Saturday, December 27, 2008

Hermaphroditic dogs?

Today, “Fresh Air” re-broadcast Terry Gross’s March 20th interview with veterinarian Nick Trout. Here’s an excerpt:

TG: This is Fresh Air. I’m Terry Gross.

Animal surgeon Nick Trout has noticed that many pet owners feel more like pet parents. The people that bring their animals to him want him to know how much they love their pets. He loves animals although the cats and dogs he treats might not return the sentiment during his examinations.

We’re going to talk about some of his more unusual cases and how the whole field of veterinary medicine has changed in the past few decades.

* * *

TG I want you to tell us of one of your more challenging cases. And this is a case, I would describe this dog as, um, almost a hermaphrodite?

NT Yeah, yeah…

TG It had, it’s a male dog that had become feminized? It it had, uh, you, why don’t you describe what it had.

NT (Sorry) This wa, this wasn’t an easy story to uh convey and get across uh but uh I try my best to basically describe a, a boxer dog who on the outside appeared to be male. This dog only had one descended testicle. And uh the remaining testicle in the side had succumbed to a tumor, a tumor and was secreting feminine hormones. And those feminine hormones were making this male dog become somewhat female in nature. This dog would stand to be mounted by other dogs, had somewhat pendulous breasts and uh and had this real sort of hormonal turmoil going on inside of him. The other problem was, unbeknownst to both me and the owner, that he had a remnant of an embryonic uterus that should have disappeared during his development as a puppy and yet had persisted and so this, this uh increase in female hormones had sort of ‘turned on’ a female reproductive organ within his body and as a result he had developed what is called a pyametrum which is not an uncommon infection of this male dog’s uterus. And so this gave me this very unique once-in-a-lifetime opportunity to end-up actually neutering and spaying one and the same dog.

“That’s just, that’s just really bizarre.”

NT It, it was quite bizarre and you know occasionally these cases do get reported in the veterinary literature. What is more entertaining is how you explain this to a somewhat chauvinistic owner.

TG And how’d it do?

NT Well uh, I um, I like to think that the uh, the feminine side of his male dog brought out the feminine side in him.

TG < laugh> How so?

NT Well because, you know he, um, he did find it difficult. He was um just insistent that this was a male dog and that this couldn’t be happening. This, this hormonally-induced ability to be attracted to the other male dog in the dog park. And so what I ensured the end of the day was that uh he should understand that the man the male side of this dog actually shines through, was the dominant um party, and he seemed to be comfortable with that.

TG You know, one of the supermarkets tabloid seems to specialize in bizarre animal stories. It I wouldn’t be surprised if they picked-up on this one. But they just have a lot of stories about like the biggest cat in the world or half-cat,

NT Right.

TG half-dog .

NT Right.

TG Kind of combine the photos together.

NT Yes.

TG so it’s half-cat, half-dog.

* * *

The point of this piece is to draw show how veterinary medicine is taking on human medical modalities.

This excerpt relates to a dog that had a genetic or perhaps a congenital oddity that Gross identifies with a community of humans that she identifies as “hermaphrodites.”

What do we learn from this?

1. For starters, Gross is misinformed.

The term “hermaphrodite” has long fallen into disuse as objectionable, replaced by the neutral and descriptively correct term “intersexed.” That term has just recently been supplanted (by the medical professionals over the patients’ overwhelming objections) as people with “disorders of sexual development” (DSDs.) But Gross uses the outdated and demeaning term “hermaphrodite.”

2. Gross calls the dog’s condition “bizarre,” and the vet agrees.

But the medical community and society at-large understands that sex and gender variances occur within the human community all the time. Roughly one in 2,000 children are born intersexed.

We’re mammals; so are dogs. If this happens to us with such frequency why should anyone be surprised to see it in a dog? Given the number of canines among us what’s surprising is that the vet has only seen or heard of this one case.

3. Gross is uncomfortable with sex and gender variance.

She punctuates each juncture that she deems sexually amusing, whimsical, titillating or mildly prurient with her signature laugh/guffaw, signaling that it’s a matter we can turn into an off-color joke because it is after all about sex and sex makes us uncomfortable. Why? Fifty-five years into Playboy magazine and we still live in a sexually repressed society?

You’d expect Gross's take from teenagers when they discuss something that makes them nervous – like sex. People do that when they're not fully mature adults.

Maybe Gross just plays it cute for ratings.

4. The vet, who’s a medical professional, doesn’t seem to have a better take on this than does Gross. Toward the end he interjects agreements with her (two rights and a yes) as she trivializes the subject.

5. Gross and the vet’s unease is shared by the men in general if not the public at-large.

The vet relates the dog owner’s discomfort with his hermaphroditic and gender-bending dog. I suspect he sees it as reflecting on him personally. Men who buy fighting animals like pit bulls and tough-looking hyper-masculine dogs like boxers are projecting their animals’ innate aggressiveness. It’s an advertisement – “Don’t mess with me.” It’s the same with their cars – high power and long hood lines to compensate for their likely genital under-endowment. What can be more embarrassing for a macho stud than having a male dog who likes to take it up the ass?

Fathers have the same problem with their less-than-masculine sons.

Too bad Terry Gross missed the larger story. Query whether she could ever have seen it.

Tuesday, December 23, 2008

What did He say?

I can't imagine anyone is surprised that Pope Benedict would attack transsexuals, and how creatively! He speaks so obliquely one could almost confuse him with Alan "what did the Fed chairman say?" Greenspan. Please - someone translate this bit of rhetorical fluff for me:

"The fact that the earth, the cosmos, mirror the creator Spirit, also means that beyond the mathematical order, their rational structures in the experiment become almost palpable, which in itself brings an ethical orientation."

Of course it does.

If we could stick the members of the College of Cardinals in separate rooms and ask them to write out their individual interpretations for us, would anyone be willing to bet that any two of them could come up with the same interpretation?

But isn't it nice to know that the Catholic Church cares. About rain forests. That's why it's leading the charge to save the environment. Or cholera victims in Zimbabwe, a Christian country (except they're black.)

No, it's just anything having to do with sex that disturbs His Holiness' sleep.

And how about this gem:

"Rain forests deserve, yes, our protection but the human being - as a creature which contains a message that is not in contradiction with his freedom but is the condition of his freedom - does not deserve it less."

