How to Define Sex: The Limitations of Current Applications of Civil Rights Law

To me, branding individual self-expression as only feminize or masculine is like asking poets whether they write in English or Spanish. The question leaves out the possibilities that the poetry is woven in Cantonese or Ladino, Swahili or Arabic. The question deals only with the system of language that the poet has been taught. It ignores the words each writer hauls up, hand over hand, from a common well.

~ Leslie Feinberg, "We are All Works in Progress," in This is What Lesbian Looks Like, ed. Kris Kleindienst.


Rebecca Kastl has had a difficult time finding a lawyer to represent her in her fight against EMCC. She has talked to a litany of lawyers who have all declined to take the case because they feel that she has no chance of winning in court. In fact, one attorney has argued that "Most of us won't touch stuff like this unless it's the equivalent of a 'rear-end collision with an insured commercial vehicle' (i.e. we have some hope of at least ending up even)." Consequently, those who need help the most remain disenfranchised because they can't afford to buy their way through the courts or pay off politicians to enact legislation that would ensure that their rights were protected. When did the probability of success in court start determining whose rights are protected under the law? I thought that justice was blind, but this is apparently not true when it comes to issues of sex and gender.

How does Rebecca feel about such narrow-minded views of the law? According to Kastl:

"I understand that in order to proceed, an attorney would like to have a guaranteed winnable case, and this case does fall into that category. I've spoken with several attorneys and legal experts (unfortunately, not ones that are licensed to practice in AZ, or have a clear schedule at the moment) who specialize in transgender legal issues, and in their opinion, this is a clear-cut case of discrimination, requiring only representation to 'get things moving.'

There is relevant case law, and federal statutes and regulations regarding the key issues here which clearly demonstrate the faulty standing of the MCCCD. The key issue is that MCCCD required me to disclose to them personal and private information to which they are not entitled as a condition of employment. A second key issue is that, by failing to disclose private information, I was forced into placing myself into a position representing a clear and present danger to my personal safety.

For a government entity to require me to disclose such information violates my 4th Amendment rights, my 14th Amendment rights, various HIPAA privacy regulations, and constitutes discrimination. In addition to being a faculty member, I was also a student at the school, which would also entail Title IX considerations relating to accessibility to the school and educational opportunities. The last 2 claims are based upon existing case law from the 9th Circuit Court (which includes AZ within its jurisdiction) which states that transsexuals are included under the definition of 'sex' in regards to Title VII statutes (and thereby, Title IX), a decision affirmed by the Supreme Court of the U.S.

There are numerous other existing case law instances from the Supreme Court and other Circuit Courts which clearly support my position and demonstrate the faulty standing of the MCCCD. The MCCCD blatantly ignored and disregarded my civil rights protections, even ones not contingent upon Title VII. My standing under Title IX wasn't even considered since they were not aware that I was also a student (they never bothered to investigate, which would be reasonably expected when enacting such a far reaching policy). When I raised those issues, rather than investigate, they summarily dismissed them in favor of the false assumption that it is acceptable to relegate transsexuals to 3rd or 4th class status as citizens. Following this logic, an illegal alien would enjoy more civil rights in the U.S. than I do as a citizen of the U.S. and combat veteran of the U.S. Armed Services.

Lastly, in response to issues raised pertaining to my personal safety if I were forced to use the men's restroom (there were no alternatives), the MCCCD stated that it was "not their concern." Nor did they (apparently) feel it would have been their concern had a transsexual minor been forced into the same position. Clearly placing individuals in harm's way, either faculty or students, is irresponsible and negligible on the part of the MCCCD - a position they chose to ignore. The MCCCD stated that they based their policy upon what was acceptable within the private employment sector, and failed to actually investigate what was within legal bounds for a public employer - an issue I raised and that was summarily dismissed.

If you're looking for a 'rear-end collision by an insured commercial vehicle,' I think you've found it."

