Dispatches From the Umbrella Wars

(republished from my Facebook Notes)

"Travellers Surprised by Sudden Rain", Hiroshige, c. 1800

18 June 2011

It would seem that the main battles of The Umbrella Wars, the pet name I have for the arguments over whether or not trans people should remain under the so-called “Transgender Umbrella”, whether or not certain members of our community are legitimately transsexual people or are just playing “dress-up” temporarily, whether or not the word “transgender” is indicative of a massive conspiracy to eliminate transsexual people, and whether our association with the rest of the LGBT community has been of any benefit to us at all, are finally joined. Many in our community have fought to stave off this divisive conflict, while others have sought to hasten its arrival.

The initial skirmishes have been underway for quite some time, notably, the well-known conflict between Autumn Sandeen and Ashley Love that has additionally affected so many others, but the fighting has been spotty in the past, until now.

In the past weeks, we have seen articles at the Dallas Voice discussing the case of Nikki Araguz devolve into a debate over “transsexual” v. “transgender” with little to no discussion of the facts of Nikki’s case. Mercedes Allen has published an article at the Bilerico Project searching for a replacement for the “Transgender Umbrella”, the comments upon which have equally devolved. Mercedes published a follow-up last night at Bilerico that caused me to write this article, and which I feel certain is going to continue the rancor. Mercedes has a third article planned, she says.

Abigail Jensen wrote an excellent and insightful article describing in detail why, as I have been saying in many places for a long time now, from a legal theory standpoint, the debate over terminology is irrelevant and counterproductive to securing our rights. Her article, posted to her Facebook Wall, has gone to well over 200 comments, many having been deleted for being off-topic and abusive. Abigail’s article was cross-posted to Pam’s House Blend, where now it stands at well over 100 comments, many also running afoul of the new, more stringent commenting stance by the baristas.

The War has gotten so heated that it is contributing in large part to discussions of whether or not Bilerico ought to remove commenting abilities altogether.

My own Facebook Wall and posts to Tumblr, as well as responses to all the articles above have generated no small share of conflict. A post by Zoe Ellen Brain to her Facebook Wall of a related article by Joann Prinzivalli, a principal plaintiff fighting in New York City for the right to change sex markers on birth certificates, has exploded in similar fashion, about to hit 300 comments, helped in no small part by myself, Abigail, Cathy Brennan, and Ashley Love, among others.

In the midst of all the clamor declaring the death of the Umbrella and the din of its dissection, I have yet to hear a compelling argument for how the legal needs of sex and/or gender variant people change depending on how they identify, despite the fact that some, such as Zoe Ambrosine, would have us believe that gender is a figment of our imaginations, or merely a product of lifestyle choice.

I think that it is important, if we are to make any progress at all healing the wounds and bridging the divides in our community, or simply moving beyond them, that we must recognize first that the terminology we use means different things depending on context, and that we must make clear at the very least to each other, and preferably also to those outside our community, what context we are personally employing when discussing these issues. Everything that follows from this point is heavily dependent on the definitions I personally find compelling, so I encourage you not to rush too quickly to conclusions about what I have to say here, should you continue to read, but to consider my words with my definitions in mind.

We really can no longer afford to allow “gender” to replace “sex” in our discourse simply because certain members of our culture, both within and without our community, feel ill at ease discussing anything to do with the human function of reproduction. That we, as a whole society, have allowed “gender” to largely supplant “sex” as our chosen word in an attempt to ensure comfort for others has been, I believe, a grave mistake which has led to severe disparities in the abilities of people to understand our collective plight.

It will be hard enough to overcome the legacy of discourse about these terms generated by the ciscentric medical, psychiatric, scientific, and legal establishments that have vested interests in defining these terms and perpetuating our dependence upon those establshments, as well as the equally ciscentric academics, feminists, and queer theorists, that we may be heard in our own right as to our own lived experiences without continuing to fight misconceptions caused by definitions of these terms previously imposed upon us. We must, therefore, re-define these concepts for ourselves, and we cannot allow those definitions to become embroiled in arguments over the question of their validity. They are very real, and all of us have cause to know it.

"The Reality of Sex and Gender", Gemma Seymour, 2010

Sex and gender, while the words are often used interchangeably in our culture, are no longer thought of by those who make a habit of studying and classifying things as being one and the same. Sex is a biological reality; this is not in dispute. However, we now understand, thanks to modern science, that what we once thought of as a very cut-and-dried binary system with few exceptions has proven to be far more complex than we imagined in earlier times. For this reason, leading thinkers on the topic refer to sex as a “spectrum” or “continuum”.

