hunter of justice

European Commission warns of lgbt rights deficiencies in nations seeking EU admission

The European Commission has published its 2009 "Progress Reports" on the countries now or potentially seeking EU membership: Croatia, the former Yugoslav Republic of Macedonia, Turkey, Albania, Bosnia and Herzegovina, Montenegro, Serbia and Kosovo.

According to ILGA-Europe:

LGBT issues are covered in all reports and stronger language is used by the Commission when referring to the human rights violations of LGBT people and to the non-compliance of the states to their human rights obligations under European/Accession partnerships. It is also positive to notice that the reports give specific recommendations to the states to introduce anti-discrimination laws and policies that are in line with the EU requirements. The Reports also emphasise the need to level up ‘the protection against discrimination in practice’ in the countries where the laws were adopted (Croatia, Serbia). In particular, the Commission has criticised the governments for failing to provide adequate protection to Belgrade Pride participants which led to cancellation of the event, and for the violation of freedom of expression and association in the infamous case of Lambda Istanbul in Turkey.

ILGA-Europe's compilation of specific references to lgbt issues follows the jump -->

N.Y. Court Slams Doctor’s Note Requirement for Name Change

by guest blogger Harper Jean Tobin - cross-posted to T-Equality Blog

A New York appeals court yesterday issued a two-page ruling overturning a lower court’s requirement that a transgender man present medical documentation supporting his petition for a name change. The NYC-based Transgender Legal Defense and Education Fund, which represented the petitioner, said in its press release:

[T]he appellate court wrote, "[t]here is no sound basis in law or policy to engraft upon the statutory provisions an additional requirement that a transgendered-petitioner present medical substantiation for the desired name change."  The court's decision sends a powerful message that transgender people must be treated equally and that they cannot be subjected to different legal requirements than everyone else. People’s names are fundamental to their identities.  This decision confirms that each one of us has the right to be known by a name we choose.  That decision can’t be second-guessed by doctors, therapists or anyone else simply because someone is transgender.

Upon learning of the ruling, Olin [Winn-Ritzenberg, the petitioner,] said, "This means that I can finally change my name and move forward with my life.  My gender transition has been a very personal journey, and no one is in a better position to decide that I need to change my name than I am."
…

It’s well settled in law around the country that transgender folks can follow the same simple procedures for name change as individuals who are changing their names because of marriage, religious conversion, or for any other reason. Yet, around the country, judges periodically try to make it harder for trans people than for anyone else. Despite numerous prior New York court decisions supporting the right of transgender individuals to change names without meeting any special requirements, this particular lower court had been imposing the “doctor’s note” requirement routinely on transgender individuals. While most individuals were able to comply, TLDEF appealed in this case to get rid of this requirement once and for all. Kudos to them, and to the numerous other lawyers who assisted in this appeal, including Lambda Legal.

The terse decision concludes with the unnecessary statement, which has somehow become boilerplate for New York courts, that the grant of a name change is not legal proof of change of gender.

Uruguay passes landmark gender identity law

By guest blogger Harper Jean Tobin - cross-posted to T-Equality Blog

Uruguay’s legislature Monday finalized legislation that will guarantee transgender people’s right to legal recognition of their gender identity based on the reality of their life in society as a man or woman. The legislation, based on similar laws adopted in the United Kingdom in 2004 and in Spain in 2007, is the most progressive of any Latin American nation. Following final approval by the Uruguayan House and Senate, the bill now goes to President Tabaré Vázquez for his signature.

The legislation begins with the statement that “Everyone has the right to free development of his personality according to his own gender identity, regardless of their gender is biological, genetic, anatomical, morphological, hormonal, or other assignment.” An individual will have the right to change his or her sex in the civil registry based upon the “stability and persistence” of gender dysphoria for at least two years. The bill calls for an interdisciplinary expert team, similar to the UK Gender Recognition Panel, to be set up by the government to evaluate applications for civil sex change. Once the civil register has been amended, an applicant is considered to be his or her new gender for all legal and administrative purposes. (A full English translation is not yet available; this description is based on the Spanish version on the Parliament's website.)

