From Bay Windows:
Trans conference debates merits of anti-discrimination laws
Okay, the mere fact that (ostensibly) trans people are having a “debate” on this adds fuel to the belief of some that the true needs of trans people are being subverted in favor of exercies in queer theory (some legitimate, some rather loopy.)
Dean Spade, a teaching fellow at Harvard Law School and founder of the Sylvia Rivera Law Project, argued that in practice it is almost impossible to bring a successful case under such laws.Spade said that for the past several decades a series of Supreme Court decisions has made it nearly impossible for someone pressing a discrimination claim to prove intent on the part of his or her employer, blunting the effectiveness of the laws.
So I guess he’d be in favor of completely abandoning efforts to secure same-sex marriage, given that there have been a mega-series of court decisions (and ensuing state laws and constitutional amendments) foreclosing that?
“And I think all of us as lawyers recognize that a lot of these laws don’t really work,” said Spade, speaking on a Feb. 29 panel that presented an overview of the trans legal landscape. “I think we know that anti-discrimination laws aren’t enforced. I think we’re pretty aware that racism and able-ism and national origin discrimination, all other things that have been illegal for a while, haven’t gone away because the law changed.
All of us? All of who? All trans attorneys? No one consulted me on that pronouncement.
What a fucking moron.
This is the type of clown who has appropriated the ability to make a living as any form of representative of trans people?
Tell ya what. Lets take a legit poll of African-Americans and see if they think things are better now than they were prior to the Civil Rights Act of 1964 – not perfect, but better, perhaps even much better.
Now, I’ve been a major critic of some categories of civil rights laws – most notably the genre of local ordinances and state/local executive orders that aren’t enforceable at all. That’s a different issue – and, if that’s what he was talking about, then he really didn’t make himself clear.
Its never going to be perfect.
All civil rights laws have loopholes that are clear.
All civil rights laws have loopholes that christofascist judges can use to re-write said laws into virtual non-existence.
So give up?
Why not give up and let St. Barney of Frank do whatever the hell he wants to subjugate trans people politically? Why not give up and never say anything about how major gay rights groups have a worse track record on hiring trans people than do most inhuman multinational corporate monoliths? Why not just give up live as the sex you were designated as birth and why not give up and adopt the sexual orientation that your parents undoubtely expected you to have?
I don’t think there’s any kind of naiveté amongst lawyers about that. And yet we are still wedded to those strategies in part because I think sometimes we think maybe they have another role. Maybe when we pass these laws they have a symbolic role, they change what people think of us. … And those are questions I want to keep on the table
You mean like their presence on the books inspiring employers not to discriminate in the first instance when, otherwise, they would have?
Sorry, dude. That’s not symbolic. That’s substantive.
What a moron.
At a forum later that day on sex segregation and gender regulation Lisa Mottet, director of the Transgender Civil Rights Project for the National Gay and Lesbian Task Force (NGLTF), provided a different perspective, arguing that the 13 state non-discrimination laws that cover transgender people have provided no major court victories because no one has yet tested them.
Well, not no one. Of course, when you get down to it there has been only one – the Minnesota catastrophe: Goins v. West Group (though there have been a few cases following that one, all ending at lower levels.) And with each day that passes I’m more convinced that that decision was not an honest one (my suspicion is that Republican Chief Justice Kathleen Blatz – a state legislator when the law was passed – was not too thrilled to know that she had voted for a law that was more than GLB; during floor debate in 1993 she had indicated that she thought the law would be the same as that which existed in Wisconsin – which, of course, it was (and is) not.)
She said the solution is to test those laws in court and establish case law around gender identity discrimination, but for people facing discrimination there are many factors that prevent them from filing a lawsuit.“I am troubled by the fact that there aren’t a lot of lawsuits under these laws. Part of it is they’re new. We passed four laws last year, so a year ago we only had nine state laws for example, so that’s part of it,” said Mottet. “But I think it’s also that people don’t know they have rights, that people aren’t in the financial position to hire an attorney, and [when] there’s still a lot of other discrimination happening in a person’s life, their highest priority isn’t going after an employer that fired them. Their highest priority is finding a new job, finding a place to live that they can afford.”
