Questioning Transphobia

I wrote last month about the decision by the conservative Christian Democrat party government (along with the nationalist Sweden Democrat party) to retain a 1972 gender recognition law under which TS/TG and gender variant people who want to change their legal gender are required to be sterilised. The requirement was a violation of the European Convention on Human Rights, which is enacted as law in Sweden.

There was an international outcry at the loss of the opportunity to bring the legislation up to date: in Sweden, the law is only reviewed every forty years. Advocacy groups and activists from around the world protested the decision and an online petition to the Swedish Prime Minister received over 77,000 signatures.

Now, via Ulrika Westerlund, President of RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights), I learn that the campaign appears to have been successful, with the conservative party which was blocking the reform to remove the criteria apparently having changed its mind.

According to a statement in Debatt:

Everyone is equal here. From the Christian Democrats’ side, we have been clear that the issue of sterilization at sex change – as well as other issues related to children – requires careful thought and analysis. Many transsexuals are met with hatred and fear, in violation of the principle of equal worth of all – the hallmark of Christian tradition of ideas and thus the Christian Democrats. Therefore, it is our opinion that the requirements for sterilization at sex change should be abolished, writes Christian Democratic party leadership.

This is very good news indeed for TS/TG and gender variant people in Sweden who wish to change their legal gender, although the underlying issue (linking people’s legal identity to their medical status) remains unexamined.

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As a footnote, it should also be remembered that Sweden isn’t the only member state of the European Union requiring TS/TG and gender variant people to undergo surgery before they can change their legal identity. Published work by the TGEU’s TVT Project suggests at least eight other countries – Denmark, France, Ireland, Italy, Netherlands, Poland, Slovakia, Spain – where legal change of gender is contingent upon GRS/sterilisation or Gender Reassignment Therapy and we can only hope that these countries will follow Sweden’s example. (Note: the TVT Project’s list is not definitive and is subject to ongoing research and updates).

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Image: transgender symbol on blue and yellow background compiled from public domain images in Wikimedia Commons (here and here) by Helen

Last week, the government of Sweden took the decision to retain a 1972 gender recognition law under which TS/TG and gender variant people who want to change their legal gender are required to be sterilised. According to Ulrika Westerlund, President of RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights), this was done to satisfy the conservative Christian Democrat party who, along with the nationalist Sweden Democrat party, are the only two groups in favour of the law. I gather that Prime Minister Fredrik Reinfeld was fully aware that this reqiurement is a violation of the European Convention on Human Rights which is enacted as law in Sweden.

The Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, has made a very clear stand on the issue, that forcing TS/TG and gender variant people to undergo unwanted medical interventions in order to change their legal gender is a breach of human rights. The Comittee of Ministers of the Council of Europe, representing 47 membership states has taken a similar stand. The bitter irony in all this is, of course, that while Sweden is often considered to be in the forefront of human rights advocacy and implementation, this decision would seem to be a huge step backwards.

Concerns have been voiced at the loss of the opportunity to bring the legislation up to date: in Sweden, the law is only reviewed every forty years and it already creates at least one anomaly, in that the present law also requires TS/TG and gender variant people to be single in order to receive legal gender recognition – and this in a country which already has same sex marriages. Courts have previously overruled this requirement, but nevertheless it is still enshrined in the law. Additionally, there is the risk of setting a precedent and this is a particular worry for some TS/TG and gender variant people in Finland where the gender equality ombudsman has recommended that Finland should remove a similar requirement from the Finnish law. Finland also has a Christian Democratic Party in its Government which has already blocked a reform giving same sex couples the right to marry.

Although Sweden is not alone in upholding the requirement of forced sterilisation (the Netherlands, Denmark and France are other European countries with similar legislation [source]), the outcry on various TS/TG forums was immediate and international; amongst others, Human Rights Watch, the European Parliament Intergroup on LGBT Rights and TGEU and ILGA-Europe have all made formal statements of protest to the Swedish Prime Minister and Parliament, calling for the immediate abolition of the forced sterilisation requirement for legal purposes.