In addition to an applicant’s own testimony, the team may consider the testimony of the individual’s health care providers and “people who know the daily lifestyle of the applicant.” However, the law does not require medical evidence be submitted, and “under no circumstances” is proof of surgery to be required. This is similar to the UK law. By contrast, Spain requires proof of some form of medical treatment for a two-year period, except in cases of old age or illness.

Unlike laws in several other countries, Uruguay’s legislation does not require that applicants be childless or unmarried, or that married applicants divorce. The law states only that it does not change existing laws regarding marriage – a concession to conservatives who wanted it made clear that this law does not establish same-sex marriage. Another unusual provision requires a five-year wait in the rare case of an individual wishing to return his or her civil sex to the birth sex.

This is not the first groundbreaking stride in LGBT rights for the South American nation, which lies just south of Brazil. President Vázquez’s Broad Front coalition made Latin American history in 2007 by passing civil union legislation. Earlier this year, legislation guaranteed same-sex couples the right to adopt. The senator who introduced the civil union law has promised that if the Broad Front prevails in national elections later this month, legislation establishing marriage equality will be introduced next year.

Scrutinizing trans bodies in Western Australia

by guest blogger Harper Jean Tobin

The Attorney General of the state of Western Australia is currently asking the supreme court of that state to revoke gender recognition certificates issued to two transgender men there. The two men both prevailed before a state administrative tribunal, which ruled last month that they had met all the criteria required by state law to obtain legal recognition of their gender transition. The Attorney General, however, argues that the state law cannot be interpreted to allow any person to legally change their gender if there remains any possibility of future fertility.

The two men brought unrelated petitions under the state’s Gender Reassignment Act, which allows transgender people to obtain a “gender recognition certificate,” and in turn (if they were born in that jurisdiction) an amended birth certificate. The petitioners, like others bringing petitions under the GRA and related legislation in other jurisdictions, need legal and administrative recognition of their transition order to work, travel, find housing, conduct financial transactions,  obtain public services, and otherwise carry on their day-to-day lives. In this case, both petitioners had received treatment under medical supervision over a number of years, including hormone therapy and surgical procedures. Both testified that they might ideally have wished to have additional surgical procedures, they did not plan to do so because of concerns including costs, medical risks, and limitations of current surgical techniques. Nevertheless, the conservative Attorney General intervened in the case, arguing that the men could not be legally recognized as men because it was not clear they were permanently sterile.

In the resulting hearing, both men were subjected to extensive medical testimony, in which several experts were pressed as to whether there existed some remote possibility that either of these men could become pregnant. When the experts testified that this was all but impossible given the men’s ongoing hormone treatment, they were asked repeatedly to speculate on whether a future cessation of hormone use – however unlikely that might be – could eventually result in regained fertility. Ultimately, however, the tribunal concluded that an individual’s right to social recognition of their gender should not depend upon such considerations, and granted the men’s applications.

The state attorney general immediately appealed. Explaining the decision to appeal, the AG said: “What this decision has said is that a person can be legally male and yet potentially bear children. This is a major decision which, if allowed to stand, could have significant and unforeseen effects on the laws of this State.” Tellingly, AG did not state what those “significant and unforeseen effects” might be, nor did he cite examples from other jurisdictions where present law is clearly consistent with the tribunals decision, such as Spain and the United Kingdom. Given the almost totally gender-neutral laws surrounding parentage and inheritance today, it is difficult to imagine what “significant and unforeseen effects on the laws” of Western Australia might be. Indeed, one strongly suspects that the AG is more concerned with perceived social effects of permitting individuals such control over their bodies and social identities than with any tangible legal effect.