I always though 'which' is to be preceded by a comma but what do I know?

Does anyone other than the Pontiff really think humanity is threatened by the concept of gender variance? What - people are going to so flock by the droves to change sex/gender (does His Holiness have a clue as to the difference between them?) thus imperiling human reproduction and the continuity of the species? With 6.8 BILLION people on the planet and the Maternal Faithful hard at work popping out more people in ever increasing numbers, is depopulation something we need to worry about?

The rest of us have a lot to worry about - mostly religious fanatics like you-know-who.

Tuesday, November 25, 2008

Where to from here?

I’m angry. I suspect I’m not alone in this.

A Florida Circuit Court judge (read: trial court judge) has just ruled that the Florida law barring gay couples from adopting is unconstitutional.

I’m not angry about that. That I’m glad about.

No, I’m angry that a lawyer in Orlando who’s allied with the losing side called the judge an “activist judge.”

Let me translate: “activist judge” means “sour grapes.”

Now I’m a lawyer and I don’t like it when a judge rules against me, but it happens. It’s happened to me a lot, especially in my own family law case where three separate judges and a lawyer-arbitrator have each ruled against me. I believe the evidence would prove to any impartial observer that these rulings reflect a shocking degree of gender-based bias but at least the severity of the rulings have been decreasing.

The Religious Right though is something else.

You would think that these people are somewhat chastened by the repudiation they suffered at the polls this past Election Day, but no. They still think they have a god-given right to inject their religious into the civil sphere and subject the rest of us to their theocratic lunacies.

These people are dinosaurs. Perhaps they haven’t heard about the meteor that just hit them. It’s called Barack Obama.

But Obama is just an agent of a larger phenomenon. It’s called The Youth. They are not a monolith but in general as a group they are not buying into their parents’ tired old prejudices.

I wrote about this in a prior blog but in this week’s New Yorker Hendrik Hertzberg encapsulated it very nicely in a piece entitled Eight is Enough. He writes:

“California’s gay activists and their straight allies, judging from their online postmortems, have begun to direct more criticism at themselves than at their opponents. They were complacent: early polls had shown Prop. 8 losing by double digits. Their television ads were timid and ineffective, focussing on worthy abstractions like equality and fairness, while the other side’s were powerfully emotional. (Also dishonest—they implied that gay marriage would threaten churches’ tax exemptions, force church-affiliated adoption agencies to place children with gay couples, and oblige children to attend gay weddings—but that sort of thing was to be expected.)”

I realized the gay leadership was incompetent when I was working with the “No on Prop 8” campaign last spring, going out to shopping centers to sign-up people to pledge not to sign the Prop 8 petition.

I asked for a copy of the Prop 8 Petition I was supposed to ask people not to support. Can you believe the anti-Prop 8 campaign didn’t have one to show me?

And they didn’t want to debate people who said they would support Prop 8.

So I ignored them and I got some of the people who said they would support Prop 8 to change their minds. One was a Jewish poli-sci professor and another was a young black man who had bought into all the biblical nonsense. I let him have it. Of all the people who should have supported gay rights, blacks as a group voted most strongly to further oppress another oppressed minority. Shame on them.

The anti-Prop 8 leadership had to know the Prop 8 proponents were going to pull out all the stops in a last-minute media lying blitz but they did nothing to stop it. Rather than wage an aggressive pre-emptive campaign to confront the Religious Right and nip their lie campaign in the bud before they could gain any traction, the gay leadership pussyfooted around, waging a let’s-be-nice campaign that was a sure loser. It wasn’t until the day after the election they started doing what they should have been doing a month before the election but by then they were literally a day late and tens of millions of wasted dollars short.

As Hertzberg points out, gay (and I feel safe including all LGBT) rights will prevail but I’m angry the loss on Prop 8 will remain a blot, not just on the Religious Right but on the LGBT leadership that failed its constituents.

Tuesday, November 11, 2008

What will we ever do about religion?

It’s becoming increasingly clear that religion is the Great Divide, the issue that will make or break us as a species.

Election Night saw Progressives rejoicing across-the-board -- except on the issue of same-sex marriage. Voters in California, Arizona and Florida, who had otherwise voted relatively progressively, skewed to the Right over this sex-driven issue.

Why? Religion. They blindly followed what their church leaders told them – that the Bible (Christian or Jewish – take your pick) commands us to adhere to a strict gender binary – male or female, with no room for anything in-between.

Frankly, I can’t imagine anything more useless than studying theology, not even a business school education (which can be summed up, “buy low, sell high”.) I’m from the Richard Dawkins/George Carlin school on this. Religion is a quaint idea and while I respect anyone’s right to believe in something I personally regard as nonsense, what-the-fuck do I really know about the existence of a deity? I’m just a human, an insignificant mortal to whom no deity has deigned to reveal him/her/itself (I’m covering all the bases – don’t want to piss him/her/it off, just in case he/she/it really does exist) so I’ll suspend judgment on the existence of a deity and just get on with my life, unencumbered by time-wasting theological debates.

But religion is humanity’s answer to a really thorny problem. We’ve fought uncounted battles and slaughtered each other in appalling numbers over whose invisible man-in-the-sky is the real deity, when the answer is “none of the above.” Amazing.

In our society, believers have grown emboldened to believe the rules by which we play as a nation (our federal and state constitutions) allow us to inject personal religious beliefs into the civic discussion. What about the Establishment Clause to the First Amendment? -- “Never heard of it!”

I have to believe the California Supreme Court will rule that the various challenges to the Prop 8 vote are meritorious and it will strike the Prop 8 result. I don’t believe two-thirds of the California Assembly or the State Senate would let Prop 8 be submitted either to the voters or to their representatives in a constitutional convention. With the passage of time, as younger people join the roll of voters, a new LGBT-friendly majority will increasingly define the electorate, especially once the people learn about the full extent of the Prop 8 campaign of lies.

But in the meantime, what do we do about religion?

As it stands, the First Amendment to the U.S. Constitution says that the state shall not establish any religion (the Establishment Clause) and everyone is free to practice his or her own religion (the Free Exercise clause.)