The biological mechanics of sex can be summed very simply. Sex is an evolutionary reproductive adaptation which privileges a particular inheritance pathway that presents certain advantages for genetic replication over asexual reproduction. That’s it. Given what we now know about biology, I believe that anyone who tries to tack on any further definition is doomed to futility. While the range of sexed characteristics falls into a continuous pattern of distribution whereby two general paradigms emerge, any notion that the range of sexes can thereby be reduced to two is living in denial of science.

Similarly, “gender” is an evolutionary adaptation arising out of sexed biology consisting primarily of behaviors which function to some extent to improve one’s availability for reproduction. Additionally, certain types of behavior have traditionally become associated with different roles in a society in which a division of labor is one of the cornerstones, a cornerstone without which society fails to develop in the first place. As with sexed characteristics, gendered characteristics exist in a continuous pattern of distribution in which two general paradigms can be observed, but to mistake this for a cut-and-dried mutually exclusive binary is a denial of reality.

Our society has traditionally functioned by separating people into these two paradigms of sex and gender to the exclusion of every other possible permutation, and perhaps in earlier times when we did not understand the universe to the extent we now do and our division of labor was more closely related to immediate survival needs, this may have been forgivable. Certainly we cannot now, in our modern era, forgive the existence of this overly restrictive system, given what we have learned in the meanwhile.

That certain people exist for whom the traditional categories of sex and gender are unsuitable in some way is a tautology. We are, after all, here, discussing our own existence. Many of us seek in some way to redress the fact that we are uncomfortable with our sex and/or gender situations, and it is here that we find the only real distinction that I feel it necessary to make, and indeed that ultimately may be possible to make, within our community. Either one changes one’s sex on a permanent basis using all the medical, psychiatric, legal, and social tools one has at one’s disposal to the extent that one is able, a process which we call “transition”, or one does not transition.

Note that I make no distinction over how much distress one may or may not feel over the initial state, thus creating a hierarchy of those who are or are not “really” suffering, but emphasize a conscious, permanent change to the extent one is able. Note also that I make no reference to one’s initial sex or gender, or one’s target sex or gender, or even whether or not any of those things can be described with any accuracy by the two traditional paradigms.

By undertaking transition, one is by this definition a transsexual person, and may or may not also be a transgender person, for the literal meaning of these two words is “change sex” and “change gender”. Often, a change of sex is accompanied by a change in gendered behavior to at least some extent, especially for those of us who may have been unfortunate enough to adopt as habit certain gendered behaviors that allow us to avoid scrutiny, and these behaviors are often changed if for no other reason than a simple desire to continue to avoid scrutiny in one’s target sex, but a change of gendered behavior is not necessarily a requirement for changing one’s sex.

I realize that there are those who have concluded that because our technology does not allow for a complete change of all sexed characteristics that a change of sex is therefore impossible, and therefore we must speak only of changes of gender. I say that this is a short-sighted approach. I say that to the extent we can change anything about our bodies that results in a successful alignment with who we feel ourselves to be, we are in fact changing what we can about our sexed characteristics. We also should not limit our conception of such things when we cannot have any certainty as to what the future of scientific advancement may mean for us.

Our gendered characteristics may have their roots, ultimately, in biological characteristics, but they are for the most part learned behaviors rather than the tangible substance that is our flesh, and while unusual gendered behaviors are considered taboo to a large extent in our society, and may arise from personal preferences whose origins we may never precisely determine, there is no medical or psychiatric treatment known to successfully modify those aspects of our consciousnesses in which those origins lie.

Transition, as many of us here have personal cause to know, is fraught with pitfalls and roadblocks, but while those of us who are committed to transition may face all of them, we still should not discount, as a matter of human decency, the fact that there are people of sex and/or gender variance who for a variety of reasons may not transition, but face many of the same pitfalls and roadblocks as transitioners. Not all, but at least some.

For this reason, among others, I fail to see that the needs of transitioners are in any way compromised by respecting the needs of those who do not transition, nor do I see that the needs of those who transition to the fullest extent we can muster are in any way compromised by also respecting the needs of those who for whatever reason are not so fortunate to avail themselves of every possible means of transition.

Blue Umbrella with Stars

We all, as human beings, are possessed of certain unalienable rights, and it is this concept that we know well is the basis for our modern society here in the United States, and for many others around the world. We have a right to live, we have a right to the dignity of our own bodies, we have a right to our own identities, we have the right to live freely, unencumbered by undue discrimination by others. Our rights are not dependent on the existence of any form of government for their validity, rather we form legitimate governments by relinquishing only enough of our rights so as to empower an external agency to protect those we retain.