Meanwhile, All Out, an activist group advocating for improvements in the lives of LGB & T people worldwide, has joined with RFSL to launch an online petition to let the Swedish Prime Minister know that this legislation is unacceptable. The petition currently has over 36,000 signatories and is aiming for at least 50,000. If this is something you feel you can support, then please sign – and distribute the information and the link as widely as you can.

http://allout.org/stop_forced_sterilization/

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[Image: transgender symbol on blue and yellow background compiled from public domain images in Wikimedia Commons (here and here) by Helen]

This is the right wing political movement in the United States today:

A law under consideration in South Dakota would expand the definition of “justifiable homicide” to include killings that are intended to prevent harm to a fetus—a move that could make it legal to kill doctors who perform abortions. The Republican-backed legislation, House Bill 1171, has passed out of committee on a nine-to-three party-line vote, and is expected to face a floor vote in the state’s GOP-dominated House of Representatives soon.

The bill, sponsored by state Rep. Phil Jensen, a committed foe of abortion rights, alters the state’s legal definition of justifiable homicide by adding language stating that a homicide is permissible if committed by a person “while resisting an attempt to harm” that person’s unborn child or the unborn child of that person’s spouse, partner, parent, or child. If the bill passes, it could in theory allow a woman’s father, mother, son, daughter, or husband to kill anyone who tried to provide that woman an abortion—even if she wanted one.

Jensen did not return calls to his home or his office requesting comment on the bill, which is cosponsored by 22 other state representatives and four state senators. UPDATE: Jensen spoke to Mother Jones on Tuesday morning, after this story was published. He says that he disagrees with this interpretation of the bill. “This simply is to bring consistency to South Dakota statute as it relates to justifiable homicide,” said Jensen in an interview, repeating an argument he made in the committee hearing on the bill last week. “If you look at the code, these codes are dealing with illegal acts. Now, abortion is a legal act. So this has got nothing to do with abortion.” Jensen also aggressively defended the bill in an interview with theWashington Post‘s Greg Sargent on Tuesday morning. We have more on Jensen’s position here.

“The bill in South Dakota is an invitation to murder abortion providers,” says Vicki Saporta, the president of the National Abortion Federation, the professional association of abortion providers. Since 1993, eight doctors have been assassinated at the hands of anti-abortion extremists, and another 17 have been the victims of murder attempts. Some of the perpetrators of those crimes have tried to use the justifiable homicide defense at their trials. “This is not an abstract bill,” Saporta says. The measure could have major implications if a “misguided extremist invokes this ‘self-defense’ statute to justify the murder of a doctor, nurse or volunteer,” the South Dakota Campaign for Healthy Families warned in a message to supporters last week.

Emphasis added.

I don’t know if this is the actual logical outcome of that bill, but the wording does strike me as leading and suspicious.

Rep. Mike Pence (R-IN), the longtime leader of efforts to eliminate Planned Parenthood’s funding that goes towards women’s health programs, has released a statement saying that the videos produced by Lila Rose’s radical group Live Action should push Congress to defund Planned Parenthood. The Religious Right has consistently tried to demonize Planned Parenthood in order to strip the organization of its federal funding, and Live Action’s videos have encouraged anti-choice groups to step-up their activities. While Planned Parenthood notified the FBI of a possible sex trafficking ring promptly after members of Live Action tried to scam clinic workers, anti-choice leaders embraced the discredited videos anyway. Pence is now calling on Congress to pass his legislation that would end federal funding of Planned Parenthood:

The recent release of an undercover video exposing duplicity and potential criminality by an employee of Planned Parenthood is an outrage.

Every American should be shocked that an employee of the largest recipient of federal funds under Title X has been recorded aiding and abetting underage sex trafficking.

The time to deny any and all funding to Planned Parenthood is now. In the wake of yet another scandal involving Planned Parenthood, I urge Congress to move the Title X Abortion Provider Prohibition Act to the floor for immediate consideration.