I can’t say I disagree with any of that (though I feel obligated to add that, despte Mottet being good at what she does, I still feel it is a sickening travesty that NGLTF continues to employ a non-trans person as its trans legal expert.) And though I increasinlg find myself at odds with the Phyllis Frye’s reasoning on many issues, she did saliently add to why the laws don’t generate as many high-profile cases with published decisions as might be expected:
“One of the reason why there is [little litigation under the non-discrimination laws] is that as litigators our primary duty is to represent our client, not to make case law, as much as we would like to. And if we can browbeat or otherwise get an employer or city or somebody else to actually follow the law, if we can sit down with their council and explain to them, ’A, B, C – oh, light bulb! – and get them to comply or settle, then that is our goal,” said Frye.
I’ve found Phyllis to be out of touch on some things of late, but this is basic attorney-client stuff. She’s on the mark.
The debate over non-discrimination laws was part of a larger debate during the conference between two strands of the transgender movement. Paisley Currah, associate professor of political science for the City University of New York- Brooklyn, said during the legal overview panel that one political stance within the movement is to push for state recognition of transgender identity and transgender inclusion in structures like non-discrimination laws; a more leftist stance is to advocate for an end to all state efforts to define gender and for a more equitable redistribution of resources rather than equality under the law.
And who might be playing the leftist theory game? Transsexuals (disproportionately MTF) who have a very real fear of ending up living under a bridge if they get fired – or never hired – for having identification documentation that has a sex marker discrepancy?
Or folks (disproportionately FTM or gender-queer) who are privileged to rest comfortably each night knowing that they collect a paycheck espousing theory-oids that may or may not be in the best interests of those they purport to speak for?
Then, up to the plate stepped Sharon McGowan.
The divide was particularly evident during an exchange between Spade and Sharon McGowan, staff attorney for the American Civil Liberties Union (ACLU) LGBT Project, during the legal overview panel. An audience member asked panelists to compare the ways that governments define both gender and race, and Spade answered, “As a trans person I feel frustrated that the state uses gender categories to administer everything that I need, and I’m really aware of that, and that can allow me to build a critical analysis of how the state administers wellbeing, period, right? So that I can have an ally politics as well with all the other sets of people who are misclassified and who experience this maldistribution that is what the state is administering.”
This is less than one step removed from Janice Raymond / Norah Vincent transsexual exerminationist philosophy.
But McGowan, who also sat on the panel, countered that some transgender people may not want to do away with gender categories. She said while some may argue that the push for legal recognition of transgender identity means being co-opted by mainstream society, for others that recognition is important.“I get so inspired when I hear Dean’s rhetoric, but the way in which I think it assumes that there is a vision that everybody would just be going towards if we just stopped being such pussies about the whole thing and just did it and gave up the man – and my question is, at some level, for trans folks who feel very strongly as though a female gender identity in a world in which female identity means something, are they just co-opted, or is there something there that is also something worth fighting for, and can the two exist at the same time? … There is for me a tension in figuring out what is co-optation versus what are sustainable parallel tracks, if such a thing can exist.”
Not to place myself in the radical HBS camp (although I share some of the HBS folks’ views, there are some aspects of their posture of late that do bother me – and other transsexuals who, by physiology and identity, would seem to qualify as HBS), but it is people like Spade who are co-opting.
Unlike most HBS folks, I see no problem with transsexual and transgender co-existing. My being a woman who happens to be of transsexual experience is not inherently incompatible with gender-queer/third-gender folks. Unfortunately, I feel that my position may be solely the product of the fact that I am an incredibly cynical attorney who has never really bought into the kum-bah-ya shit of either HRC or the radical gender leftists.
However, I believe that time will prove me right.
In the mean time, thank you Sharon, for at representing the voice of those who, increasingly, have no voice at gender conferences.