The adoption of transgender as an umbrella term, regardless of how the extremists of all factions in our society may view it, was never understood by most people to be anything but a united front for the purposes of securing the guarantee of the equal protection under the law of the inherent, unalienable, natural, human, and civil rights that have heretofore been denied us to varying extents. It was not done to erase identities, to impose a uniformity of opinion, to convey a sense of any homogeneity of our community to society as a whole, or to suggest that there is any one true way to be an authentic member of our community. It was simply a recognition that no matter where we came from and no matter where we are going, that we all of us face similar challenges to recognition of our selves by the rest of society. Some may face more, some may face less, but all the challenges we face are drawn from the same superset of sex and gender related issues.

Yes, we aligned ourselves closely with the communities of non-traditional sexual and affectational orientation. We should be proud of this, even if we feel no particular individual affinity for those communities, because the challenges we face in seeking recognition of our validity and our personhood stem in many ways from the same fount as the challenges those communities face, and again I will note here, as I have previously many times, that that fount is the perceptions of others who view us as unworthy to be considered their peers, not any fundamental differences in “sexual identity”, “gender identity”, and “orientation identity”.

We should be proud of this association, because we should be proud to stand for the equal protection under the law of the rights of each and every human being. It also happens that many of us in our own community are also members of the non-traditional sexual and affectational orientation communities, and we should be as mindful of that as we should be mindful of those in our community who have no affinity with them at all. Even though our relationship with those communities is often a rocky one, on both sides I believe we have common grounds for solidarity. All are human, all are deserving of dignity and respect.

The umbrella has failed to remain compelling for many, not because of any inherent flaw in its canopy, but because of misunderstandings about its purpose compounded with mistaken beliefs by many that the challenges faced by or the needs of transitioners v. non-transitioners, by and of those who avail themselves of transition to a greater v. a lesser extent, are in some essential fashion fundamentally different. I believe they are not, that they differ only in number and severity, but that they all come from the same pool. Additionally, we have, I am sad to note, a divisive faction within our community which would like to practice and enshrine elitism.

Example of a City of New York Certification of Birth

I hear many people arguing over documentation standards, and whether or not we should have, indeed whether it is possible to have, objectively specified standards for the modification of the sex and gender markers on our legal documents. There are, as I see it, four ways to approach the problem, which may not necessarily be mutually exclusive. We can remove sex and gender markers on all our documents; we can require onerous proofs to obtain permission to change those markers; we can institute more relaxed standards of proof; and finally, we can allow for a wider range, perhaps a virtually unlimited range, of sex and gender designators.

In every examination I have made of this subject, I have come to the conclusion that the removal of sex and gender markers from most, if not all, documents would be ideal. In an era when the usage of photographic identification documents in near universal, what extra security is provided by putting an “M” or an “F” next to the picture? If the person’s appearance is markedly masculine or feminine, surely such a label is superfluous, and if the person’s appearance is androgynous or in any way not easily determinate by others, surely no mere label will resolve the confusion.

However, such sex and gender markers have a long history in our culture, and while this solution may be the most helpful to those for whom gender is a fluid thing or for those who identify as having multiple or parts or aspects of multiple genders, I doubt we are likely to convince a sufficient number of people that forgoing the usage of these markers is to their benefit any time soon, so it is also my belief that we will be stuck with the reality of them for some time to come. In that case, we should work for, at the very least, expansion of the categories of acceptable sex and gender markers. I will not here argue for or against any particular such marker.

What I would rather examine is whether or not we ought to require extensive proofs in order to obtain permission to change our markers. What I will ask, is for someone, anyone, to explain to me how a relatively lax standard for proof is of any danger whatsoever, to our community, or to society as a whole, because I believe the danger is non-existent. I will ask you to bear in mind that I consider any requirement for proof of surgical modification of one’s reproductive organs to be a forcible requirement for sterilization, and if such things do not give you pause, I would implore you to spend some serious time in self-reflection.

It is my belief that the standard that should be used for all sex and gender marker changes on all legal documents where such changes may become necessary is the standard that is already in place in my home state of New Jersey, where a change of sex marker on one’s driver’s license requires one to obtain and complete a form from the NJ Motor Vehicle Commission, entitled “Declaration of Gender Designation Change“. In no way can any person simply walk into the offices of the Motor Vehicle Commission and request a change of sex marker on a whim, as similar situations have been represented by those who desire retention of more stringent standards.