The latter has spawned a curious corollary – the tax deduction for religion. It’s enshrined in Sections 170(a)(1) and 501(c)(3) of the Internal Revenue Code (IRC, or “the Code”.)

Section 170 reads as follows (in pertinent part):

Sec. 170. Charitable, etc., contributions and gifts
(a) Allowance of deduction.
(1) General rule. There shall be allowed as a deduction any charitable contribution
(as defined in subsection (c)) payment of which is made within the taxable year.

Section 501(c)(3) lets a charity avoid paying tax on the income it receives. Religious organizations (like churches) qualify for 501(c)(3) treatment so long as they stick to religion and stay out of things in the civil sphere, like politics.

The question now being hotly debated (and the subject of the many post-election street protests) is whether churches that advocated for Prop 8 overstepped that line.

I think the answer is a no-brainer: Of course they did.

Here’s how the deal works:

My neighbor pays tax on his income. But he doesn’t pay tax on money he gives to his religious organization of choice (his church.) And unlike just about any other recipient of money, the church doesn’t pay tax on its receipt of that money nor does the donor pay a gift tax on the transfer. The result is a tax-exempt flow of cash to the church.

The church doesn’t pay any other taxes either. If it burns the fire department will come out to quell the fire and if there’s a disturbance the police will respond. But the church is exempt from local taxes that would pay for these kinds of things. There’s more but you get the idea.

So who picks up the tab for this subsidy? You guessed it – the rest of us – you and me, whether we believe in their religion or not. Why?

The religious folks have come to believe that this tax subsidy is their right under the Free Exercise clause, that if they’re taxed like the rest of us it’s somehow an unconstitutional imposition or restriction of their right to practice their religion.

Of course it’s not. We’re just asking them to pay their own way without asking us, those who don’t share their religious beliefs, to pick up their tab. They’re still free to indulge their irrational religious beliefs to their hearts’ content. They just have to obey one little law, a quid-pro-quo for this privilege of being tax-exempt – stick to religion and stay out of the public sphere.

But that’s a problem for them. Their religion seems to tell them they have to go out and make their business everyone else’s business. Their god tells them so.

So if their god tells them to discriminate against gay people they feel the entire society in which they live must also obey their religion’s commandment. They believe their religion has got to be everywhere – not just in their churches but in all the businesses their churches might engage in, like hospitals. And not just in their private religious schools but in the public schools that are supported by taxpayer dollars, money collected from people like me who don’t believe in their religion or its curious ideas. They believe it’s their right to inject their religion into areas where the law has been clear – “This is a religion free zone.”

They want to be free to discriminate against people who don’t share their religious beliefs. They don’t want to have to hire them – not just in their churches but everywhere else, even though our laws are increasingly telling them they can’t do that, not in non-religious enterprises.

They’ve convinced themselves (by listening to their clergy, whose ignorance on this is truly appalling) that this country is a Christian country, that the Founding Fathers said so. They ignore and refuse to acknowledge any documentary evidence, proof really, that the Founding Fathers said no such thing, that in fact they said just the opposite. It’s maddening, infuriating.

What’s the solution?

I don’t believe it will ever be possible to disabuse these people, or all of them anyway, of their belief in the Invisible-Man-in-the-Sky. Not gonna happen. Irrational belief in stuff like this may be programmed into our genes, that maybe the ability to believe in a deity conferred a survival advantage on early humans.

Think about it. Early hominids emerging into consciousness were defined in part by their ability to think not just in the present or even the past but into the future, and when they did one of the very first things they realized was that each and every one of them was going to die. They saw it all around them. Animals do too but animals don’t make the logical step into realizing maybe they are next. Humans did, and it probably came as a big shock.

I remember when my daughter came to this realization. She was ten, and she was greatly disturbed.

I had to laugh – not at her but with her because I was her age when I had the very same epiphany. I told her as gently as I could it was ok, that it happens to everyone but that what’s important is to live the life you have as fully and as meaningfully as you can.

One thing I didn’t tell her was that death is part of God’s plan or that any deity had anything to do with it.

But not everyone can deal with this very disturbing fact with such objectivity. The idea that we can’t know what happens after we die, that maybe the lights just go out, that this is it, it’s over and there is no tomorrow – that’s too much for most people. They have to believe that they continue, somehow, somewhere. And they have to believe they’re not alone, that there is a god who loves them and won’t let the terrible things they see and hear of happening in the news each and every day happen to them.

People who don’t believe in a hereafter suffer a multitude of ills. We all know we’re going to die but it’s an easier pill if we know it isn’t The End. I often find myself tempted. I too want to believe but my intellect holds me back. I know I’d probably be happier if I could believe. I’ve tried, really I have, but belief just never happened. The best I can do is admit I’m too insignificant to know. I don’t know why but the deity has just never deigned to speak to me and sorry but I just can’t take anyone else’s word for it, especially if that person or those persons are long, long dead. I adopt their virtue of humility and avow that I’m just too insignificant to know. That’s the message of Job. But still I pledge to “do the right thing” even if I now there is no deity who will judge me when I die and I won’t fear eternal damnation because I don’t believe in him/her/it. I will try to die content knowing that on balance I lived a good life simply because something inside me unrelated to a belief in a deity tells me it’s the right thing to do, that I simply feel good doing the right thing, period.

If I do hope for the existence of a deity it will be so that I may meet that entity and it will then disclose to me the secrets of creation, including quantum mechanics and maybe integral calculus. If there is no deity and the lights really just do go out, that’s ok too. I will be swallowed-up by the Cosmos, whatever that is. There may not be a deity but there is an order to the Universe. Einstein told us so. That’s enough for me.

But I digress.

The flood of Christian (including out-of-state Mormon) money that defeated Prop 8 was subsidized by the rest of us. The dollars themselves were not tax exempt but they were propelled by the voices of their clergy whose livelihoods and employment are tax-exempt, so IRC sections 170(a)(1) and 501(c)(3) were instrumental in defeating Prop 8.

The answer is to get rid of the tax deduction for religion – all of it. Level the playing field. People would still be free to practice their religion. They just would not get a free ride out of my pocketbook to pay for it.

