Blacks didn’t need to sit at the back of the bus (or get kicked off entirely, at the driver’s whim). Or that Blacks could drink from the same water fountain. Or that blacks could vote. Perhaps he means “Pre-Brown v. Board of Education” and the entitlement to a decent education. Perhaps he means the time before people of all races were entitled to vote. Or perhaps before they were entitled to marry someone of another race.

And, even more concerning: Why are people not calling these right wing groups out on their support of racism? It’s bad that they are saying anti-gay shit. And they should be called out for that. But supporting racists is also worthy of being called out on. It’s every bit as offensive to discount the discrimination faced by blacks as the discrimination faced by LGBT people.

“Injustice anywhere is a threat to justice everywhere” — Martin Luther King, Jr.

Defending Marriage of Cousins and 14 Year Olds

The right wing in the USA is defending us against gays marrying. And also the threat of trans kids not being accepted by their schools (see the actions of the National Association of Marriage).

But there’s a few things they don’t campaign against.

14 year old marriage, for instance.

There is no minimum marriage age in Maine. There is a requirement for people under 16 years old (who could be marrying a person of any age) to go through a court hearing, but, in theory, a 6 year old could marry in Maine. This is not unusual – several states have similar laws.

Or, until recently, Kansas. Now you have to be 15. This was enacted after a 14 year old from Nebraska was married to an adult, also from Nebraska, in the jurisdiction of Kansas.

Lots of states let 16 year olds get married. Ohio may have one of the strangest – the age is 18 for men, but 16 for girls (with consent of parents). That’s not the strange part – lots of states have had different ages for males and females. The strange part is the section about how a Juvenile Court can give consent for the 16 year old girl:

3101.04 Consent by juvenile court.
When the juvenile court files a consent to marriage pursuant to the juvenile rules, the probate court may thereupon issue a license, notwithstanding either or both the contracting parties for the marital relation are under the minimum age prescribed in section 3101.01 of the Revised Code. The license shall not issue until section 3101.05 of the Revised Code has been complied with, and until such child has been born, or it is found beyond doubt by the juvenile court that the minor female is pregnant and intends to have the child.

Yes, that’s right. She should be pregnant and not intending to abort. Thank you, Ohio, for letting children marry, but only when they don’t believe in abortion. Abortion is wrong, after all, but it’s not wrong for a kid to marry (yes, that’s sarcasm).

As I said, age based on sex is not unusual. But New Hampshire has this gem:

RHA 457:4 Marriageable. – No male below the age of 14 years and no female below the age of 13 years shall be capable of contracting a valid marriage that is entered into by one male and one female, and all marriages contracted by such persons shall be null and void. No male below the age of 18 and no female below the age of 18 shall be capable of contracting a valid marriage between persons of the same gender, and all marriages contracted by such persons shall be null and void.

Yes, they write in 13 for girls and 14 for boys. But only if they aren’t gay (same sex marriage is legal in NH, but only for adults). If they are gay, they need to wait until they are 18. Because 13 year old girls having gay sex is wrong. Straight sex? I guess that must be okay in New Hampshire. To be fair, 13 and 14 year olds referenced above would need a court hearing.

(yes, they mean sex, not gender above, as these are typically confused in statutes – I’m pretty sure they wouldn’t let a 17 year old transman marry a woman)

Interestingly, 13 year olds getting married (as long as they aren’t gay!) doesn’t seem to bother the likes of the National Association of Marriage. Go figure.

Nor is cousin marriage. In 2010, the Governor of Hawaii was famously quoted saying,

For those people who want to makes this into a civil rights issue, and of course those in favor of the bill, they see it as a civil rights issue. And I understand them drawing that conclusion. But people on the other side would point out, well, we don’t allow other people to marry even — it’s not a civil right for them. First cousins couldn’t marry, or a brother and a sister and that sort of thing.

Just one problem – Hawaii does allow first cousins to marry.