The exact wording of this form is as follows:

“I wish to change the gender designation on my driver’s license/identification card to read (M/F). I hereby certify, under penalty of law, that this request for change of sex designation is for the purpose of making my driver’s license/identification card reflect my gender identity, and is not for fraudulent or other unlawful purposes.”

This must be corroborated and countersigned by a licensed medical or social service provider with the following statement:

“My practice includes assisting, counseling or treating persons with gender identity issues, including the applicant named herein, and in my professional opinion, the applicant’s gender identity is (M/F), and can be reasonably expected to continue as such for the foreseeable future. I hereby certify, under penalty of law, that the foregoing information is true and correct.”

At the bottom of the form is a notice:

“A misstatement of fact or false statement made in this or any application is punishable by fine and/or imprisonment and may result in the suspension of driving privileges. (NJSA 39:3-37).”

The current penalties for violation of the cited statute are a fine of no less than $200 and no more than $500, and/or imprisonment for up to six months, at the discretion of the court. In addition, the driving privilege will be suspended for a period of six months to two years.

This is a legally binding document. Falsifying the information on this document subjects one to serious legal sanctions. I simply fail to see what possible harm could come to society from people submitting to such a legally binding process of declaring their sex and gender. By completing and submitting such a document, one has legally declared one’s transition, and is by definition a transsexual person, and I fail to see how such a declaration being considered sufficient evidence for a change of sex or gender marker can possibly have any negative effect on other transitioners.

Image of US Passport

I will also note that this is similar to the current standard of proof required by the US Department of State when changing the sex marker on one’s US Passport, and it is very likely that a similar standard that will be adopted in the City of New York should the plaintiffs in the lawsuits challenging the current policies concerning changes of sex markers on the Certificates of Birth issued by the Office of Vital Statistics prevail.

Those three types of documents are the Holy Trinity of legal documentation in our society: driver’s license, Passport, and Certificate of Birth. There are additional documents, but all in some way depend on the existence of, primarily, the Certificate of Birth, the last piece of the puzzle to be liberated from the tyranny of sterilization requirements.

Under this scheme, non-transitioners would have no access to documentation changes, because by requesting a sex or gender marker, one automatically becomes a transitioner. This is not something that people will do lightly, as one is liable for the truth and one must have their declaration corroborated by a person who is in a position to be professionally involved in the provision of transition-related healthcare.

I do not agree that adoption of such a scheme would create a situation where the lack of surgical requirements for everyday life would necessarily lead to a mandated denial of healthcare financing for transition-related healthcare, as has been suggested by some. I have seen no evidence that that claim is likely to be true. In any case, the problems of healthcare and healthcare finance in this country in general cause any concerns over the financing of transition-related care pale in comparison.

So long as we require financing for our healthcare, and I use the term financing specifically because to call it insurance is patently ludicrous as it cannot possibly be considered anything akin to traditional notions of insurance when without such financing most people would have access to little or no healthcare of any kind at all, we can and must also require from our laws a guarantee that we cannot be denied financing for the transition-related healthcare which the medical and psychiatric organizations all agree is necessary, regardless of what is printed on our legal identity papers.

In fact, the whole argument falls flat on this basis! One cannot claim that doing away with surgical sterilization requirements will in any way negatively affect transition-related healthcare financing when the justification for what little financing we have managed to secure is based not upon the requirements of legal identity documents, but on (supposedly) the professional opinions of healthcare practitioners.

Another front in this war, perhaps in the end the most important front, is the battle over securing the rights of sex and/or gender variant people to access appropriate public accommodations. This, of course, is not going to come as a new revelation to anyone here, being as it was the key issue in the failure of ENDA last year and more recently, Maryland’s GIADA, otherwise known as HB235.

There are people both within and without our community that believe that the segregation of public accommodations is both necessary and desirable. While I happen to believe that neither of these things is actually true, I recognize that the bulk of our society does not feel the same way, and that the reality of sex-segregated facilities is something we are going to have to live with for some time to come.

However, rather than follow the language of last year’s ENDA, as Abigail Jensen noted in her article, I think we need to find a better solution. The ENDA solution, as I see it, creates a new standard of “separate but equal”, a priniciple which was found long ago to be unconstitutional. Rather than creating separate facilities for sex and/or gender variant people, and as a compromise with the idea of creating single-person public facilities everywhere, something which is clearly economically too great an obstacle for many to consider, I believe that what we need to do is to follow the example of the Americans With Disabilities Act of 1990, and create separate facilities, not for sex and/or gender variant people, who are in any case specifically exempted from the provisions of the ADA, but for all those in our society who need or require privacy and for those who cannot or will not regard their fellow human beings with dignity.