Dear Lisa,

This is it. Right now, Congress is considering a provision to strip all federal funding from Planned Parenthood health centers.

This is truly an emergency for Planned Parenthood and women’s health. Call now and tell your U.S. representative to vote NO.

Anti-choice leaders in the House are forcing a vote that would deny Planned Parenthood health centers every dime of federal funding.Without this funding, many people would lose access to their only source of basic health care.

We need you to act now by calling your representative. Click here to be connected, or just dial 202-730-9001 and tell your representative to vote NO on any attempt to defund Planned Parenthood.

Critical public health programs including Title X provide funding for birth control, cancer screenings, HIV testing, and other lifesaving care for those who can’t otherwise afford it — and all of this funding is in danger. For many women, Planned Parenthood clinics are theonly source for these services.

The consequences of passing this bill are clear — and they would be devastating. More women would have unintended pregnancies. Cancer would develop, undiagnosed, in countless women. There is no doubt: cutting off millions of women from care they have no other way to afford places them at risk of sickness and death.

That’s exactly what Congress is voting on this week. It’s up to us to tell them NO. It’s up to us to protect local health centers and the people who rely on them every day. It’s up to us to make it clear that we will not stand for these outrageous attacks on Planned Parenthood or any effort to undermine access to lifesaving care. Speak out now — demand that your U.S. representative vote NO.

Thank you for standing with us and helping to protect Planned Parenthood and the women, men, and teens our health centers serve.

By way of an update on my previous post about two trans men in Western Australia who won the right to change the sex marker on their birth certificates without having had hysterectomies, a decision which was then overturned by the state Attorney-General, ABC News today reports that the men will now appeal against the Attorney-General’s decision in the High Court:

The state’s Attorney General appealed against the decision, arguing it could mean a person could be legally male but still bear children.

The Court of Appeal said fertility would not prevent them being considered men but they were precluded because they did not have male genitals.

One of the appellants, who can be identified only as AH, says he’s not happy with the court’s decision.

“It seems to be this cosmetic assessment, how do people physically present in the world.”

“The two judges who’ve upheld the State’s appeal have decided that your external, physical presentation (including your genitals) is incredibly important to whether you’re male or female.”

AH says the decision means the only way for transgenders to be considered male is genital surgery which can cost up to $100,000.

“It’s surgery that has a pretty poor surgical result for a huge amount of money and a big chunk of your life missing,” he said.

[...]

“Very expensive, very dangerous and not actually available in Australia so they’ve come up with a decision that sets the bar so high that I’m not sure that any trans-men in Australia are actually able to achieve it.”

“The reality is that it’s just not feasible.”

Meanwhile, the Attorney General, Christian Porter, continues to hold to an astonishingly unenlightened essentialist justification for his decision: he says that a person cannot be considered male if they have functioning internal and external female reproductive organs.

For AH, though, it’s an administrative nightmare – “I end up with this really mixed-bag of documentation.“:

“Some of my documents, such as my passport, say that I’m male. My birth certificate currently says I’m female. I suspect that if myself and another man turned up to get married, the response would be “no, no, no, you can’t do that.”

“It just creates all of these bizarre inconsistencies and you end up spending half your life in court or in conciliation meetings or mediation meetings trying to decide whether for the purposes of this particular activity or this particular document, am I male or female?”

AH goes on to point out another crucial aspect of this confusion: he says that without legal recognition, transgender people are not protected by anti-discrimination laws.

“If, for example, my employer found out that I had a trans-history, and my employer decided that they didn’t like the fact of my trans-history and they wanted to fire me, they could and that would be legal, I don’t have any protection.”

AH and his fellow appellant are confident that the appeal will succeed because of the inconsistencies of the state’s arguments:

“We’ve now had two rulings, from the State Administrative Tribunal and the Supreme Court saying that the issues of hysterectomies and fertility shouldn’t be an issue, so that, I think, has been pretty conclusively put to bed.”

“Now there’s this issue of whether trans-men should have to have surgery on their genitals.”