Apparently, poly-bi people are set in Hawaii too. Hawaii doesn’t prohibit a man from marrying a woman, even if he’s married to a man in another state – here’s the restrictions on multiple marriage:

The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living

Remember Arizona? Cousins can marry. If they are old.  From statute title 25, section 101.B:

Notwithstanding subsection A, first cousins may marry if both are sixty-five years of age or older or if one or both first cousins are under sixty-five years of age, upon approval of any superior court judge in the state if proof has been presented to the judge that one of the cousins is unable to reproduce.

So a 64 year old woman who has had a hysterectomy couldn’t marry her 64 year old first-cousin. But if the man was 65, she could, with court approval. We’re worried about kids after all – if no kids are involved, cousins can marry. Unless they are gay and thus the two can’t both be biological parents of the same kid.

And, Maine? They let cousins marry, if they have genetic counseling. If they aren’t gay.  See 19A 701 B:

Notwithstanding paragraph A, a man may marry the daughter of his father’s brother or sister or the daughter of his mother’s brother or sister, and a woman may marry the son of her father’s brother or sister or the son of her mother’s brother or sister as long as, pursuant to sections 651 and 652, the man or woman provides the physician’s certificate of genetic counseling.

There is no such exception for gays.

Of course, in general, the idea of cousin marriage overall is not unusual. In fact, 20 states allow cousin marriage without any requirement of sterility or court permission.

These child marriages and cousin marriages will be recognized everywhere in the USA except possibly Arizona and Utah. Of course a same-sex marriage from other states isn’t recognized in 48 states. The actual number is much smaller, generally only in states that themselves allow same-sex marriage licenses.

Meanwhile, the right wing is protecting us from gay marriage. For the Children. But it’s okay with them, apparently, to recognize child marriage. Or cousin marriage. Or any of the other things that the right wing uses as an argument against gay marriage.

Maybe, just maybe, we should focus on fixing the mess of marriage laws in the USA, and strive for at least a semblance of consistency within a state (if heterosexual cousins can get married, why not gays? If a 13 year old girl can get married, why not a 13 year old boy – note that I will go on record as definitely not supporting either 13 year old being married!).

 

Right to Refuse Service

America is a country that values freedom, at least some of the time (drone strikes and stop-and-frisk programs excepted), including the key freedom of being able to decide who you will and won’t serve, if you run a business.  It’s the “right to refuse service.”

(My apologies to people outside the USA – I’m writing right now about a USA-specific issue)

A small-town business district.  Should these businesses be able to refuse service to a black man?  A Jewish person?  A disabled person?  A pregnant woman?  A trans person?  Note that none of these businesses to my knowledge does so, but I ask the question: Should a small business be allowed to discriminate?  When?  And when not?

A small-town business district. Should these businesses be able to refuse service to a black man? A Jewish person? A disabled person? A pregnant woman? A trans person? Note that none of these businesses to my knowledge does so, but I ask the question: Should a small business be allowed to discriminate? When? And when not?  (Picture by self)

But we also recognize that freedom has limits.

Just recently, a bar in Portland was fined $400,000 for attempting to refuse service to a trans support group.

This isn’t the first time a business has been prohibited from refusing service.  This tradition goes back some time.  For instance, we recognized in 1964, with the federal Civil Rights Act.   In Title II of the act, many types of businesses were regulated by the government – and told, like it or not, you have to serve black people too.  It didn’t matter that the business owners might have objected on religious or political or philosophical grounds.  They didn’t have a unilateral right to refuse service for any reason.  And anyone who tries to create that right today will be undoing Title II of the Civil Rights Act.

But we’re getting ahead of ourselves.  We need to start with the basics.  First, a business generally can refuse service.  There’s only a limited number of reasons why a business cannot.  A business can refuse service to an unruly customer.  A business can refuse service to someone who makes too little or too much money.  A business can refuse service on the basis of fingernail length or lack of shoes or color of a T-shirt in most cases.  A business can refuse service to people named Frank.  A business can refuse service to someone the owner just plain doesn’t like.

But what a business cannot do under the Civil Rights Act of 1964 is to refuse service on the basis of race, color, religion, or national origin.  Other federal laws since then – and we’ll get to a some of this – extended that to creed, age (with limitations), sex, disability, and veteran’s status (with limitations).  So you can refuse to serve a black man coffee, but not because his race or color.  You need a non-protected reason to do so.