At the same time we should get rid of all the other deductions, like mortgage interest. Get government out of the business of making value judgments about which activity is right and which is wrong. No more incentives, at least not tax-fueled. As the Right would say, let the market decide. That will take care of 90+ percent of all the tax complexities. Keep a graduated tax structure so that the poor are not taxed on money they need just to survive and those who have the most pay the most. That’s not socialism -- it’s how it was in 1913 when Congress enacted the income tax and it persisted until World War II.

But that’s another essay for another day.

Thursday, November 6, 2008

Prop 8 -- the day after

On November 4th Proposition 8 won and for the time being same-sex marriage is no longer an option in California. Voters in Florida and Arizona passed similar state constitutional anti-gay marriage bans, signaling that sex and gender-based discrimination remains the major national culture war hot-button issue.

Another California ballot initiative, Proposition 2, was for the humane treatment of farm animals. It won with 63.3% of the vote – nearly two full points more than Obama’s margin of victory in the California popular vote. By contrast, only 52.2% California voters voted against same-sex marriage. It was a closest margin of any of the twelve California ballot initiatives. Sadly, more people seem inclined to accord rights to animals than to fellow human beings.

Timing is everything.

312 years after the end of the Thirty Years’ War, a Catholic was elected president in Protestant America. Forty-eight years later, we look back on that election and wonder what the big deal. But John Kennedy’s religion was a major issue in the 1960 election. I remember. I was eleven years old and I canvassed my neighborhood for Kennedy.

Try to imagine any attempt ten years ago to limit factory farms and afford some measure of protection against cruelty to animals we eat – it wasn’t gonna happen.

Somehow, sex-based prejudice is harder to end. Why? Probably because of religion. Christian, Jewish and Muslim religious leaders perceived same-sex marriage as an existential threat and banded together to kill it.

The Religious Right got away with lying to Californians (and Arizonans and Floridians) about same-sex marriage. I’ve heard telling that Prop 8 proponents were calling and telling same-sex marriage supporters that a vote for Prop 8 was a vote for same-sex marriage – just the opposite of the initiative’s clear language. At the same time, California voters rejected the McCain/Palin campaign’s massive lies about Obama and the agribusiness lies.

Once upon a time it seems government limited the role of religion in the public sphere. That seems to be over. At least one U.S. Supreme Court justice has declared America to be a Christian nation. Tax-exempt money from religious groups, notably the Knights of Columbus and the Mormon Church, flooded California airwaves with the most outrageous lies to fuel anti-gay hatred to ban civil sector marriages they oppose on religious grounds -- a clear violation of the separation of church and state.

But the same-sex marriage issue isn’t over in California.

How many kids think “democracy” means that a bare majority has the right to dictate to the 49% minority? How many adults? George W. Bush and Dick Cheney do. Barack Obama says he does not.

One of the purposes of any constitution in a democracy is to protect the rights of minorities from the tyranny of the majority. Yet Prop 8 would change the California constitution to allow a bare 50+ percent of the vote to deprive gays and lesbians their right to marry whomever they choose.

The California Supreme Court and the U.S. Supreme Court both recognize marriage to be a fundamental right. Therefore, any attempt to deprive anyone of the right to marry anyone of their choosing is a major big deal. It’s not the kind of thing any society would allow a bare 50+ percentage of voters to do to the other 49%. Therefore, in just about every state and the Federal constitution, it usually takes more than a bare majority, usually a 2/3 vote somewhere along the line, usually in the legislature or a constitutional convention.

The California constitution speaks to two manners of constitutional changes – amendments and revisions. Amendments are for minor matters while revisions are for major changes. Taking away someone’s right to marry someone of their choosing is a major change to basic rights and therefore would not be properly by amendment but rather a revision. The procedure is set out in California Constitution  Article 18. The language is anything but straightforward but cases interpret it to require a 2/3 legislative vote to get a measure before the voters who can then pass it by a simple majority vote. Submitting a major change proposal to the voters without a prior ok from both legislative houses is not allowed but that’s what happened.

Prop 8 was put to the voters as an amendment in a simple majority vote without legislative review and 2/3 approval. The day after the election several groups and cities filed for California Supreme Court review to void the result.

Beyond that, the evidence is mounting that Prop 8 proponents relied principally on fraud to make their case. They alleged that same-sex marriage would impinge on religious freedoms, forcing children to learn about homosexuality and accept a homosexual lifestyle.

Lying didn’t work last night for McCain/Palin or for the big agribusiness conglomerates but it did for the Religious Right. And they succeeded in injecting religious considerations into the public sphere. Thus, they were able to bypass the California Supreme Court’s May 2008 ruling that overturned the 2000 California Prop 22 initiative that enacted a law banning same-sex marriage, in part on separation of church and state grounds.

I suppose if I were the Religious Right I would have done the same. Time was not on their side.

Prop 22 was supported by 61% of Californians. Eight years later and that number dropped to 52% and polls were telling the Religious Right that the trend was toward outright majority acceptance of same-sex marriage in coming years as the electorate skewed younger, so 2008 was their decision time. The prospect of an Obama presidential bully pulpit probably fueled their decision as well.

Hopefully, a court challenge will reverse last night’s Prop 8 win and the next anti-gay measure to curtail same-sex marriage will lose decisively, no matter what the deciding forum may be.

Beyond that, one hopes the Obama era will hasten a shift in attitudes about sex-based discrimination, and not just among the young. The first battleground issue may be a fully gender-inclusive ENDA in the next Congressional session.

In September 2007 Barney Frank and Nancy Pelosi threw us under the bus. Their given reason was the lack of votes among Democrats, especially the newly-elected “blue dog” (read: conservative) House members.

A lot has happened in the year since then.

Rahm Emanuel masterminded the 2006 Democratic takeover of the House of Representatives by engineering those thirty “blue dog” Democrats' elections in nominally Republican districts. Pelosi/Frank’s excuse was that these people were not transgender friendly. I never saw any report that anyone ever lobbied these people no one has ever explained what if anything our leadership did to educate them. Instead, we’ve been asked to accept on faith that they did.

I’m from Missouri.

In the year since the ENDA debacle a new scientific study from Australia reports persuasive evidence of a genetic basis for transsexuality. Another issued from UCLA, where Prof. Eric Vilain has been reporting this for years. The press increasingly reports positively on transgender issues, particularly regarding tg-identified children, while our enemies are losing traction as they hew to the same tired old arguments based on slanted psychology and religious prejudice. We won a major battle in Montgomery County, Maryland for a trans-inclusive ordinance and fended-off a similar challenge in Gainesville, Florida.