                Aside from failing to articulate any actual reason for his legal position, the Western Australia attorney general’s position betrays an unseemly governmental interest in the private lives and reproductive choices of individuals. Assuming for the sake of discussion that society has some interest in ensuring that a gender transition is reasonably permanent before bestowing official recognition, it certainly has no such interest in preventing transgender individuals, or any individuals, from reproducing. While Australia has often been criticized for the absence of a right to privacy in its federal constitution, a legal requirement that a certain group of individuals be sterilized in order to obtain critical social benefits would seemingly violate that country’s international obligations under human rights treaties. While the two men in this case may not desire to make use of their own reproductive capacity, they clearly should not be required to undergo major surgery for the sole purpose of obliterating any such capacity.

                These bodily integrity and reproductive autonomy dimensions of gender recognition have seldom been recognized by courts. But the attorney general’s appeal in this case seems to present those questions squarely to the Western Australia Supreme Court. Hopefully the state’s high court will rise to the task.

ENDA cometh

The campaign to enact ENDA will begin anew at 10 a.m. today with a hearing before the House Committee on Education and Labor. The hearing will be in Room 2175 of the Rayburn House Office Building. If you inhabit the DC environs, get there early - there will probably be heavy demand for seats.  If that's not an option, the webcast should be available here, or check out Jillian Weiss's liveblogging. Witnesses will include Representatives Tammy Baldwin and Barney Frank; EEOC Acting Chair Stuart Ishimaru; Yale Law Professor Bill Eskridge; and Williams Institute Executive Director Brad Sears.

This year's version of ENDA is HR 3017. It prohibits gender identity as well as sexual orientation as a basis of discrimination. In other respects, it is essentially the same as the version of ENDA that passed the House two years ago (HR 3685).

No bill is perfect, and a number of problematic exceptions have been built into this legislation over the years in the effort to ensure its passage. Section 4(g) expressly limits ENDA's coverage to disparate treatment (facially discriminatory practices) and excludes disparate impact claims (claims based on facially neutral practices which have a discriminatory effect that disadvantages lgbt workers). Section 8(b) provides that ENDA shall not be construed to require any employer to give unmarried couples the same benefits offered to married couples; and Section 8(c) effectively limits the term "married" to heterosexual couples. Section 6 provides that any religious organization that is allowed to discriminate based on religion under Title VII can also discriminate based on sexual orientation or gender identity. 

With regard to dress and grooming codes, ENDA would allow employees to abide by the rules for whichever sex aligns with their gender identity [Section 8(a)5)].  In other words, a transwoman could comply with the dress or grooming code (if any) that applies to all women employees. The problems will come in cases like Jesperson v. Harrah's, 444 F.3d 1104 (9th Cir. 2006) (en banc), which upheld the firing of a (non trans-) woman who did not want to wear make-up at work. The Ninth Circuit found that the make-up requirement was reasonable, and that the requirements imposed on men and women were comparable (clean shaven rule for men, make-up rule for women). Although ENDA forbids discrimination based on "gender-related...appearance," the dress and grooming code carve-out would leave the holding of Jesperson undisturbed.  

Will ENDA finally pass? That question breaks down into two parts: will it pass the House, and will it pass the Senate?  Since essentially the same bill but for the inclusion of gender identity passed the (then more conservative) House two years ago, the outcome in the House will almost certainly turn entirely on the gender identity issue.

When it goes go to the House floor, the Republicans will probably have the opportunity to offer only one amendment (that's how the majority party runs things in the H of R). There is no way to predict whether the Rs will fashion their one shot at killing or crippling the bill around gender identity or around some other issue (like marriage or religion). If the Dems hold it together, the Rs' effort - whatever it is - will fall short. I'm betting that the good guys will win and that ENDA will pass the House intact (although don't press me for anything more than a gut instinct in support of that).

Then it's on to the Senate, where everything is iffier. No version of the bill has been put to a vote in that chamber for more than 10 years (long before gender identity language).  I doubt that there is yet a clear read on its chances of going through with gender identity protection intact. Given everything else the Senate has to deal with this fall, my main prediction is that ENDA won't come up for a full Senate vote until some time in 2010.

Whatever lies ahead, the action starts today.