In 1964, shortly after passage, the law was challenged.  Among the arguments in the challenge, brought forth by the owner of the Heart Motel of Atlanta, were that the federal government cannot regulate local businesses that do not directly engage in interstate commerce (they argued that was a state power), and a violation of his right to liberty (fifth amendment) by refusing him this liberty, forcing him into involuntary servitude contrary to the 13th amendment (by forcing him to rent a room to someone).  In other words, he argued that not being able to exercise his right to refuse service was similar to slavery and a violation of his personal freedom.  That’s not very far off from the argument today about the right for businesses to refuse service to LGBT people.

Now, remember, prior to the Civil Rights Act of 1964 being enacted, segregation was prominent.  Whether it was “separate but equal” (outlawed in schools in the 50s, but not outlawed in businesses) accommodations or bans against serving blacks, racial discrimination in business was common.  The famous, “I have a Dream,” speech was delivered by Martin Luther King Jr. only one year earlier.

When this case reached the Supreme Court of the US, the court upheld the law – unanimously (albeit with several concurring opinions).  The desire of the hotel owner to refuse service could be regulated by congress, and congress had passed a law prohibiting such refusal on the basis of race or color.

Much later, in 1990, the Amercians with Disabilities Act passed.  This act applied to an even larger group of businesses than the 1964 Civil Rights Act – and prevented not only direct refusal of service, but also indirect refusal.  Businesses could not indirectly refuse access and were required to take “reasonable” steps (pardon the pun) to remove barriers, architectural or otherwise, that might prevent access.  This was wide-ranging, and included not only physical disabilities but mental, sensory, developmental, and psychological disabilities as well.

This, too, has been challenged and upheld.  A business not wanting to serve blind people cannot refuse service to a blind person!  That’s illegal.  Even if you have strong beliefs.

Now some would throw the Civil Rights Act and the Americans with Disabilities Act out the door.  They would say, “If I’m a business owner, I should be able to refuse service to gays.”  Now, the 1964 act didn’t apply to gays, but if a Federal act attempting to ban segregation was constitutional, a state act can be also, even if it applies to a different group of people.  But of course if there is a universal right to refuse service for discriminatory reasons, it would equally apply to race (there’s a question as to whether LGBT status should be treated similar to race, but that’s not the argument presented that I’m countering – the argument I’m countering is that a business owner should be able to decide who to serve, period; that said, I do believe LGBT status should be a protected status on par with race, sex, religion, disability, etc).

In the recent case, where a bar was fined $400,000 for harassment of trans customers (this is a form of refusal of service), the bar owner felt it his right to refuse service to whoever he wished.  However, his jurisdiction had laws that protect LGBT people from this type of discrimination.  Much like the Civil Rights Act and the Americans with Disabilities Act, they do not allow discrimination for some specific reasons – in this case, LGBT status.

The response online?  “He should be able to refuse whoever he wants.”

Of course one can see the need for regulation on refusal of service if one looks at a few types of businesses.

First, hospitals: imagine a for-profit hospital refusing to perform emergency care on the basis that someone is gay or black!  Unfortunately, this does happen, but not as commonly as it would without some non-discrimination laws that apply to health care.  Of course someone might say, “Well, that’s different.  This is life and death and they have a duty to keep people alive.  You might need a hospital, but you don’t need a bar.”

That may be true.  But of course, how do you define what businesses are needed and which one’s don’t perform a useful service?  And is the point really that there are other ways to handle this?

Let’s go a bit further and talk about government contractors.  First, what is a government contractor?  Let’s define it broadly as someone who does business with the government.  Should a company leasing a major toll road from the government (see the Indiana Tollway) be able to refuse service to gays?  Should a toll booth operator be able to ask, “Are you gay?” and charge a different rate if you are?  Or tell you to take a free road?  I think most people would say NO, they are getting money from government and need to operate in the public’s interest.