Over 20 years ago, the ADA was passed despite strong objections from the business community that it would create onerous standards of compliance that would be extremely damaging to the economy. I think we can all see now that none of these fears panned out.

We are not a country that was founded to protect majority rule. We are a country with Constitutional, legislative, executive, and jurisprudential traditions specifically designed for, and tasked to, the protection of suspect classes from the predations of the tyranny of the majority over our inherent, individual, unalienable, human, civil rights.

I am not concerned with defining “male” and “female”. I am not concerned with defining “masculine” and “feminine”. I am not interested in any definition of who is an authentic transsexual that involves a diagnosis of a psychiatric disorder, the basis of which is currently in dispute within the very organization that publishes that diagnostic manual containing the description of that disorder, as well as within the community of healthcare professionals, especially those who specialize in the provisioning of transition-related healthcare. I will not be designated mentally disordered by those who have a vested interest in such a diagnosis.

I am not concerned whether or not transitioners do or do not follow the guidelines set forth in the WPATH Standards of Care. I refuse to allow any other person the right to determine for me, or to determine the validity of, my identity. Period. The only diagnosis that ultimately matters in the case of transsexual people is the self-diagnosis that one is, in fact, a transsexual person. We have the inherent unalienable human right to determine our own identities, and we should cede this right to no one, ever, no matter how daunting the task of self-determination.

A cross-dresser may not face the need to change their sex or gender markers on their legal identity documents, or to access transition-related healthcare, but they do face the need to access restrooms where they will be safe from assault. This same need is faced by many transitioning people who do not, can not, and possibly never will walk this Earth without the constant gaze of the scrutiny of others. A transitioner who is for some reason unable to avail themselves of every possible aspect of transition still needs to access non-stigmatizing, non-pathologizing transition-related healthcare and still has the right to their identity, this is the same need faced by those who obtain sexual reassignment surgery, even if the treatments may differ. All need a guarantee of access to housing, employment, and public accommodations appropriate to their sex and gender, and this is true whether those accommodations are sex-segregated or not.

"White Umbrella and its Shadow", Remí Carreiro, 2009

I do not fight to crowd everyone under an umbrella they may not wish to stand under. I do not claim that our community needs one word to define itself to the world. The languages we humans use to communicate with each other have a startlingly powerful ability to use multiple words in a description where necessary. All that I wish to see is that a recognition spread within and without our community that while we may not all face exactly the same hurdles in exactly the same order, the hurdles we do face are all of a like, are all built from the same wood, and all must be cleared. If we can do this, together, then our differences and distinctions will be seen, as they properly should be seen, as no hindrance to our liberation.

Unfortunately, as I see it, the long history we have in our culture of oppositional sexism and heterosexism still runs as rampant through our community as it does in the greater society. Certain people are afraid of penises, or of men, because they fear assault, rape, murder, or other crimes that might be perpetrated against them by males, and they feel that the best way to ensure their safety is to take away all the penises. Others are afraid of being perceived as men or homosexuals (because then people will think they are…you know…twisted, dangerous perverts), or a whole host of other things that still boil down to hatred or fear of anything related to males, masculinity, and homosexuality. I will not claim that many of these people do not have grounds for their fears, but we cannot allow voices ruled by fear and hatred to set the agenda while members of our community are quite literally dying because all of us are denied the guarantee of the equal protection under the law of our rights.

Don’t like that umbrella? Fine, me neither; it was dripping water down my back, anyway. Throw it away, we’ll fight in the rain, if need be.

While we may each perceive different reasons to be concerned about conquering any particular hurdle in our paths, the fact remains that we are each still required to jump the same height over the same distance over the same bar. So, let us each fight for each denied right for our own individual purposes. It matters not that perceptions within the community differ so long as the end result is the same, and that end result must, I believe, be the same, for if the hurdle is the same hurdle and we each jump the same height and distance to clear it, how can we land in different places?

Whether we hold an umbrella over ourselves or not, we still need to stick together and respect our differences, our shared humanity, our equality, each other, and ourselves. Continuing to argue over whether we identify as “post-transsexual”, or whatnot, is entirely missing the point of the exercise. After all, nobody ever got to be post-transsexual by not going through transition, first. It is, ultimately, the processes involved in transition that are the common threads that bind us together, and it is those processes to which we need to secure access regardless of how we personally identify.

The Seal of Yin-Haan