Contesting birth certificates and "gender permanence"

A new paper by Paisley Currah and Lisa Moore on the struggle between transgender advocates and New York City agencies over the designations on birth certificates has just been published:

Currah, Paisley and Lisa Jean Moore. 2009.  “‘We Won’t Know Who You Are’: Contesting Sex Designations on New York City Birth Certificates.” Hypatia 24:3 (Summer 2009): 113-135. 

Here's the abstract:

This article examines shifts in the legal, medical, and common sense logics governing the designation of sex on birth certificates issued by the City of New York between 1965 and 2006. The experience of transgender citizens illustrates the problems that result from birth certificates’ dual functions as a) an authenticator of identity and b) an historical record. The analysis of our data, generated from participant observation, ethnography, official reports and minutes, and in-depth interviews identifies two key organizing principles animating the debates over the last forty years. Gender fraud dominated the discussions of the 1960s and 1970s and provided the rationale for rejecting the request of transgender individuals to change the sex on these documents.  The requirement of gender permanence figures most strongly in the most recent debates in New York City, and justified the re-imposition of the policy first articulated around fraud: that the genitals  be surgically modified before the state will re-issue an identity document indicating a change of sex. In an era when the foundational facts that sustain guarantees of identity—biometric, social, historical—can change, emerging state practices of identity management and the technologies enabling its growth and spread create real obstacles for transgender individuals.

DoJ gets one right, decides not to appeal Schroer decision

In a good but overdetermined move, the Justice Department has announced that it will not appeal a district court's ruling that discrimination based on gender identity is sex discrimination and therefore invalid under Title VII. The case, litigated by the ACLU LGBT Rights Project, is Schroer v. Billington, 577 F.Supp.2d 293. For more background, see the ACLU's information page about the case and previous posts.

This is the case that I have been saying for months would be an outrage if Justice decided to appeal.  Unlike cases involving DoMA, it does not call into question the validity of any federal statute. From the defendant's point of view, it finds that a particular employment decision was unlawful, and implicitly directs the federal government not to discriminate based on gender identity. In a Republican Justice Department, however, an appeal would have been likely because the law is not settled on the question of whether gender identity discrimination violates Title VII (although the courts have been pretty steadily moving in that direction).

In other words, this is precisely the kind of case where DoJ traditionally has broad discretion not to appeal a decision that it has lost, where public policy concerns dictate otherwise. And the community outrage over the Smelt brief surely eliminated whatever doubt there may have been about pursuing the appeal. So, good for the Justice Department; they did the right thing.

On transgender federal employees and legal history

I've gotten so many questions about legal issues related to federal employees in the past week of Obummer-ness that I thought it might be useful to provide a bit of historical context. In my post about the memorandum that the President signed on Wednesday night, I briefly described the history of the "unrelated to job performance" law that the new memorandum cites, and the potential it holds to protect federal employees against discrimination based on gender identity. The full story goes all the way back to the mid-sixties.

The "lavender scare" and the purges of government workers who were gay or thought be gay dominated the 1950s and 1960s.  In DC, where the greatest attention was focused on federal employees, police regularly entrapped gay men in Lafayette Park (across the street from the White House) and then shared the information about their arrests with government agencies that employed them. So an arrest, even on a minor charge, was not simply an arrest but also, effectively, a job termination. That started to change when some of the men began to fight back in court.

At that time, the Civil Service law provided that employees could be fired for "immoral conduct" that rendered them "unsuitable for government employment." In 1969, the U.S. Court of Appeals in D.C. ruled in Norton v. Macy, 417 F.2d 1161, that it was unconstitutional for the government to fire someone for "immoral conduct" unless "a specific connection," or nexus, could be shown between the conduct at issue and the employee's ability to do his job. This decision triggered a series of official responses: a Civil Service bulletin (1973), then a formal regulation (1975), and finally a statutory change (1978).  All of these provided protection for conduct that did not affect the workplace, a framing that grew out of the arrest cases.