Emanuel has just accepted the post of Obama’s chief-of-staff. He now has seventeen additional Democrats on top of the majority we got in 2006 and at least fifty-six Democratic senators.

Timing is still everything, and now is our time.

Sunday, October 26, 2008

Prop 8, cont.

In June 2003 the U.S. Supreme Court decided Lawrence v. Texas, reversing itself in a 6-3 vote and overturning the Texas statute that criminalized consensual homosexual sodomy.

The gay community had won a major victory. They had tasted a very sweet victory. The media was awash with stories and pictures of gay couples, male and female, embracing, kissing, and generally rejoicing. The gay community was on a roll.

Gay people tend toward exuberance. In this case, it wasn’t irrational. The City of San Francisco started issuing marriage licenses to gay couples.

My own initial reaction was that gay marriage was problematic. Maybe the straights who tied marriage to children had a point, maybe not, but could they be dismissed so easily? I wasn’t sure. Many jurisdictions had enacted civil union laws that addressed the black letter legal discrimination issues gay couples faced. Wasn’t that sufficient?

Didn’t gays understand the political climate in which they lived? As a transgendered woman, I sure did. Couldn’t they see the reaction they would engender among the legions of politically conservative, sexually repressed red-staters? Was that something they could blithely ignore, or did they? Were they just taking a firm, militant stand and declaring that their right to marry was simply non-negotiable?

I thought about this last September when the Democratic House leadership decided that they couldn’t get enough votes to pass a transgender-inclusive ENDA. The gay and lesbian community was split. A lot of them didn’t want to wait for “theirs” while we fought for “ours.” But many others understood that gender expression was their issue too and that without a gender identity inclusive ENDA a sexual-orientation inclusive ENDA victory was hollow and insubstantial.

Eleven months after Lawrence, the Supreme Judicial Court for the Commonwealth of Massachusetts issued yet another landmark decision in Goodridge v. Dept. of Public Health. This one legalized same-sex marriage.

I wasn’t really surprised. Massachusetts is often ahead of the rest of the country, although not necessarily by much. Goodridge was decided 4-3. My own law school criminal law professor had been appointed chief justice by then-governor Mike Dukakis (they’re both Greek-Americans) and I recalled his witty classroom irreverencies. I noticed too the name of the lawyer for the Commonwealth. She had sat three rows behind me in my first-year section. She made law review and was nobody’s fool. But she was no doubt also a good soldier but I wondered how vigorous she’d argued the Commonwealth’s position.

On legal matters I tell people, “When in doubt, read the opinion.” It sounded like good advice here so I read some of the briefs and I read the decision. Legal texts aren’t exactly light reading but sometimes they’re worth the effort. This one was.

The Court analyzed thoroughly every argument, pro and con, ultimately buying into all the arguments made by the proponents of same-sex marriage. They made sense. The other side did not. It was that simple. Basically, denial of same-sex marriage violated every concept of due process and equal protection. The anti-same-sex arguments all boiled down to one thing: religion. That we’d always done it this way. That this is how society’s been for thousands of years. It’s in the Bible.

Fortunately, the Court was firm: Under the Massachusetts constitution and the Establishment Clause of the First Amendment to the U.S. Constitution, religion may not be determine civil policy. Someone please tell that to Tony Scalia.

I felt a little sheepish for having equivocated but it was a valuable lesson. If I could be swayed by prejudice, and I’m a post-op transsexual, what about the Great Unwashed? How could they ever be expected to get it?

And get it they don’t.

One of the untoward but predictable consequences was the media orgy of pictures showing over-the-top gay marriage partners totally out-of-control kissing(!!) on San Francisco City Hall steps followed by the wave of vehement anti-gay backlash expressed in a 2006 raft of anti-same-sex statutes and ballot referenda that enshrined prohibitions against gay marriage in no less than twenty-seven state constitutions. It’s the nuclear option – a prohibition untouchable by state lawmakers, governors and judges.

On the other hand, this year the California and Connecticut state supreme courts followed the Massachusetts lead in decisions that declared same-sex marriage legal in those states. In response, the forces of darkness placed Proposition 8 on the November 4th California ballot. It’s a voter initiative that would add California to the list of states with a constitutional amendment banning same-sex marriage.

Only one state has rejected such a constitutional amendment – Arizona(!!!) – a dyed-in-the-wool red state! Whould’ve thunk it? I’m not sure why.

In April I joined other volunteers on the streets asking people not to sign the ballot petition. We weren’t successful. Now we have to defeat it it the polls, even though there’s a chance that even if we lose the amendment would fail because the proposal is more than a mere amendment – it’s really a “revision,” and therefore can only be effected by either a 2/3 vote in Sacramento or a constitutional convention.

The L.A. Times reports that both sides have spent collectively more than $60 million. The out-of-state money, much of it from right-wing Christian organizations, has closed what had been a comfortable pro-same-sex marriage margin. The race is now too close to call.

I think I understand what the antis are thinking. After all, I used to entertain the same thoughts that drive them, sort of. But I opened my eyes and my mind and I learned better.

Logically, same-sex marriage makes sense. It's the only intellectually honest position. The only argument against it doesn’t stand up to the clear language of the states’ and U.S. constitutions addressing equal protection, due process and separation of church and state. We are not a theocracy – not yet. God help us if that’s what we ever become.

Civil unions don’t hack it either. Marriage is a “fundamental right” for every living person and people just see you differently if you tell them you’re in a civil union rather than a marriage. The denial of equal protection is simply a fact of life and it’s wrong wrong wrong.

I’ve been dating a man for several months now. Last night the subject of marriage came up in conversation. This morning over breakfast he asked me how I felt about it.

My California driver’s license reads “Sex: F.” So does my passport. The Social Security Administration says I’m female. So does the City of New York, which issued me a corrected birth certificate. So I could (if I wanted, and if he were to ask) actually marry this man legally, at least in the State of California – even if Prop 8 were to pass, at least until the yahoos came after me and my community specifically.