So, let’s take it a bit further.  Does this apply to anyone doing business with the government for services?  What about a pizza joint used by federal agents during a stakeout?  Obviously this gets messy.

The right solution is the same one we started for race and disability.  While we haven’t solved racial or disability discrimination, we’ve made progress and made the world more pleasant for people with disabilities and who are not of a certain race.  We’ve also restricted business owners’ rights to refuse service.  We decided that was a good thing to do then.  And it’s a good thing to do now.

The difference between race, disability, and LGBT rights is simple: almost everyone thinks racial discrimination is wrong.  Of course it wasn’t always that way, and in the 1960s, there was plenty of opposition to desegregation.  And in the 90s there was a lot more opposition to the idea that a business shouldn’t be able to fire a disabled person who could perform the job.  But times have changed.  So now people look back and generally support those laws – but it wasn’t always so.  I suspect the LGBT non-discrimination laws will be similar – you can see the tide changing, and you can see the people who aren’t ready to adapt clinging onto every possible reason to continue to discriminate.

Of course we’ll see objection after objection (such as the current religious ones) to LGBT rights.  But the question isn’t really a religious one (so, you want to refuse service to gays because they don’t value the sanctity of marriage, and you’ll do so by refusing to bake cakes, but you have no problem baking a divorce cake?) – it’s hard to claim a religious exemption if you are a business instead of a religion, and your discrimination looks more like targeting of one group than a general sincere desire to follow your religion.  Just as a hotel owner in 1964 claimed it was slavery to take money from black customers.

The Tradition of Fixed Gender

A recent Fox News article about a proposed California law to protect trans students from discrimination is what one would expect from Fox – transphobic and ignorant of science, while finding obscure hate groups to provide “counterpoint” to a fictitious argument.

As someone who finds history – particularly history of gender, sex, and orientation – to be fascinating and much more interesting than much of what I was taught in school (or should I say “what they tried to teach me in school?”), I found one statement pretty humorous:

“For a millennium, sex has meant male or female,” she said. “What they are saying is now you can change that.”

The person quoted is Andrea Lafferty, the non-traditional head (many “traditional” churches still ban women from leadership, after all) of the Traditional Values Coalition of California, an obscure anti-gay group that has been designated as a hate group by the Southern Poverty Law Center not because of their anti-gay stance, but rather because of the known and verifiable lies they use to promote their cause  of hate.  Any responsible journalist would recognize that this may not be the best source for a quote, unless you are talking about how absurd some groups in America are when it comes to hating gays (and, to these groups, gays and trans people are exactly the same).  But I digress.  She claims that for a millennium (that would be roughly 914 A.D. until now) that sex has meant male and female.

Apparently intersexed people don’t exist.  These are people who, at birth, have ambiguous genitals or other sex characteristics.  For instance, someone with some cells that have XX chromosomes (female) and someone who has XY chromosomes (male) would be intersexed (and, yes, these people do exist).  Sex determination is hard – so hard that most reputable, scientifically based groups (such as most sports organizations) have acknowledged that someones we just can’t know if someone is more male or more female – they are ambiguous, and no test can make it clear (in those cases most sports organizations fall back to the person’s legal recognition).

That of course is not new.  Focus on the Family seems to imply that intersexed people shouldn’t marry, by saying:

From [some previously quoted Bible passages] we see that Christians are called to understand that God readily seeks to strengthen and encourage those who find themselves unable to marry and participate in genderedness and sexual expression as ordained in the created order.

The context of this is about why you can dismiss intersexed people as a challenge to Biblical ideas of male and female (note that not all Bible scholars agree that the Bible says everyone is fully male or fully female and cannot change).  They go on to say that the person should live their assigned gender identity, never mind the possibility of error at birth.  So, Focus on the Family’s solution is to just ignore intersexed people when it comes to discussion about gender, and that they live single lives rather than complicate the situation for Focus’s followers.  Oh, elsewhere they tell us that intersexed people – unlike the rest of us – are a result of the fall of man, and thus are basically the fruit of sin.