Soon, issues arose that did not involve specific sexual conduct, but related to homosexuality more generally. By the 1970's, some brave folks were starting to come out on the job. In the final months of the Carter administration in 1980, OPM issued a memorandum stating that employees were protected against adverse actions based upon "non-job-related conduct, such as ... sexual orientation." The Reagan and Bush I administrations neither revoked nor reaffirmed the 1980 memorandum.  In 1994, the Clinton OPM Director explicitly reaffirmed it.  Then in 1998, President Clinton upped the protection to the maximum level short of a statute by adding sexual orientation to the Executive Order that specifies the protected characteristics for federal workers.

Paragragh 3 of the Obama memorandum authorizing OPM to provide guidance to agencies based on the "factors not related to job performance" standard (which OPM was fully empowered to do without this memorandum, btw) builds on this history. What will it do? I think we can expect the new OPM guidance to state that, without a demonstration of a nexus between gender identity and ability to perform the job in question, federal agencies are prohibited from discriminating on that basis. This is what is called a "sub-regulatory" rule because, unlike a formal regulation covered by the Administrative Procedures Act, it does not have to go through publication in the Federal Register and consideration of public comments before it is promulgated.  It is simply an internal management policy for federal workplaces.

What is its legal status? Its major power is probably educative and preventive. Also,  because it states the formal policy of the government, it would enormously strengthen any claim of discrimination brought by a transgender person. It is less formal and less binding on future administrations than an Executive Order, although the Carter-era memorandum stayed in place despite Republican presidents. In rough terms, Executive Orders trump memoranda. And as the memorandum itself states in Section 4 (c), it creates no "right or benefit." That includes a right to bring a court action, meaning that it does not by itself create the basis for a lawsuit if an agency violates it. It is certainly a way to keep gender identity issues backburnered and obscure while simultaneously improving the law, just as the earlier Civil Service and OPM documents did for sexual orientation issues.

So, bottom line? As I said in the earlier post, it's not as good as an Executive Order but it's better than nothing. It's certainly good news for Diane Schroer - there's no way that the government will be appealing the ruling for her from a federal district court (577 F.Supp.2d 293) last year. Best case scenario is that it will serve the same function as an executive order in the upcoming debates over ENDA, by which I mean that ENDA proponents can argue that the federal government has taken the lead and bound itself to a policy of non-discrimination based on gender identity, so it is not unreasonable (or at least not hypocritical) to require private sector employers to be bound by that same policy. With luck, the forthcoming "guidance" will sway enough members of Congress to allow ENDA to go through intact, which apparently now is far from certain.

The federal employee benefits memo as anti-climax

The President's Memorandum for the Heads of Executive Departments and Agencies is out. Criticizing it is, to be honest, too easy - like shooting fish in a barrel. It is so obviously a thrown-together document - it basically directs the agencies to identify benefits that can be extended to domestic partners without congressional action. The only Cabinet-level department already to have taken any initiative whatever appears to be the State Department, which announced its reforms several weeks ago.

In his remarks, the President also restated his support for legislation granting benefits to partners of federal employees that cannot be achieved administratively, and for repeal of DoMA.

A few observations on the hype and the real possibilities:

* Although the President claimed in his oral remarks (see below) that it is the product of a "long and thorough review," the memorandum itself reads much more like a directive to senior management to assess what can be done quickly. It really is the kind of memorandum that should go out in the first weeks of an administration, and easily could have, if anyone had been on top of these issues during the transition. This same memorandum could have been drafted in December and issued by the end of January. And if it had been, the lgbt community would have been thrilled.

It's clear from the specific examples that the White House identified in supporting materials that the administration has done some research, although at least one benefit they claim credit for is old news. But the absence of specifics from the memorandum itself strongly suggests that this project was interrupted to create an event before all the work was done. OPM is directed to effectuate the new benefits it has identified, but all the other departments (except for State) seem to be getting the message to start looking now.

