Dr. Jillian T. Weiss

Harvard LGBTQ Policy Journal on Trans Identification

Filed By Dr. Jillian T. Weiss | May 17, 2011 12:00 PM | comments

Filed in: The Movement, Transgender & Intersex
Tags: birth certificates, drivers license, Harper Jean Tobin, Harvard LGBTQ Policy Journal, Harvard University, identification documents, NCTE, no-match letters, Social Security Administration, Social Security card

Harvard University's LGBTQ Policy Journal at the Kennedy School of Government recently published an article by Harper Jean Tobin, Fair and Accurate Identification for Transgender People.Harvard_logo.jpg

Ms. Tobin, a lawyer who works for the National Center for Transgender Equality as Policy Counsel, is one of the brightest young trans policy advocates. There's no doubt she'll do great things in the future. The article itself is well worth a read.

Ms. Tobin's article takes a policy approach, noting a major shift toward reform of policies regarding gender documentation taking place across the country. She argues that the updated policies reflect a contemporary understanding of what it means to be transgender and of the role of medical treatment in gender transition. The article is filled with references to useful data. She recommends that such an approach be adopted by all state and federal agencies.

I applaud Ms. Tobin's article. It's very well written -- concise, chock-full of data, and the conclusions flow naturally from the data. I published a law review article on this subject in 2001, The Gender Caste System: Identity, Privacy and Heteronormativity, back when data on trans people was as rare as hen's teeth. (Now that I've passed the half-century marker, I find myself reminiscing more and more about the old days.) I argued that the right to privacy in U.S. constitutional law creates a right to determine one's gender identity in government documents despite governmental regulations to the contrary, and published a follow-up article last year. Ms. Tobin's article takes a different tack.

Ms. Tobin notes that identification documents are among the most serious barriers to employment, housing, essential services, and even personal safety. She suggests that the paradigm that requires proof of surgery to change gender on personal documents is outmoded and dangerous.

But imagine that these everyday documents contained information about you that was not only of a private and personal nature but also could easily lead to discrimination and harassment from which you might lack any legal protection or recourse.

She cites data indicating that genital reconstructive surgeries are especially rare, with fewer than one in five transgender women and fewer than one in twenty transgender men having undergone them. I find it interesting that she refers to "genital reconstructive surgery," rather than sex reassignment surgery, gender reassignment surgery, gender confirmation surgery or other common formulations. I have to admit I don't like the sound of "genital reconstructive surgery," as it calls up a somewhat unwelcome imagery in my mind. But perhaps it is most accurate. We've had a lot of discussion here on Bilerico about what to call such procedures. I usually go with sex reassignment surgery, as I feel that terminology using the word "gender" is inaccurate. But I'm beginning to waver on that point.

She also cites data showing that the percentage of transgender people who are unable to update identification and official records to reflect their lived gender varies from 41 percent for driver's licenses and 51 percent for Social Security records to 74 percent for birth certificates. Prior to a change in federal policy in June 2010, 75 percent of transgender people were unable to obtain a passport that reflected their lived gender, and 79 percent were unable to update all their identification and records.

The article also reviews the history of state laws authorizing corrected documentation for transsexual people. It suggests that "increasingly, however, policy makers have adopted the view that an individual's health care provider--typically either a primary care physician or a therapist--is best positioned to determine the point at which it is appropriate to update gender on official documents." In addition, the role of discretion is discussed, noting that "broadly phrased laws and policies have placed substantial and almost completely unguided discretion in the hands of administrators and, in some cases, local judges..."

This leads to a discussion of the inconsistent results from the patchwork quilt of policies, and best practices with regard to specific types of documentation.

I think this well-documented article will be useful to policymakers and litigators in future situations where identification documents are at issue.

The full article can be found here.

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It is 1:22 pm. The last few days have been an emotional drain.