Maybe they will, maybe they won’t. In the meantime, hopefully Barack Obama will be elected together with Democratic majorities in the House and Senate, ushering in a new New Deal that will lift the veil of prejudice and repression against gender variance from sea to shining sea. Perhaps the people who passed state constitutional amendments will reconsider and will repeal those amendments. Who knows? Perhaps Newt Gingrich and Bill Clinton will be taking warm showers together. One can only hope.

So this afternoon I’ll rejoin my new MoveOn friends, calling undecided voters in swing states.

Saturday, October 25, 2008

Prop 8 Dilemma

This Election Day, California will vote on Proposition 8. It would enshrine into the state Constitution a prohibition against same-sex marriage, providing that "only marriage between a man and a woman is valid or recognized in California."

In the wake of the ENDA debacle, several bloggers suggest that transsexuals should not be supporting gay marriage. After all, it’s not our fight, is it?

For some transsexual individuals marriage presents no problem. Perhaps the person never plans to marry. Even if s/he does, several states no longer regard a person who transitions to still be his/her birth sex. In those states, a formerly male-bodied person who transitions to female is legally “female” (or visa-versa) and that person’s later marriage to a man (or woman, as the case may be) is not “same-sex.”

But to put it mildly, the laws are not clear-cut. Rather, the non-“same-sex” marriage characterization is merely implied, and usually only after the state issues to the transitioner a birth certificate reflecting their new sex. Curiously, twenty-some-odd states will do this -- more than the number of states that outlaw gender identity or expression discrimination. And so far, new birth certificates are only issued to someone who presents documentary proof that they had SRS. That means a vaginoplasty for MTF’s and usually sometimes something less than a phalloplasty for FTMs.

But beyond that, the anti same-sex marriage lobby has transsexuals in their sights too.

Prop 8 was just one of four proposed anti-same-sex marriage proposals. Another -- one which didn’t make it to the ballot -- would have banned marriage altogether between any two people who both have XX or XY chromosomes.

These wackos didn’t stop there. Their draft would have disallowed marriage for anyone who would alter his or her genes from XX to XY or visa-versa, even though that’s not possible now or even on the scientific horizon! But they’re busy thinking of new and creative ways to keep marriage sacrosanct.

Only Arizona voters have rejected a state constitutional ban on same-sex marriage. Voters in twenty-seven other states have enacted them, usually by wide margins.

In 2002, Californians voted for Proposition 22, another referendum against same-sex marriage. But Prop 22 wasn’t for a constitutional amendment. It was for a mere law, and this past May the California Supreme Court struck down that law as unconstitutional because (i) it denied a fundamental right (marriage) to some people and (ii) it violated the right to equal protection of the laws. By the way, it was a close (4-3) vote.

So now the proponents are putting the same language to California voters as a constitutional amendment because only a constitutional amendment is immune from legislative, judicial and executive meddling (the latter by a governator.)

Well, sort of. California has a curious constitutional amendment procedural wrinkle that ensures this fight won’t be decided for good this November, no matter how the people vote.

It has to do with whether Prop 8 is an “amendment” or a “revision.”

An “amendment” can be enacted by a mere 51% vote of the electorate. On the other hand, a “revision” requires either a 2/3 vote of the legislature or a constitutional convention. That hurdle is a lot higher than a mere majority vote by knee-jerk voters, or as the Founding Fathers called them, “the rabble.” This is why we have a republic – not a democracy. Hmmm….

If Prop 8 passes, the LGBT community will ask the California Supreme Court to rule that Prop 8 is really a “revision” because it’s so far-reaching and therefore shouldn’t be decided by the voters in a referendum, especially one that can be won by a mere majority vote. Prop 8 proponents (the Religious Right) will argue the opposite.

But back to the present.

In 2002, Proposition 22 passed with sixty-one percent of the vote. That’s nothing to sneeze at. Among Latinos, the percentage was even higher -- more than 70 percent. That’s approaching pneumonia. Similar opinions were expressed in a July survey of 672 likely voters in California.

The Prop 8 campaign is looking to an ecumenical coalition of religious groups to get out the vote against same-sex marriage. Beyond that, they’re counting on Latino voters to put Prop 8 over-the-top. According to a statewide Field poll, 49 percent of the state’s Latino voters said they’d support the amendment, compared to 38 percent who’d vote against it. 13 percent were undecided.

Jennifer Kerns, spokeswoman for the Yes on Prop. 8 campaign, told the Inland Valley Daily Bulletin, "Given their participation in the 2000 election with Prop. 22, the support of the Latino population is critical to the effort. They are a community that is extremely passionate about this issue. At least from what we've seen, they are very committed to upholding the definition of marriage as being between one man and one woman."

There’s no reason to doubt her. According to lsa Valdez, a sociology professor at Cal State San Bernardino, "Latinos are very conservative on same-sex marriage because of the strong influence of the Catholic Church.”

Many Latinos come here claiming asylum from discrimination in their home countries. Of all of them, it’s been my experience as an immigration lawyer that only the gays and transsexuals have rock-solid claims. So why are LGBT groups (and Latino gays and trannies) such fervent supporters of Latin American immigration when the people they champion overwhelmingly hate their guts to the point where Latino immigrants may swing the constitutional referendum against them?

The immigration issue is a burning hot-button, sure to evoke strong feelings whenever and wherever it’s raised, but it has particular poignancy within our community.

It’s not difficult to understand why Latino gays and transsexuals have an identity of immigration interest with their compatriots, but it’s fair to ask whether it’s in our interest (or theirs) to help recreate here the same appallingly repressive conditions they came here to escape.

Tuesday, September 23, 2008

Thank You, Judge Robinson!

Diane Schroer has won her case for Title VII sex discrimination against the Library of Congress, which hired then immediately fired her when she came out as transsexual. U.S. District Court (trial court) for the District of Columbia. Judge James Robertson issued the decision on Friday, September 19th.

Thank you, Sharon McGowen and your ACLU team for another impressive win. In 2005 Sharon also won the Lovo-Lara case before the Federal Board of Immigration Appeals.

Normally, trial court decisions are not reported. Thank you too for promptly (same day!) posting the decision on the ACLU website.

Expect to hear the Conservative Right try to brand Judge Robertson as another out-of-control “activist” judge. He’s not. Read the decision.

Judge Robertson decided for Diane Schroer on two bases.