The main problem, of course, is that there are statutes that curb who is eligible for certain benefits. A federal statute explicitly limits enrollment for health insurance and pension benefits to an employee and members of his/her family, 5 USC 8905(a); and another section defines "member of family" to include only a spouse and unmarried dependant children under 22, 5 USC 8901(5). The first of those provisions eliminates the option of creating a new category for domestic partners (which DoMA would not prohibit). And when you combine the latter provision with DoMA' s limitation on "spouse" to different-sex marriages, there's not much space for action.  

* There is also a section of the memorandum that directs OPM to issue guidance within 90 days to insure "compliance with and implementation of" a longstanding federal law that prohibits discrimination against federal employees based on factors "not related to job performance." Who knows where this will lead, but it seems to invite OPM to "guide" federal agencies not to discriminate based on gender identity.

This section of the federal civil service law is the backdoor path used by lgbt advocates in the 1970s, who obtained a "clarification" from the Civil Service Commission that this general standard - not related to job performance - covered discrimination based on sexual orientation.  In the 1990s, President Clinton brought the rule out of the closet by explicitly adding sexual orientation to the Executive Order prohibiting discrimination against federal employees based on race, sex and religion. Adding gender identity to that Executive Order is what President Obama should have done tonight. So maybe this step will get gender identity to where sexual orientation was 30 years ago. Which is to say, it's better than nothing.

* Lastly, I couldn't help but note the stark contrast between the language of the memorandum and that of the non-binding comments of the President when he signed it. (Full text of his remarks is after the jump.) The operative document, to be published in the Federal Register, frames the problem as the federal government's inability to match private sector employee benefits. Its introduction concludes: "Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and brightest employees." How inspiring.

The President's remarks, by contrast, open with a reference to the "the long overdue progress in our nation's pursuit of equality," and he isn't talking about equality with the private sector. No, it's about people being "denied basic rights [because] the people that they love are of the same sex." That's nice.  Too bad more of that kind of equality didn't make it into the only document that matters.

OPM Director John Berry and OPM General Counsel Elaine Kaplan are good people. I wish them the best of luck in moving forward. Reforming the nation's largest employer is incredibly important. And it won't be easy.

Hey buddy, where's the Executive Order?

President Obama has officially declared June to be LGBT Pride Month.  Whoopee. The White House has been promising lgbt advocates for months that an exciting package of new policies would be announced in June.  There's certainly nothing remarkable about the proclamation. So whatever is coming, this isn't it.

Moreover, the proclamation contains a false claim: that Obama is the first President to appoint an openly gay person to a Senate confirmable position in the first 100 days.  President Clinton nominated Roberta Achtenberg to an assistant secretary position in HUD within the first 100 days in 1993. Clinton also issued pride month declarations during his last two years in office.

This is about as exciting as the Obama statement gets:

During LGBT Pride Month, I call upon the LGBT community, the Congress, and the American people to work together to promote equal rights for all, regardless of sexual orientation or gender identity.

At least he included gender identity.  Meanwhile, he could issue an Executive Order banning discrimination against federal employees on the basis of gender identity. That would be exciting. 

I know you're busy running General Motors, Mr. President, but we're still waiting.

Trans activists, psychiatrists debate "gender identity disorder" for DSM-V

From Salon:

The LGBT community has had a long, often painful relationship with the psychological profession. Until 1974, when the American Psychiatric Association (APA) voted to remove the diagnosis from the second edition of its "Diagnostic and Statistical Manual of Mental Disorders" (DSM), the organization maintained that homosexuality was a mental illness. The change came slowly, after years of protest and debate.

At this year's APA meeting, in San Francisco, it is transgender activists who are demanding that the organization depathologize their identity. Their anger centers around the controversial diagnosis of "Gender Identity Disorder," which Psychology Today defines as "strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex. People with GID desire to live as members of the opposite sex and often dress and use mannerisms associated with the other gender."