I skimmed through a few pages of your paper. It takes a lot of time to read this stuff then sort through the implications. The expression "shitstorm" was used over at PHB in regard to Autumn Sandeen's post about Janice Raymond. The last long thread attached to the last Chaz Bono post was one. I don't know if you're aware of this decision in Australia:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=151840

But, elsewhere another "shitstorm" developed over this. Seems like "shitstorms" have been brewing all over the place. I see the clouds on the horizon right now. Probably get a lot of hits on this one. This subject goes beyond "gender". I noticed the expression "psychological gender" used a few times in your paper. I don't understand. I also notice the Harvard Seal, kind of like an imprimatur or the Good Housekeeping Seal of Approval. This stuff comes at people like a freight train. Who that is not a lawyer or clinician, or queer theory writer specializing in this stuff can keep up with it and still earn a living? How we are defined is out of our control.

Bottom line in discussions about gender for transsexual people and, it would seem, intersex people - all roads lead to Gender Identity Disorder with or without DSD when one finds it necessary to reject a sex assignment. This is a very complicated subject that has to do with sex - everybody's(as in the total population) not just people who have been trans - genderED. What's being done to get rid of the "GID" mischaracterizations? They do more harm than anything else.

Now, it's 1:44. I think I'd better get off the track before I'm hit by that freight train and wind up accused of derailing it.

Anymore it's practically always a shitshow on the trans threads as the two factions duke it out in almost every thread that could even smell like anything related to gender.

Frankly, it's become boring and tiring.

Seriously Bil I think we are all getting tired of it all ten or more different factions believe me there are way more than two of them.My apologies to you if lately my growing frustration is becoming more obvious.I honestly want to be your allie but I won't accept being forced into the community simply because someone else thinks its their right to place me here. The last comment I placed will be it for a while on T issues unless WPATH,NGLTF,NCTE and the aclu care to respond to it they are all intertwined together and I think they should to explain to all of us how what they are doing is right.

I would pretty much love if I never had to see this particular discussion on Bilerico ever again. I don't exactly enjoy having to defend my inclusion in LGBT.

I keep thinking you need to set up an open thread for the trans wars, and forbid such discussion in any other thread, immediately deleting any comment related to that. That way, they have a place to fight, and the rest of us don't have to see the exact same stuff posted in every single trans thread.

I don't think you realize how tiring. It is very difficult keeping up with how the activists in the LGBT world would go about defining someone. I am not a lawyer, I am not a professional writer. I have only had internet access since 2002. I am way behind on a lot of these things. I think Jillian's paper was written in 2002.

Just now, I have been thinking about how much trouble Jillian takes in her paper to invalidate the word "transsexualism" and replace it with "transsexuality". Why??? You don't think language is important? I doubt you have taken the time to read what she has written. Go look up medical terms with the suffix -ism. It's a noun ending meaning condition. There is no - medical suffix I can find that ends with -uality. The American Psychological Association defines sexuality as:

Sexuality has three stages: Desire is an interest in being sexual. Excitement is the state of arousal that sexual stimulation causes. And orgasm is sexual pleasure's peaking

That has nothing to do with transsexualism. It has to do with behavior. That is significant. That is the problem with the sex gender dichotomy that's created when gender is separated out. Transsexualism was replaced with Gender Identity Disorder in the DSM. That is significant, as well. These are not small matters.

Those in the gay and lesbian activist community want transsexualism lumped in with sexual behavior. That's why there is all the emphasis on "gender expression". You all are doing a great disservice to people who are transsexual. I am not gender variant. My gender conforms to my sex. You won't even recognize me as a lesbian, though, bi-sexual, or otherwise, only a transgender person whose gender doesn't match my sex when you don't know anything about my medical background and how it might differ from yours or even many transgender people.

Jillian relies on a lot of Butler for her arguments which by extension is relying on Foucault and Lacan. Even in challenging Lacan she accepts a lot of what he has to say. People like Foucault, Butler, Anne Fausto-Sterling and many others are looking for reasons to understand and find acceptance of their homosexuality for lack of a better word. All these words are inventions over the course of the last one hundred fifty years or so.

