From the article, by Toni d’Orsay:
I certainly have my own opinion on the “transsexual” vs. “transgender” debate that has ignited many a flame war on the internet over the last few months between those who want to separate our community based on those who have had or, at least, want to have, SRS, from everyone else, but I’m not going to express that here. Instead, I’m going to take a position that I’ve never seen expressed by anyone else, although some have come close. My position comes from my background as an attorney and my understanding of how anti-discrimination laws are written and are intended to operate.
Here’s what I know to be true: the dispute about who is transsexual and who isn’t is irrelevant to the fight for protections for transsexual, transgender, genderqueer and every other gender variant or gender nonconforming person in this country. Why? Because of how anti-discrimination laws are written for both practical and constitutional reasons.
Excellent article is excellent. Please read, and also read my response, which I will post here as well, because Toni hasn’t gotten around to passing it through moderation, yet. (Note: i talk about Toni’s reference to the ADA here, but that was actually in an earlier article.)
Thank you for taking up this topic. This is the very thing that I have made the focus of my activism, and why lately I have been spending so much time trying to point out that all this political in-fighting in the trans community is so irrelevant and counter-productive. Concatenating the existing laws, we can see that in the areas of sex and gender, the already existing legislation that is in force today covers: sex; sexual orientation (to which I also would like to see added “affectational orientation”; gender; or, gender identity, appearance, expression, or behavior, regardless of whether or not traditionally associated with a person’s sex or gender as assigned at birth.
That covers *everyone*, and obviates any need for us to argue about who is transsexual and who is transgender. However, the sad fact of the matter is that the real fight is about, and I know I keep pointing this out, so forgive me, as Barney Frank is famous for saying, “penises in women’s showers”.
The bathroom argument is usually brought up, but I think that most people possess enough intelligence to understand that women’s restrooms, in general, contain individual, locking, semi-enclosed stalls, and that laws against public indecency or obscenity already cover the possibility of lewd displays outside of those stalls. If your genitals are showing outside a locked stall, you’re quite simply doing it wrong. The bathroom argument is really being used as a proxy for the real issue of sex-segregated spaces where nudity is practically unavoidable: showers, lockers rooms, and dressing rooms are the primary venues.
Like you, I think the ideal situation would be that we do away entirely with sex-segregated facilities and that people simply get over their insecurities, but I don’t think that’s actually going to happen, if for no other reason than that the mating game demands that we each be given enough privacy from our chosen affections in order to compose ourselves to our best advantage.
The solution, as I see it, is even better than that which you describe above as it was written into ENDA. For you see, that phrase in ENDA creates another situation which has already been found illegal in this country, “separate, but equal”. Forcing trans people into a ghetto is an attack on a suspect class that cannot be tolerated. The best answer, ironically, is provided by the example of the very same Americans With Disabilities Act you noted, above. As an aside, I wonder if the person you spoke with about her lack of knowledge concerning the transsexual exclusion from the ADA is the person I think it likely to be.
The answer is not to exclude trans people. The answer is to exclude people who are uncomfortable with equality. By providing fully-private, single-person facilities for any person who needs or simply desires it, or for those who just cannot stomach sharing facilities with their fellow men and women because they are uncomfortable with the natural variation in human bodies, we solve the problem with a penstroke, just as we made it illegal to exclude people with disabilities from such facilities with the ADA.
Whichever path we take, the ENDA paradigm or the one I suggest, there are going to be complaints over the government forcing establishments to spend money upgrading their facilities as a result of the new law, but these are the exact same complaints we heard during the push to pass ADA. ADA has now been in force for over 20 years, and no one gives it much thought anymore.
The ADA paradigm allowed businesses large exceptions for existing facilities, but simply required new facilities to accommodate all. This is exactly the model that a new gender-inclusive anti-discrimination law should follow. Eventually, the newer facilities will take the place of the older ones, and newer facilities will inevitably have the advantage of being able to draw from a wider customer base, making them more competitive than those who do not upgrade.
This can be looked at as a jobs bill, creating a huge market for every profession involved in the building trades, from interior designers all the way down to tradesmen and laborers.
When you look at it that way, then we can let Jesse Helms rot in his grave, and laugh at how we easily side-stepped his transsexual exclusion clause, using the law he poisoned to catapult us into a new era of equal protection.