So ignoring or insulting intersexed people is hardly new for some groups that claim to be acting in the name of Christ.  So it is no big surprise when the Traditional Values Coalition’s (TLC) executive director ignores those.  At least those who have existed in the last 1,000 years or so.

But back to the rest of her point – that, ignoring intersexed people, sex has meant male and female for a 1,000 years.  Of course we should differentiate sex and gender, with sex being biological and gender being identity – and I’ll ignore the common sense that says someone who identifies as a woman and is known to be a woman should use the women’s room, or the common sense that a non-discrimination law for students affects far more than bathrooms.  Or that this is needed because of the tremendously high suicide rate of trans youth.  I’m going to ignore that and just focus on how sex has meant male and female for 1,000 years.

Looking at that, most trans people would say, for the most part, it still does.  Most trans people don’t seek a third category (some do, and this of course should be respected).  The very idea of gender identity disorder (the current DSM-IV diagnosis for a transsexual) is someone that is unhappy with the biology of their body – and there are of course medically recognized treatments, consisting of things like hormones and surgery, for this diagnosis.  And most of these people would consider themselves to be male or female after transition.  No surprise there (except possibly to the TVC).

I suspect the literal reading (a mode of Bible study these people are fond of!) is not what the Executive Director intended, however.  I suspect she’s arguing that sex is fixed, and can’t be changed.  And, further, that people should live in the gender role that matches society’s expectation for their sex.

So, let’s look at some history.

Let’s take Queen Christina of Sweden in the 1600s.  That’s within 1,000 years.  After she abdicated the throne, she traveled as Count Dohna, a man.  There’s some evidence she may have been intersexed, and also may have been bisexual.  During her life, many observed she (unfortuantely I don’t know which pronoun she would prefer) did many things as a man would.  Want a real mindblower?  Her body is in the Vatican crypts.

Queen Christina of Sweden on horseback, as painted by Sebastien Bourdon in 1653

Queen Christina of Sweden on horseback, as painted by Sebastien Bourdon in 1653

Or the many Native Americans who lived as what we might see as transgender or transsexual lives.  That is, a person born with male sex organs who lived, worked, married, and dressed as a woman, often married to a man.  Or vise-versa.  Or those that lived as neither man or woman.  That mostly stopped as the USA was colonized and Christianity (and European interpretations of Christianity) were brought into the culture.  This was certainly within 1,000 years.

Or we can look at Islam and Mohammed, who lived a few hundred years before the last 1,000 years.  The Quran references “Mukhannathun” who would generally be considered transwomen today.  Within the last 1,000 years, other writings have confirmed this view.  There is controversy about whether trans people are committing sin in Islam, but regardless of that controversy, clearly gender was not always black and white.

Or we can look at USA court cases.  Such as M.T. v. J.T. in NJ (1976), which affirmed that a post-operative trans person was in fact a different sex than their birth.  It’s for this reason that most US states allow reissuance of a birth certificate after a sex reassignment procedure.  Clearly sex is not fixed in the eyes of the law.  We can look at more recent legal decisions such as the federal In re Jose Mauricio LOVO-Lara (2005), where a post-operative trans person was recognized as a female for immigration purposes.

There are literally thousands of examples I could cite, but the above is sufficient: sex was never recognized as completely black and white, one way or the other, and unchangeable.

Of course then we get to the heart of the issue and the real transphobia in the Fox article.  The heart is the idea that trans people aren’t really the gender they claim to be, that they really are whatever was put on their birth certificate at birth.  That’s what’s really at issue, beyond all the talk of bathrooms and religious discrimination and love for the product of Adam’s sin.  It’s about whether or not a person’s gender can be legally recognized.  Some, who have nothing in the fight except hate, say no.  They say that they outnumber trans people, so trans people should lose.  Fortunately, our country’s founders were smart enough to not quite let majority rule at their whim – and this hateful group very likely lacks even that majority.  Even the rights of one are worth protecting.  Scared your kid might have to use the bathroom with a trans person?  I hate to tell you this, but they almost certainly already have.  And so have you.  Beyond that reality, trans people are not sexually assaulting kids in bathrooms.  No, rather than that, the trans kids are being assaulted in the bathroom.  So, if you really care about kids, as you claim, why don’t you start by figuring out why someone would think it’s okay to beat someone up because you think they dress wrong, talk wrong, act wrong, or pee wrong.  But, no, the solution from the right wing is to allow schools to exclude and neglect trans people, to appease people who think they are living a life of sin, who want a trans person to be punished for the mistaken idea that somehow you can punish the trans out of someone.