On Monday night, protesters gathered outside the APA meeting at a "Reform GID Now!" demonstration. As the association's membership works to revise the DSM for a fifth edition, activists want the APA to select a more representative working group on gender identity. Many in the transgender community are upset that Kenneth Zucker, psychologist-in-chief at Toronto's Center for Addiction and Mental Health, has been chosen to lead the DSM-V Task Force on Sexual and Gender Identity Disorders. Zucker, according to the Psychiatric Times,

has been on the record as saying that parents and clinicians should work to socialize very young children who behave in ways discordant with their physical gender so that they come to identify with it -- but that teens who have not done so should be helped to adjust to their discordant gender identity.

Activists also want the APA to release a statement affirming

that diagnosing normal variants of human gender identity and expression as psychiatric disorders encourages an adversarial relationship between psychiatry and sex and gender minorities. We also urge the APA to state that these diagnoses are misused by some people outside of psychiatry who wish to deny civil rights to trans and gender-variant people.

Of course, not all APA members agree with Zucker, and the transgender community has found a number of advocates among the psychologists convening in San Francisco. Kelley Winters, Ph.D. and founder of GID Reform Advocates, spoke at the conference, making the case to her colleagues that "in the absence of dysphoria, gender identity and expression that vary from assigned birth sex are not, in themselves, grounds for diagnosing a mental disorder."  The precedent for this criterion is clear: Since the publication of the DSM-IV, in 1994, the APA has largely sought to avoid pathologizing symptoms unless they cause "clinically significant distress or impairment in social, occupational, or other important areas of functioning."

Dr. Diane Ehrensaft of the Wright Institute echoed the activists' accusations. "The mental health profession has been consistently doing harm to children who are not 'gender normal,' and they need to retrain," she said in an interview with Psychiatric Times. And Edgardo Menvielle, M.D., M.S.H.S., recently completed a comparative study of Zucker's program and his own. The results showed that children in Menvielle's program, which provides peer support for gender variant youth, exhibited "less pathological tendencies" than those in Zucker's.

Although it's still unclear what effect the protests will have on the DSM-V, Ehrensaft is optimistic. "We got homosexuality out of the DSM because of protests at the APA," she told Psychiatric Times. "Now it’s time to do the same with GID." She also noted that a movement within the association is moving toward a "more balanced" Task Force. With psychologists and activists working together to reform the APA's position on gender identity, it may be only a matter of time before we stop labeling perfectly sane transpeople mentally ill. Imagine that!

The new and important Equality Bill in the UK

The Labour Government has introduced an Equality Bill in the House of Commons that contains an extensive set of new provisions to clarify and expand the anti-discrimination mandate in the UK. (There is also a useful summary explaining the impact of the legislation.) Its proponents expect the bill to clear the House of Commons this summer and reach the House of Lords later this year. They predict that the bill will receive Royal Assent in spring 2010 and take effect that fall.

The single law is intended to replace nine major pieces of legislation, roughly 100 rules and regulations, and more than 2500 pages of guidance. Because of differences with the U.S. legal system, it is difficult to compare the two from a civil rights perspective, although in general one can say that the British system relies more on producing affirmative steps by government and employers, and less on the remedial, private enforcement realm of litigation under Title VII and similar measures.

Compromises have already been made in the bill.  When Jane Harman, the government's equalities minister and the moving force behind the bill, announced a draft version last summer, her cabinet colleagues forced the deletion of the provision that most rankled big business. It would have required employers to make public reports on their efforts toward closing the gender gap in pay and providing more opportunities to racial and ethnic minorities. As introduced, the bill places that obligation only on public sector employers.

In addition, the bill would strengthen employment tribunals by permitting the award of damages if the employee has left the company (apparently no allowed now); limit government contracts to businesses that meet anti-discrimination goals; impose new duties of equal provision of government services, including "positive actions" for the benefit of disadvantaged groups; and provide that political parties can continue to use women-only short-list rules for candidate selection and to allocate slots for members of ethnic minorities until 2030. The summary includes a number of concrete examples for each proposal.  