The way LGBT activists seek to define is actually very arrogant. You are lumping groups of people together who, in many cases, don't really have that much in common with each other. NCTE's figures are questionable. There are huge economic problems that exist with the healthcare apparatus in this country. I was in severe need of major dental work until I was in my fifties. I had a retained cuspid from my first set of teeth along with other big problems. I could have gone to my death bead with those kinds of problems if I hadn't run into a bit of good fortune, which really wasn't as simple as all that. I could have gone to my deathbed without surgery, too. I always knew I was transsexual, though, as soon as I knew what it meant and understood modern possibilities. Post transsexual people did not create economic inequality. Why are people so eager do dump those problems on post transsexual people? Answer - people just don't like the idea and especially don't like what the implications of our existence mean.

I am sure a good portion of people NCTE mentions needing legal documentation that is congruent with who they are are transsexual. Why are they being referred as "transgender"? Actually, until they have surgery there are many who would say they should because having surgery is such a significant part of sex change. But the larger question is why are post surgical people categorized as "transgender"? The obvious answer is that involves the refusal of others to acknowledge sex change and the significance of the sexual nature of transsexualism.

I didn't see the one word *here* link to the Harvard LGBTQ Policy Journal at the bottom of Jillian's post. I looked all over for a link. This has caused me some confusion but. I have put hours so far into trying to comprehend what is being put forth in this particuar post. I think the policy initiatives taken on by NCTE, on the whole look very good from a cursory reading of Ms. Tobin's article. I agree that specific surgeries required by certain governmental agencies should probably be eliminated in the ways described in the article . This whole post, however, has a lot more context than just the NCTE statement. WPATH, gender, "transgender", and "Disorders" of sex Differentiation (DSD) are referred to throughout and the article was paired in this post with Dr. Weiss' paper. I don't have any question about what NCTE is trying to accomplish or the need for to loosen up the requirements on basic documents needed to conduct a person's life on a day to day basis. I do have a lot of questions about some of the premises their reasoning is based on, which I believe will eventually come back to haunt people.

Well, I hope you don't end up banning me from Bilerico but I just finished reading Dr. Weiss', The Gender Caste System: Identity, Privacy and Heteronormativity.

I'm sorry but I strongly disagree with the basic premise, even if there is a lot of truth to what she says. I agree with many of the proposals of the NCTE proposals but definitely not the tone. And, in basing arguments for recognition of post transsexual people it acknowledges the heterosexuality of non transsexual people while invalidating the heterosexuality of post transsexual people. That is very problematic, obviously, especially considering how many are in validly recognized heterosexual marriages, regardless of how a court might argue if such marriages were challenged. This goes beyond the marriage question, too.

Trying to keep track of what is going on here is a lot of work. I all too easily understand why so many people are so upset.

A lot of good points here, Edith, and thanks for thinking of them.

Thanks for pointing me to the Australian Norrie decision that you linked to. I have to say that I agree with its conclusion that present law in Australia provides only for male and female categories. While I know that India and one or two other Asian countries have created a third sex category for purposes of passports, I would not like to see such a result in the US. I have sympathy on a theoretical level for the argument of some advocates that there is a third sex and/or a gender continuum, but I don't make that argument myself. Rather, I agree with Harper Jean Tobin that trans people should be able to change their government identification from one sex to the other upon the provision of certain medical documentation.

You inquired about my use of the term "psychological gender" in my 2001 article. "Gender" generally refers to a psychological, behavioral or social pattern known as "sex roles." "Sex role" refers to the idea that the sexes are differently situated in society, with stereotypically different psychological makeups (such as risk-taking and aggression), behaviors (such as gait, voice, and body styling) and perception by society (such as being seen as masculine or feminine). In my 2001 article, I wished to make it clear that sex and gender are distinct, in order to bolster the point that one's assigned sex at birth is not determinative of one's legal sex. I later refined this understanding to state that legal sex is based on a combination of biological and gendered attributes. This is my opinion, and thus open to dispute, though I note that my opinion is based on both legal and scientific precedents.

You also make the point "Who that is not a lawyer or clinician, or queer theory writer specializing in this stuff can keep up with it and still earn a living?" Yes indeedy. That's why I moved into college teaching. Where else can you get paid to read and write and think 24/7 about trans workplace law and policy, which is my love?