[...]

“It seems to me a bit farcical to have a law that is supposedly able to help people to amend their documentation, but that actually is impossible for anyone to meet.”

Further to Queen Emily’s post last November about two trans men in Western Australia who won the right to change the sex marker on their birth certificates without having had hysterectomies, it seems that their battle isn’t over yet. Via ABC News:

However, the state Attorney-General appealed the decision, arguing it could have unforseen effects on WA law because it would mean a person could be legally male and yet still bear children.

Now in a majority decision, the Court of Appeal upheld the Attorney-General’s challenge, ruling that because the two people still had all the reproductive characteristics of a woman, they would not be identified according to community standards as members of the male gender.

How is this not biological determinism – essentialism – being enshrined in law? The Court of Appeal seems to be using one of the oldest tropes against these two men despite the medical profession’s recognition half-a-century or more ago that sex and gender are different (if related) things.

To my mind, the fundamental, underlying issue is the social/cultural pressure on each and every one of us to conform to binary “norms” of sex and gender which are used as big sticks with which to beat anyone who falls outside of those narrow and inaccurate categories. Fixing that problem, though, requires a paradigm shift in attitudes of mainstream society and until/unless that happens, then I fear these injustices, these breaches of human rights, will continue unchecked and uncontrolled.

Cross posted at Hoyden About Town

Two and a half weeks ago, two trans men from Western Australia won the right to change the sex marker on their birth certificates without their having had hysterectomies. Though this may seem rather minor to the average cis person, the ruling by the Western Australian State Admin Tribunal was an important victory for transsexual and transgender rights in Western Australia, moving document change away from the usual expensive and painful genital surgery. Yesterday, however, the West Australian Attorney General Christian Porter announced that the State would be appealing the decision.

Why, you might ask?  What is so important, so pressing, such a grave injustice that the WA Attorney General’s office would use taxpayers money to continue to fight a case they’ve only just recently lost?  The scary transsexual men might breed.  Of course.

The genesis of the case I covered here back in November last year, after the State first denied the mens’ petition.  From the Australian:

After former West Australian attorney-general Jim McGinty decided to challenge the case in the tribunal, the state will argue that the possibility of pregnancy exists.

“The ability to bear children is plainly not a gender characteristic of a male,” George Tannin SC said in the State’s submission to the appeal.

“The retention of such an ability must necessarily result in the applicant not possessing the gender characteristics of a male.”

That’s right.  It’s not whether they currently can bear children – because both are on testosterone and cannot – but the possibility that they might.  One day.  Maybe.  Both men testified that they intended to take testosterone for the rest of their lives, but that apparently doesn’t suffice for the Attorney General’s office.  What cannot be abided is the mere thought of a Thomas Beattie, of trans people having power over our own reproductive capacities.

Even the judgment of the tribunal victory for the two men two weeks ago makes clear that the document change was conditional on their infertility:

“Both applicants had undergone bilateral mastectomies and testosterone treatment as a result of which each had undergone extensive physical changes consistent with being male,” the tribunal said in its finding.

” … the tribunal accepted the evidence of each applicant that he intended to continue testosterone treatment for the rest of his life.

“It accepted the medical evidence that each was, and would remain, infertile for as long as he continued testosterone treatment”.

Now, the West Australian rules are inconsistent on this front with regard to trans women—our permanent sterility from estrogen counts for precisely nothing, legally speaking.  This would have, I hope, given trans women a lever into another test case with non SRS based criteria.  But no, first this case needs to be appealed again.

Also important to note is that this represents one half of heteronormativity—the clear exertions of the State to try to keep trans people from contaminating heterosexual reproduction with our.  The other is the fact that trans people who marry pre-SRS cannot change their birth certificate either.  The ostensible reason is that with the Federal ban on same-sex marriages, the State would be creating them.  However, the Federal government in July suggested it would accept same-sex marriages with one transsexual partner.  The point is then, that it is the West Australian State (the Gender Reassignment Board) that is working hardest, trying to “protect” the heterosexual institutions of marriage and childbirth from trans people.