Such a strong statement seems easy enough to make, but the State Attorney General of Arizona doesn't seem to think that Rebecca has a case. They've told her that she is "outside of [their] jurisdiction," which, according to Rebecca, is "a cheap cop-out and a convenient excuse to ignore the truth." Kastl argues that the State Attorney General's office was out of line because she specifically raised questions of due process in her appeal. She says, "you are entitled to due process under the Fourteenth Amendment regardless of whether or not you are entitled to equal protection under the law. Essentially, the State Attorney General is saying that because I'm a transsexual, I'm not entitled to any sort of protection under the law and that people can get away with murder if they want to."

So What's The Problem?

The justification for taking the MCCCD to court is easy to comprehend, but the problem arises when someone tries to broaden the current interpretation of the term "sex" in domestic civil rights statutes. Although there is no legally binding definition of sex or gender, traditional, as was as contemporary, interpretations of the two terms tend to hold onto the very conservative notion that there are only two sexes and two genders and that biological sex necessarily correlates to gender. In fact, the current precedent used by the courts to determine whether transsexuality even exists relies upon the notion that chromosomes are ultimately what decide a person's sex. A female is someone with XX chromosomes and a male is someone with XY chromosomes. Ergo, you can't change your chromosomes; therefore, you cannot change your sex.

Along this line of reasoning Ulane v. Eastern Airlines, a frequently cited decision, overruled a lower court's decision that transsexual persons are protected by the provisions of Title VII. Initially, the lower courts found in favor of Ulane, stating that Title VII protections against sex discrimination should include transsexuals in the application of the definition of sex. Indeed:

"Other courts have held that the term 'sex' as used in the statute is not synonymous with 'sexual preference . . .' The district court recognized this, and agreed that homosexuals and transvestites do not enjoy Title VII protection, but distinguished transsexuals as persons who, unlike homosexuals and transvestites, have sexual identity problems; the judge agreed that the term 'sex' does not comprehend 'sexual preference,' but held that it does comprehend 'sexual identity.' The district judge based this holding on his finding that 'sex is not a cut-and-dried matter of chromosomes,' but is in part a psychological question--a question of self-perception; and in part a social matter--a question of how society perceives the individual."

Unfortunately, the Appeals Court disagreed with the lower court because:

"Even though Title VII is a remedial statute, and even though some may define 'sex' in such a way as to mean an individual's 'sexual identity,' our responsibility is to interpret this congressional legislation and determine what Congress intended when it decided to outlaw discrimination based on sex."

According to the decision, Ulane was fired from her job not because of her sex; she was fired because she changed her sex. The judges argued that:

"Biologically, sex is defined by chromosomes, internal and external genitalia, hormones, and gonads . . . Chromosomal sex cannot be changed, and a uterus and ovaries cannot be constructed. This leads some in the medical profession to conclude that hormone treatments and sex reassignment surgery can alter the evident makeup of an individual, but cannot change the individual's innate sex."

Furthermore, the judges concluded that Congress never intended for transsexuals to be covered by Title VII because there was no debate or discussion in the Congressional record to show that transsexuals were considered to occupy a legitimate position within the pink/blue gender dichotomy.

Consequences of Ulane

As a result of the Ulane decision, it is difficult for lawyers to apply Title VII because the definition of sex has been narrowly applied to exclude anyone that does not fit neatly in to male or female gender role. However, can anyone every truly define what constitutes male or female, regardless of whether we are talking about sex or gender? The answer is no. According to Kastl, the problem with this line of reasoning is that is "fails to recognize that male and female are not determined by chromosomes, genitalia or any one particular thing. And even if there was a deciding factor, how would you go about proving that and when do you draw the line?"

If we only define a person's sex based upon his/her genitals, what happens when a child is born with ambiguous genitals, as in the case of intersexed babies or hermaphrodites? What protections do they enjoy under the law? According to the judges in Ulane, we would have to test the child's DNA to find out their chromosomal make-up. But what do we do if a person's chromosomal make-up doesn't match their external genitals? The only way these people would ever know that they have mismatched chromosomes is if they were tested for fertility problems and doctors discovered the biological mix-up. The fact is that there are so many variations within nature that it is impossible to determine with 100% certainty what constitutes male and female. Limiting the application of the term "sex" to only what is currently understood to constitute sex is inadequate because the courts and the medical profession currently understand sex to be a combination of chromosomes, hormones, external genitalia and secondary sex characteristics. Concepts of gender presentation do not even factor into the current equation that codifies biology as destiny. Therefore, the courts should apply the broadest interpretation of the law because we do not currently know the infinite number of permutations of male and female that could exist within human society.