For lgbt people, according to the summary:

• The Equality Duty on public bodies means that, for example, a residential care home would have to consider the needs of same-sex couples. Or, if a local authority notices that there are no support groups for people undergoing gender reassignment in their area, its response could be to fund a charity to help reach out to the transsexual community. Or, a school district may have to explicitly address anti-gay bullying in its discipline policies.
• The legislation will widen the definition of ‘gender reassignment’ to make it clear that a person does not have to be under medical supervision to be protected from discrimination and protect people who face discrimination because of their association with transsexual people, for example, as their partner.

Apart from the differences in particulars, the big message here is that the UK is moving to a coherent, omnibus approach to the problems caused by all kinds of discrimination, including those based on economic class, in every realm of social life. I wonder if the US will ever get there.

 

$491,190 plus one Executive Order

No - that's not the current value of General Motors - things haven't gotten that bad for them yet.

$491,190 is the amount in back pay and damages that federal District Court Judge James Robinson ordered the Library of Congress to pay Diane Schroer for rescinding a job offer to her when officials learned that she would start work as Diane, after having successfully interviewed as David.

The case - Schroer v. Billington, 577 F.Supp.2d 293 - generated a pathbreaking ruling that discrimination based on gender identity was discrimination based on gender, and thus violated Title VII. (More details and link to decision here)

Hopefully, the Obama administration will announce that it is not appealing the decision and pay the damages (plus, I hope, appropriately large attorneys fees to the ACLU LGBT Rights Project for doing a brilliant job of litigating the case).

More important, it is time for the President to issue an executive order banning discrimination based on gender identity for all federal employees. The White House has been quietly promising to take this step. The Schroer case provides the perfect opportunity.  Just do it.

Obama may sign Executive Order banning gender identity discrimination against federal employees

The rumor that's circulating among lgbt advocates has hit the web, although so obliquely that it hasn't gotten much attention. If it comes to pass, it will be a game changer: President Obama will sign an executive order adding a prohibition of discrimination based on gender identity to the existing order that covers sexual orientation.

According to Marc Ambinder, the order has been on hold until after John Berry's nomination as head of OPM is confirmed:

As soon as the Senate confirms John Berry to head the Office of Personnel Management, Obama intends to sign an executive order strengthening workplace protections for the LGBT community. Having Berry by his side is important -- Berry'd be the highest-ranking openly gay administration official -- and, of course, as the OPM chief, he's the chief human resource officer for government employees. This executive order may -- or may not -- be accompanied by other instructions that would have the effect of expanding gay rights. 

John has now been confirmed (by a unanimous Senate vote) and will start work on Monday the 13th.

An executive order protecting transgender federal employees would provide an enormous boost - not to mention considerable political cover - for advocates who will be seeking a trans-inclusive ENDA in Congress this year. Unlike an executive order, ENDA would cover all workers in the U.S., except for those in very small companies. (It has the same scope of coverage as Title VII.)

An executive order for federal employees would also be the appropriate response to the Schroer case, in which a federal district court ruled last summer that the Library of Congress violated Title VII by withdrawing a job offer to Diane Schroer, after having sought to hire her when she was David. Various matters have delayed the moment when the Justice Department has to decide whether to appeal. The firing was just as irrational and unfair as it sounds, and if they do appeal, they truly should be ashamed of themselves.

Do we finally have an administration that's willing to do the right thing?

Keep your fingers crossed.

The most amazing TV ad you've seen in a long time

The following ad from Argentina speaks even more volumes about the extraordinary cultural changes afoot in Latin America. (HT Karla Dobinski) The translation is below.

"Hello, Mr. Louis."
"Hi...I have a question. When you applied to get the loan to open this beauty salon, did you have to show an ID?"
"...yeah.... "
"and on your ID, it says that you're really a male, doesn't it?"
"..yes."
"and they still gave you the loan?"
"yes."
"well...they are the same bank that just gave me a loan to buy my new car. and...it just made me think, you know? and i came here...to apologize for treating you poorly all these years. for not knowing how to treat you. I want you to have this."