Controversy Emerges Over Gender Identity Laws

United Nations – Legislation incorporating gender identity protection has ignited debate among activists for gay and lesbian rights, with some arguing that the legislation actually endangers women and threatens their physical safety, while others contend that gender identity protection is key to obtaining equality for the LGBT community.

“The proliferation of legislation designed to protect 'gender identity' and 'gender expression' undermines legal protections for females vis-à-vis sex segregated spaces,” wrote lawyers Elizabeth Hungerford and Cathy Brennan, in a response to a call from the United Nations Commission on the Status of Women for communications regarding “alleged violations of human rights that affect the status of women in any country in the world”.

Sex-segregated spaces, such as public bathrooms, are necessary for females especially due to the “documented frequency of male sexual violence against females”, Brennan and Hungerford wrote. “As females, and as lesbians, we seek legal recognition and protection for the potential harm that females may experience.”

Additionally, “'gender identity' legislation incorporates stereotypical ideas of 'what is female' into law,” they argued, complicating the legislation's impact from an intellectual as well as from a public health and safety perspective.

Gender identity, according to the LGBT rights group Human Rights Campaign (HRC), “refers to a person's innate, deeply felt psychological identification as male or female, which may or may not correspond to the person's body or designated sex at birth.” HRC estimates that anywhere from .25 to one percent of the U.S. population identifies as transgender.

While Brennan, Hungerford, and their supporters worry about the legislation's implications for women, mainstream LGBT rights groups such as the National Gay and Lesbian Task Force and Human Rights Campaign consider gender identity legislation key to pursuing equality for and ending discrimination against gays, lesbians, bisexuals, and transgender/transsexual persons.

In June, the New York Assembly passed a bill to include gender identity and expression with other characteristics, such as age, sex or race, protected from discrimination in employment, education and other areas.

Human Rights Campaign welcomed the vote, praising the Assembly. “Gender identity and expression should not be factored into an individual's access to education, employment, housing or public accommodations,” HRC president Joe Solmonese said in a statement.

Impinging on women's rights

Hungerford and Brennan were concerned about the impact that gender identity legislation will have on women's safety, citing several aspects of gender identity legislation, passed now in 15 states and Washington D.C. and being considered in other states, as causes for concern.

One was the fact that gender identity does not require objective proof, and “merely requires the person seeking protection to assert that he or she identifies as the sex opposite his or her sex at birth”, as they wrote in the communication.

Because existing definitions of gender identity are based on self- identification rather than duration or medical documentation, they create the potential for “a human rights violation against all females”, the communication said.

In an interview with IPS, Brennan described the definition of gender identity as overly broad and the discussion surrounding its role in public policy as lacking nuance, jeopardising female safety.

She cited examples of men entering public female bathrooms, for instance. “Males are already abusing females in that they spy on females in sex-segregated spaces,” she noted. “Do we want to give sanction to that?” She asserted that ample evidence of such behaviour exists, such as examples (compiled by transsexual activist Dana Lane Taylor.

“I'm actually unconcerned about people who are transgender entering sex-segregated space,” Brennan told IPS. “I'm very much concerned, however, that we are adopting a completely over-broad definition that would give cover to non-transgender males to have a reason and a basis for being in that space without question.”

Hungerford and Brennan supported a definition of gender identity as a person's identification with the sex opposite his or her birth sex that could be supported with evidence, such as history of medical care.

Support for gender identity legislation

Others maintain that gender identity legislation is much needed, however, because discrimination against transgender persons remains strong.

Earlier this year, the National Gay and Lesbian Task Force published “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey”, which found that in Maryland, 71 percent of transgender and gender non-conforming persons reporting suffering harassment and mistreatment in the workplace.

In May, after Nevada passed legislation banning employment discrimination based on gender identity, Task Force Executive Director Rea Carey stated, “The startling statistics and personal stories found in our national survey on transgender discrimination show just how critically necessary these protections are,” and she commended Nevadan lawmakers for the legislation.

Brennan and Hungerford emphasised in their communication that they condemned discrimination against transgender and transsexual persons, but that at the same time, they “abhor[ed] the lack of concern for females that exists in the legislation” fighting discrimination based on gender identity.

“We should be able to come up with a proposal that balances” all efforts and sides, Brennan told IPS. “So we're just trying to start a conversation” incorporating different perspectives, she concluded.