First, he ruled that she made-out a Price Waterhouse “sex stereotyping” claim that qualifies as Title VII sex discrimination. Then he ruled that she also made out a plain old garden-variety Title VII sex discrimination claim.

What’s the difference between these two?

Title VII of the Civil Rights Act of 1964 addresses sex discrimination. The relevant section is 42 U.S. Code Section 2000e-2(a)(1). It provides in pertinent part:

“It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…”

It may sound odd to ask but what is the meaning of “sex?” Most people think they know but it’s been a hotly contentious issue since Title VII was passed in 1964.

Courts have not been kind to transsexuals. In general, they’ve held that discrimination against transsexuals is not discrimination based on “sex.” That’s been a difficult pill for the gender variant community to swallow because we know otherwise.

Judges are just like the general population, and sometimes worse. Some seem to understand the nuances of transsexuality but generally not. Some are flat-out transphobic. The consequences are sometimes horrific, and not just in employment discrimination cases. Some of the worst stories arise in family law contexts, where transsexual husbands are treated punitively by patently bigoted judges who impose punitive spousal and child support awards while denying them contact with their minor children. These cases go almost entirely unreported.

A lawyer I know who represents transgendered people, largely in divorce cases, tells me his clients don’t get a fair hearing before judges in L.A. County. That’s consistent with my own personal and professional experience.

I think these judges just don’t understand the basics. I have never polled them but I asked one judge I know socially what the difference is between “sex” and “gender.” He couldn’t tell me. In that respect they’re like the general population, which is to say largely ignorant about research showing that transsexuality is a birth condition, that gender identity can differ from a person’s outward appearance and is probably immutably “hard-wired” into the brain’s “circuitry” before birth.

I’ve asked but know of no continuing legal education program to enlighten judges about these matters.

The cases have been a mixed bag. In the earlier cases, the judges who “got it” were reversed on appeal. The tide started to change in 2000.

In 1974, Arthur Andersen, an accounting firm, dismissed Ramona Holloway after she informed them that she was undergoing treatment in preparation for sex change surgery. She sued in Federal District Court in San Francisco, alleging Title VII sex discrimination.

Ramona Holloway argued that for purposes of Title VII, "sex" is anonymous with "gender," and gender would encompass transsexuals. Arthur Andersen claimed that the term sex should be given the traditional definition based on anatomical characteristics.

The trial court sided with the employer. Ramona Holloway appealed to the supposedly liberal 9th Circuit and lost.

In 1981, Karen Ulane filed a Title VII sex discrimination claim against Eastern Air Lines that was very similar to Diane Schroer’s claim against the Library of Congress. Ulane won at trial (Judge Grady was a Gerald Ford appointee) but in 1984 the Federal 7th Circuit Court of Appeal in Chicago reversed. Judge Harlington Wood (another Ford appointee) wrote that Karen Ulane was “a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.” Because he regarded her as male she could not, by (his) definition, even bring a Title VII claim based on sex discrimination.

In 2001 the Kansas Court of Appeals reversed a trial court and in an opinion that read like a medical textbook on gender variance affirmed the validity of J’Noel Gardiner’s sex change to female and her right to inherit as a widow. In 2003, a Tampa, Florida trial court ruled that Michael Kantaras’ sex change from female was valid and affirmed his rights as a father. The case was televised on Court TV and the judge wrote an exhaustive 800-page opinion. Both were reversed on appeal. In both cases the higher courts punted, concluding that any decision regarding the sex of a transgendered person should be made by the legislature.

In 2000, in Schwenk v. Hartford, the 9th Circuit made the insightful observation that the terms “sex” and “gender” are used interchangeablely.

Five years after Karen Ulane lost her appeal the U.S. Supreme Court heard an appeal involving a woman who was denied promotion at (remember Holloway?) yet another major accounting firm. Nothing in the decision suggests her sexual orientation; it wasn’t an issue. Price Waterhouse denied Ann Hopkins partnership because she didn’t appear feminine enough. She sued, claiming Price Waterhouse engaged in “sex stereotyping” that she argued was Title VII discrimination based on “sex.”

Ann Hopkins won at trial and her victory was upheld on appeal by the D.C. Circuit Court of Appeal and then by the U.S. Supreme Court in a 6-3 decision.

“Sex stereotyping” was a novel theory and when Ann Hopkins made that argument no one was thinking about its consequences for the gender-variant community. But fifteen years later, a transsexual lawyer won a pioneering case for a fireman who transitioned on the job and was then fired. Jimmie Smith argued that Salem, Ohio engaged in Title VII sex discrimination when it fired her. The trial court dismissed the case on the city’s pre-trial motion that claimed that Title VII sex discrimination doesn’t protect transsexuals. Smith appealed to the Federal 6th Circuit Court of Appeal that the city had engaged in Price Waterhouse “sex stereotyping” (and therefore Title VII “sex” discrimination) because Smith presented as too feminine for a male. The appellate court reversed the lower court and in a stunningly powerful decision held for Smith.

A little later, transitioning police sergeant Philecia Barnes sued the city of Cincinnati after they fired her. She too argued Price Waterhouse sex stereotyping to make out a Title VII sex discrimination claim. The jury’s verdict was upheld by the same 6th Circuit Court of Appeal that ruled for Jimmie Smith.

Randi Barnabee, a transgender trial lawyer, represented both Jimmie Smith and Philecia Barnes.

Krystal Etsitty was a pre-op Utah bus driver who was transitioning on the job but couldn’t afford SRS. When her employer fired her she sued, alleging Price Waterhouse “sex stereotyping” claim, a regular Title VII sex discrimination claim, and an equal protection claim.

In 2005, the U.S. District Court for the district of Utah ruled against Krystal Etsitty, holding that Title VII does not protect transgender employees. The Court bought into the bus company’s defense that it might face civil liability from someone who might be offended by one of its pre-operative male-to-female bus drivers using a women’s rest room.

The District Court also rejected Krystal Etsitty’s “sex stereotyping” claim.

Krystal Etsitty appealed to the conservative 10th Circuit Court of Appeals. In 2007, that court side-stepped the Title VII issues and rubber-stamped the lower court on the bus company’s civil liability fear-mongering defense. This is the same tactic that conservatives are using to scare voters into repealing gender identity and expression protection ordinances in Montgomery County, Maryland and Gainesville, Florida.