So what if there’s the unlikely event that one or both of these guys has a baby sometime?  So what? They and all the rest of us deserve the right to the correct documentation.  But I know, I know, I’m living in Magic Fairy Land, where populations don’t need to be sterilised in order to not be put at risk for discrimination and violence.  Back in the real world, apparently it does seem like quite a threat to the State.

So yesterday, the Bush administration yesterday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs.  Jill at Feministe has pointed out that while this undoubtedly chiefly aimed at women’s reproductive freedoms, this is actually not about abortion–which depressingly already has this exception–but easy access to contraception.

One point I want to make about that, which I’ve stolen from Lee Edelman’s No Future, is that America is being organised around the figure of The Child.  Not actual children, let alone the adults those children grow into, but a rhetorical child who must be protected at all costs–from the corrupting influence of gay marriages, porn on the internet etc and who must always be allowed to exist.

The rights of the Child, who is figured as a full person and not as a body of cells or ffs an egg and a sperm, supercedes the rights of adult women to have control over their bodies.  Never mind that people (and I want to make the point that it’s not just women, eg some trans men use birth control too.  Seriously, pay attention cis feminists and stop making the normative assumption that reproductive health equals het cis woman) use the pill primarily for other health reasons–to regulate their periods, to moderate PMS and PMDD etc etc.  And needless to say, The Child does not grow up to be queer, or trans, or sexually active outside the sanctity of marriage.  And The Child is clearly normatively white.

But whilst it is clearly aimed at heterosexual cis women, it will have a massive impact on other groups–especially trans men and women.

From the Washington Post:

“The far-reaching regulation cuts off federal funding for any state or local government, hospital, health plan, clinic or other entity that does not accommodate doctors, nurses, pharmacists and other employees who refuse to participate in care they find ethically, morally or religiously objectionable.”

Ok, let that sink in a bit.  Care they find ethically, morally or religiously objectionable.  Now, where is that going to leave trans people?  Sex workers?  People they think are drug users (a highly racialized image after all)?  People with disabilities?

Like queerness, being trans has been framed by many on the Religious Right as a moral issue.  To be trans is to be, by definition, immoral.  By situating health care as a “conscience” issue, this law allows transphobic health care workers–not just doctors, but pharmacists, emergency medics etc etc–full license to indulge their bigotry and to not treat us.  So, even if you can get through the knife lined obstacle course that is the gatekeeper process and get through to a hormone prescription, the bloody pharmacist might not even give them to you.

We all know health care for trans people is already shitty, let alone giving health care providers carte blanche to treat us worse. Remember Tyra Hunter, who died because firefighters decided not to perform emergency resuscitation on her when they discovered she was trans, and then a doctor at Washington General decided not to treat her.  Because she was trans, because she was a woman of color, because she was not a person, she was an “it.”  And, because some people consider that our existence is immoral and must be squashed out.

This is a nightmare of a ruling that potentially allows any person in the health-care business to rule that treating trans people goes against their conscience, and when something serious is occuring, you don’t have the time to shop around for someone who will treat you.

And the intersection between transness and race here will be even more deadly.  Medicine has a long history of being used against people of color in the US, and this gives health care people legal protections to further that.  As Kristin “the mean one on Feministe” just said to me, making the horrid implications of this explicitly clear:

“I didn’t quite make the connection as to why doctors would want to refuse anyone treatment in the context of a miscarriage at first.  It just clicked.  Why would they want to do that other than to refuse treatment to people they judge to be the “cause” of the miscarriage?   You know, people like, say, possible drug users.  Or people otherwise marked as “unworthy” of care.  Say, homeless people, immigrants…  Fuck.  I mean, why else would anyone demand that kind of “right”?  Fuck fuck fuck…  I think this is going to be even more evil in practice than it looks on the surface.  If that kind of “protection” becomes a fucking protocol, oh my god…  If this becomes widespread…  Organized against a specific group, that’s genocidal.”