One thing is for sure, though: trans people aren’t a new part of society.  This is hardly a new idea to any serious student of history (you know, the kind that doesn’t just read stuff that reinforces their views and ignores all other sources).  Maybe it’s new to some bigoted right-wing hate group administrators, but it’s not new to the world.  I didn’t even mention the Asian or African cultures that lived for thousands of years (and often still do) with third gender members of their communities.  Or the women who dressed and acted as men to fight for the USA (or other nations).  Or the many other people who didn’t meet everyone’s gender expectations.

Balancing on the Edge of the Toilet Bowl

We need to balance the rights of everyone.  Uh, sure.  But not that way.

We hear this statement – we need to balance everyone’s rights – when someone’s rights are being denied.

Ancient Roman latrines / latrinae, Ostia Antica.  There is considerable scholarly debate as to whether these roman latrines were gender-segregated.

Ancient Roman latrines / latrinae, Ostia Antica. There is considerable scholarly debate as to whether these roman latrines were gender-segregated.  Toilets are a controversial subject!

In Colorado, we have a pretty awesome Division of Civil Rights.  They recently ruled (PDF via Transgender Legal Defense and Education Fund) that Coy Mathis, now a second grader, has the right to use a bathroom that matches her gender identity (she is a trans girl).  While Coy has left the discriminatory district and is planning to attend school in another city (a wise decision, as retaliation if subtle can be hard to prove), this decision will help many other people in a very practical way – the right to go to the bathroom.

One of the arguments we heard during the debate from the discriminatory district was that this was a “complicated situation” (that means “I don’t really want to discuss this publicly or have it questioned – it’s too complicated for simple public discourse, after all…”) and that the district couldn’t extend special rights to one student (or a small number of students) at the expense of the majority.  Of course the special rights tactic isn’t new, particularly from that area of Colorado, as it gained great prominence in the Colorado Amendment 2 battle (the formal title of Amendment 2 was “Colorado No Protected Status for Sexual Orientation Amendment, Initiative 2”).  There were three reasons given to the general public at large for the need to pass Amendment 2:

  • Passage will provide for the safety and well-being of children (that is, allowing non-discrimination ordinances to exist would be bad for children because then they’ll hear that gays are equal and are supposed to be treated well, which, apparently, will make more kids gay).
  • Gays are making a lifestyle choice, which shouldn’t be protected in the same way things that are not choices should be protected.  We shouldn’t “protect sin.”
  • Gays are a very small minority, so nothing is wrong when a majority of people believe something is wrong and vote to codify their moral beliefs in law, even if it affects that minority.  They are outnumbered.  Special rights for gays that YOU don’t get.

Of course most people know that being gay isn’t a lifestyle choice.  So I’m not even going to dignify that with an argument.

As for harm to Children, that was prominent part of the Amendment 2 TV advertising.  For example, one anti-gay ad (click to watch) used the following voice-over, “School kids are taught this lifestyle is healthy and normal.  By law.  Do we want to protect our children?  Yes we do!  Vote yes on 2!”  The implication is that children will be infected by gay, I guess.  There is of course children on the other side of the issue – as Judge Kennedy wrote, when striking down part of the Defense of Marriage Act, anti-gay laws serve to “[humiliate] tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”  So that leaves us with the third point.  I’ll address this along with the next argument.

The third argument in favor of Amendment 2 was the argument that the majority trumps the minority has been used forever.  Essentially the majority will claim, “If we recognize rights for the minority, we’ll lose rights.  And it’s not right that the majority loses rights.”  It was special rights for gays.