The Analogy to Race or Religious Background

When the Constitution was first written, the Founders wrote the Bill of Rights in very broad terms because the intended for it to be a living document. In other words, interpretations of the Constitution should change to meet the social demands of the time. This is clearly spelled out when the Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Translation: Your rights don't cease to exist just because they are not specifically mentioned in the Constitution. The Founders knew that issue would arrive at some point in the future that they could not foresee and that the Constitution needed to be written in broad enough terms to include those rights. Furthermore, Article One, Section 8 of the Constitution grants Congress the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Therefore, the Constitution should be interpreted broadly enough to include all sectors of society. If you have a pulse, the Constitution applies to you and protects you from discrimination. Period.

Kastl likens sex and gender identity to a person's race or religious background. The First Amendment protects a person's freedom of religion without ever attempting to define what religion is. If a particular religious group did not exist or was not recognized at the time the First Amendment was crafted, should members of that religious group be denied their Constitutional rights simply because the Founders did not discuss that group as the Bill of Rights was being debated? Certainly not. To do so would violate the spirit of the law because it would set up a system that favors one religion over another.

The Fourteenth Amendment and Title VII of the Civil Rights Act of 1964 both prohibit discrimination on the basis of race, but neither of these laws attempts to define what races are covered under the law. Let's say that a member of an indigenous nation immigrates to the United States and that this person's race was unknown at the time the laws were enacted. Does this person abrogate their rights upon entering the US simply because the legislators who debated the laws failed to include this person's race in their discussions? I would hope not.

If we follow this line of reasoning, the government has an equal obligation to protect the rights of individuals whose sex or gender does not easily conform to gender stereotypes. A person does not waive his/her Constitutional rights when s/he fails to fit within certain prevailing racial stereotypes. Why should we expect something different of people who defy social gender norms? Perhaps we are only willing to recognize traditional interpretations of male and female. But slavery was once a tradition in this country and we abolished that practice. Why should we continue to desperately hold onto gender roles that have become anachronistic? After all, isn't this what feminism is supposed to be all about?

Conclusion

A strong legal argument can be made in Kastl's case that the MCCCD acted in a discriminatory manner because of Kastl's sex. However, choosing the most appropriate legal venue seems to be the most difficult question. Does Rebecca stand a greater chance of winning in federal or state court, and what would be the ramifications of the decision? Are current laws enough to protect the rights of individuals like Rebecca, or does special legislation need to be passed that would specifically address issues of transsexuality and transgenderism?

The question of the courts v. the legislature seems to be the easiest question to answer. In Kastl's opinion:

"Special legislation is unnecessary given that the problem with transsexuality is based upon stereotypes. When people transgress social norms, there is a penalty to be paid because there is a social expectation that you should not cross gender lines. There is a stigma attached to transsexuality that gets codified into law when we refuse to broaden the current definitions to include all forms of gender expression."

Therefore, to say that Kastl isn't protected under the Fourteenth Amendment is to deny that she has any rights as a human being at all. The courts need to take the laws that have already been written, because if we pass legislation that only protects transsexuals, what happens when other questions arise, as in the case of the intersexed? The law should be interpreted in the most positive and least restrictive manner.

As for the question of state v. federal courts, this one is more difficult and really requires the knowledge and expertise of an attorney. It is imperative for Rebecca to find adequate legal representation so that she can work out the best strategy for winning her case. Hopefully, raising people's awareness of this issue will help bring people on board so that she can convince groups like the ACLU and the EEOC that this case does, in fact, "affect a great number of people." Any form of gender discrimination affects us all because once the courts and the legislature are able to deny one group of people their Constitutional rights, they have the power and the ability to deny anyone equal protection under the law.