The 10th Circuit thus avoided a split with the 6th Circuit, which had ruled in Smith and Barnes that transsexuals are protected under Title VII against discrimination because of sex under the “sex stereotyping” theory.

In baseball, a walk may be as good as a hit but “sex stereotyping” is not quite as good as winning on a plain-vanilla Title VII sex discrimination claim. That goal, however, has proven elusive.

So 24 years after Ulane, what’s new? Other than the fact that California statutes would now protect Ramona Holloway’s right to transition on-the-job, maybe Diane Schroer’s case.

Like Jimmie Smith and Philecia Barnes, Diane Schroer won at the trial court level on a “sex stereotyping” claim. Like Karen Ulane, but unlike Smith and Barnes, she also won on a claim of plain-vanilla Title VII sex discrimination.

Like Ann Hopkins, Schroer’s case was heard in the District of Columbia. It’s a very influential federal circuit that hears many federal law claims so its decisions often carry greater weight than those from other circuits. That makes this case significant.

It’s also significant that Diane Schroer sued the Federal government – the Library of Congress. That’s a first for transsexual rights litigation. It’s bound to make people sit up a little straighter and take greater notice of this issue.

The political landscape is considerably different now. Transsexuals are coming out of the closet. Twelve states, the District of Columbia, and seventy-some-odd counties and municipalities have laws protecting gender identity and expression. This reflects a growing general acceptance of transsexuality. The media is becoming increasingly aware of and sophisticated about transsexuality.

But the struggle continues, even after Smith and Barnes.

None of these cases have made it to the U.S. Supreme Court. They probably won’t unless there’s a clear split between judicial circuits and there isn’t one yet.

There would be a split (with the 6th Circuit) if the D.C. Circuit Court of Appeals were to reverse the trial court. There won’t be a split if the D.C. Circuit upholds Diane Schroer’s win.

One hopes the government does not appeal the case because no one knows what the outcome would be. Beyond that, the 800 pound gorilla is whether the U.S. Supreme Court would grant certiorari to any case on this issue.

That probably wouldn’t be a good idea just now.

In 1989, the Supreme Court voted for Ann Hopkins and against Price Waterhouse by a vote of six to three. Of the six, only one remains on the Court today – John Paul Stevens, and he’s eighty-eight. Brennan, White, Marshall, Blackmun and O’Connor are gone. Today, only three new Justices (Souter, Ginsberg and Breyer) would be Stevens’ likely allies. That’s only four votes out of nine.

On the other side, Rehnquist has been replaced by Roberts, who would likely join fellow Price Waterhouse dissenters Scalia and Kennedy and newcomers Thomas and Alito to form a 5-4 majority against Diane Schroer.

Perhaps times have changed sufficiently for us to say that the legal landscape is now safe for transsexuals. Perhaps a conservative judge may depart the Court and President Obama would appoint a liberal, tipping the scales back to better days.

Maybe Roberts will surprise everyone. It’s less impossible to think that Justice Kennedy could be persuaded to change camps. The history of American jurisprudence is replete with once unpopular views becoming law years later. It took the Supreme Court to reverse itself over “separate but equal” and less on consensual gay sodomy. One must hope.

In the meantime, the gender variant community is savoring Friday’s decision. What exactly did Judge Robertson do?

For starters, Judge Robinson denied all government pre-trial motions to dismiss Diane Schroer’s case. He looked back favorably on Judge Grady’s view favoring Karen Ulane twenty-six years earlier – the one Judge Wood’s panel rejected. I like to think he wanted this case to be tried so the evidence would unfold in open court. That’s what happened. Read the decision.

Judge Robinson heard testimony as to whether “gender” is part of “sex.” Diane Schroer’s expert said it was; the government’s expert said it was not.

Schroer’s expert was Walter Bockting, Ph.D. He’s the president-elect of the World Professional Association for Transgender Health (WPATH), formerly the Harry Benjamin International Gender Dysphoria Association (HBIGDA).

The government trotted out Dr. Chester Schmidt, a professor of psychiatry at John’ Hopkins Medical School. The past chairman of that department was Dr. Paul McHugh, a transphobe who has done more damage to gender variant people than any other living person on the face of the planet.

The government likes Dr. Schmidt. He was their expert witness on transsexuality in Rhiannon O’Donnabhain’s Boston Tax Court case last year where the issue was the deductibility of SRS expenses as a bona fide medical expense.

Judge Robinson wrote that Dr. Schmidt regards gender identity as a component of ‘sexuality’ rather than ‘sex.’

Is it possible to split hairs any finer?

Sharon McGowan (ACLU) – please post Dr. Schmidt’s deposition transcript.

I’m inclined to believe Judge Robertson leaned strongly toward Dr. Bockting’s view but he wrote that deciding between Dr. Bockting and Dr. Schmidt was “not within this Court’s competence.”

I think Judge Robinson was being overly modest. More likely, he judiciously decided against touching a live third-rail and wrote instead that making such a decision was “unnecessary.”

Judge Robinson reviewed the evidence and concluded that every reason given by the Library of Congress for not hiring Diane Schroer was a mere pretext. It’s delicious.

Here are a few of my favorite quotes from Judge Robinson’s decision:

“Courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.”

“The decisions holding that Title VII only prohibits discrimination against men because they are men, and discrimination against women because they are women, represent an elevation of “judge-supposed legislative intent over clear statutory text.”

(Citing that raving, out-of-control liberal, Antonin Scalia.)


“The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination ‘because of . . . sex.’”

What more is there to say?

Title VII is one path to nationwide gender identity and expression protection for gender variant people. In the absence of that protection, the community has sought alternative legislation to make the same point -- the federal Employment Non-Discrimination Act (ENDA.) Last September we watched the Democratic leadership throw the transsexual community under the bus when it jettisoned us from the bill.

Our leadership said they didn't have the votes. The back story is that they couldn't get the votes of the thirty newly-elected conservative Democrats whom Rahm Emmanuel engineered into office in narrowly-decided elections. No one ever says what was done to lobby these people. Rather, it's assumed they couldn't be persuaded. I'm from Missouri.

Perhaps we should just focus on working our way through the courts.