(note that I’m not equating gays and trans people – but the issue is the same, just as the historical opposition to desegregation is similar to the opposition today against LGBT people).

And that’s where we are today.  The idea is that somehow the rights of the majority are violated when a trans child uses a bathroom aligned with the child’s gender identity.  Sometimes you’ll hear the same Amendment 2 style safety concern, or a slightly different one along the lines of “They are going to let perverts into your girl’s bathroom.”  The “special” right of being able to use a bathroom that matches your gender when you need to urinate doesn’t apply to trans people.  After all, we have to think of the right to be safe while using the bathroom.

That’s where the argument is today – there are two parts to the argument that allowing a 2nd grade transgirl to use the girl’s room is dangerous and thus a violation of more people’s rights than prohibiting her use of the bathroom would be:

  • Women, girls, and, to a lesser extent, boys have the right to be safe from others
  • Trans people are dangerous

Few people would disagree that people using the toilet have a right to be safe – just as during Amendment 2 in Colorado, few people were opposed to protecting children – the disagreement was whether or not being able to fire gay people in Boulder, CO for being gay had anything to do with protecting children.  Of course what is lost in this argument is that trans people also have the right to be safe – both psychologically and physically.

There are few if any (I know of none) incidents of a trans person using a bathroom and then assaulting a woman or child in that bathroom.  There sadly are many incidents of trans people being beaten, kicked, insulted, humiliated, and threatened for using a bathroom – and this is true no matter which bathroom they use.  But balancing the rights of Coy Mathis and the other students, in the eyes of some, means segregating Coy from other girls because Coy is the problem.  If she can use the bathroom, that would be the same as letting a man use the bathroom.  It would be dangerous.  Yet the evidence says otherwise.

The next response is, “Well, Coy is essentially third gendered.”  No, she’s not.  She’s a girl.  She doesn’t identify as “neither boy or girl.”  She identifies as girl.  There are people who don’t see themselves as either man or woman, but a different category – and this of course needs to be respected.  But in Coy’s case, she sees herself – as do her parents, doctors, and most of her teachers (but not district administration) – as a girl.  She’s not third gendered.  Using a staff bathroom (ironically they were single stalled, but still signed “men” or “women” – they were still gender segregated) would be stigmatizing to anyone.  Do you not think kids would notice and then tease someone who used a different bathroom?  Who was using a bathroom kids normally are prohibited from using?

Now, I believe in having private bathroom options for all people.  Certainly some trans people will use them.  So will some people that reject binary gender.  And so will plenty of non-trans people who need extra privacy for whatever reason.  But it must be a choice, not forced, to remain free from stigmatization.

The right of Coy should be considered.  She has the right to be a girl.  Colorado law, fortunately, recognizes this.  Someone else’s “right” to not feel uncomfortable does not trump Coy’s rights.  No matter how numerous the uncomfortable people may be.  Besides, there’s an easy solution for people who don’t feel comfortable sharing the bathroom with someone else: use the single-stall bathrooms!  Coy isn’t the problem (statistically, it’s clear she’s not likely to harm others).  Perhaps it’s a good time to think about bathroom safety for all, since too many children are assaulted in bathrooms (by people who are not trans).

We also have good law already for someone who will violate someone else in the restroom.  The gender of the attacker isn’t the critical issue.  The act itself is.  And the law does recognize that certain acts shouldn’t happen in the bathroom.  For example, despite Boulder, Colorado having laws that prohibit discrimination on the basis of gender identity and expression, their porta-potty peeper was rightfully brought to justice.

There is no need to “balance” the rights of bigots with Coy.  The bigots are of course free to grumble and protest, but they aren’t free to discriminate, whether it’s Coy or a black student or a muslim student.  Their bigotry is not solved by discriminating against the object of their hate.

So, in summary, it is possible to balance the rights of the people who will be uncomfortable and the rights of Coy.  Let the people uncomfortable sharing bathrooms use private facilities.  Those of us who are fine with someone else urinating in another stall can then get on with our lives – and you don’t harm or segregate an innocent girl in the process.  She isn’t responsible for someone else’s bigotry or discomfort.