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What Can I Do to Help?

Rebecca is currently seeking letters of support from all sectors of society to help prove that there are people out there who care about social justice. Some people have argued that such a strategy will set back the LGBT movement by causing a backlash against LGBT people who are pressing for social rights and that people like Rebecca should wait their turn. We don't want to upset the apple cart by completely dislodging stable notions of sex and gender! If we start asking those in power for too much, we will cause a delay in the gay rights movement.

Actually, I think what has caused decades of delay in people securing their rights is that we continue to take piecemeal approaches to these things. People like Rebecca are told, "wait until next time. It's not your turn to be treated like a human being." This is exactly like the first wave feminists who told women of color that they would have to wait for their rights because of strategic considerations. If you look at the rhetoric that suffragists like Elizabeth Cady Stanton were using, they actually justified giving only white women the vote because they wanted to solidify political power for themselves by feeding upon people's prejudices. It's time to stop attacking ourselves from within so that we can garner support from a broad base of social activists. There truly is strength in numbers. In Rebecca's opinion, it's when people who have NO vested interest in seeing the application of the law change speak up in defense of others that the potential to do good is greatest. It's easy to ignore Rebecca because she doesn't fit neatly into any of our social categories. But what about those of us who do sit comfortably within our pink & blue boxes? Let's educate each other, because what happens when you're suddenly constricted to a smaller and smaller box? Will you care then?

Now, I know that these people weren't trying to suggest that it's OK to discriminate. But perhaps it is time for the LGBT community to really take an inward look at itself and demand rights for all, not just rights for some. Feminists need to start aligning themselves more closely with the queer community because our battles are essentially the same. We will have much more credibility when we try to claim our rights if we say that these rights are for everyone. The minute we tell someone that they should wait their turn in line, the movement has defeated itself. The LGBT community really shouldn't include the T if we don't honestly intend to take trans people seriously. Inclusivity requires much more than just a letter in the title.

If the ACLU can see that enough people care about this issue, perhaps they'll actually give Rebecca's case a fair shake. And maybe the ACLU isn't the best avenue for Rebecca. All the more reason for her to get adequate legal representation. So far, she has been turned down by a 20-30 lawyers for the very reason that they don't think that she can win her case. I hate to be trite here, but if we always gave up because we didn't think that we could win, think of where we'd be right now. I don't think that many people thought that Blacks could win back in the day (and yes! They're still fighting), but that didn't (and doesn't) stop people of color from trying. If Wounded Knee taught us anything, it's that a group of determined individuals can accomplish a lot, even if their initial goals aren't met. If you have any suggestions as to a better course of action for Rebecca (besides telling her to wait her turn in line), I know she would appreciate the legal advice. The most frustrating part about writing this story has been that it seems like no one is listening.

Even if you're an upper-middle-class, heterosexual, white-male, you're rights are at stake here, too. What happens when it comes to be your turn in line and someone tells you that you should wait? Will you listen then? If we look at this within a broader context, we should pay attention to the language in various UN human rights treaties that says that NO person's human rights should be violated. If we get to pick and choose whose rights are protected, then we violate the spirit of those very same treaties (which, I guess, isn't all that unheard of for the US) that are supposed to recognize and protect the rights of EVERY individual who inhabits this planet.

If you're a law student or a lawyer or you know someone who is, please tell them about Rebecca's case. If you're not a lawyer and you don't know anyone who is, tell everyone you know anyway. This is how Harvey Milk was able to defeat the Briggs Initiative in California. People are much more hesitant to deny other people their rights when they're able to put a human face on the situation. That's why coming out is probably the single most important political choice a queer person will ever make is his/her life. It's a big risk, but don't you think it's worth it?

Your letter may or may not persuade the ACLU to take the case and it may or may not persuade the EEOC to look into it, either. But I'd rather say that I was defeated after trying than say I never tried because I was afraid of defeat.

Send your letters to Rebecca Kastl at [email protected].