Lastly, you note "What's being done to get rid of the "GID" mischaracterizations? They do more harm than anything else." You know, I have a very ambivalent relationship with the GID diagnosis. I honestly don't believe that it is a mental illness, at least in the way that we think about other mental illnesses. At the same time, because of the hidebound thinking of the medical profession, insurance companies and society in general, it serves a useful purpose for many people. Those who have insurance can sometimes get hormones and even surgery paid for. But many people are also denied medical services because of the existence of a GID diagnosis. There are insurance exclusions based on the diagnosis of "transsexualism." There are also healthcare professionals who interpret the GID criteria too strictly, as if it were written in stone, instead of the judgment of a committee of experts who might be right and might be wrong. So it's a mixed bag. I'm not ready to come out against the GID diagnosis, though I have many, many questions about it.

Hi Dr,

I wasn't really trying to make much of a point by linking to that Australian decision. From what I understand there were a number of people who were able to have non gendered passports made out for them. After this decision, there is some concern that they will lose the status they have had for over a decade. Some people are very upset about this situation.

I don't really follow all this that well. I know there are activists working very hard for recognition of intersex and there are conflicts between them and others who have been accused of appropriating intersex. As far as I am concerned it is another binary, a binary within a binary with poles at either end. Some intersex people use transgender as a dumping ground. Inevitably, I find the implications ranging from dismissive to downright ugly.

Anyway, if I have the time, I will try to read through the Australian Sex Files which a lot of the fuss is about:

http://www.hreoc.gov.au/genderdiversity/sex_files2009.html

You've probably come across this already.

All this has been going on at the same time various discussions have been occurring here. Now we're on to the Illinois situation. I was born in Tennessee. I listen to accusations about being afraid of being different. I am different - no way out of that. I just find being different in a "not really female" way to be a very large impediment. Things flow much differently with strangers than they do with people who know my background. Then there is my body. It makes a difference, a rather large one, a very positive one. I don't think that should be treated dismissively. I watched a YouTube of Ms.Tobin yesterday, by the way. She came across very well, much differently than the tone of her piece in the policy journal. As I said before, I do agree with most of what she and NCTE are trying to accomplish but the tone taken toward physical treatments ends up being very dismissive which I think sends the wrong message and will inevitably end up in having a lot of people misunderstood.

Thanks Jillian. It was a good read.

I have no objection to any terminology in the article.
Good idea - that being the policies adopted by Massachusetts, Nevada, New Mexico, New Jersey, Ohio, Pennsylvania, and Washington State.

Continuing to allow states under "Recent federal regulations pursuant to the REAL ID Act of 2005 impose numerous mandates on motor vehicle agencies but expressly leave them free to determine their own policies on gender change", keeps in place the idea of local control for our republic form of government.

There will always be a patchwork of identification in our country, unless you want a heavy handed federal government deciding and tracking national identification.

I got past all the Brown and Wilchins. I reread the Butler stuff. The J L Austin reference was nice to see when we get to an explanation of Butler's use of "performative". It is now 12:05. I don't have any shirts to iron for any handsome strapping Cary Grant type guy but we don't have a dishwasher here except for me and I just came across a quote in one of your footnotes by Hasbro Children's Hospital urologist, Tony Caldemone. There is a lot to this story. I have been tracking it most of my life. If you only knew. A hint, though. It isn't about sex. It isn't about gender. It's about both and it is pretty freakin' complicated.

You know Edith it is now 3:09 am for me and well I just sort of had an epifany. Yes in my earlier post I was saying that I saw the T as the LGBT dumping ground but I also see it as something else now. Its a tranny chasers wet dream and that is what I think is being sold. ITS pure junk science meant to legitimize a gay mans fantasy that can't admit he's gay.Take a legimate medical condition pull it into the LGB and make it look like you care all the while tearing away at it and remodelling it to suit your needs.Now take it to the next level a fully functioning effeminate gay male goes into a doctor gets a letter and presto chango they're now a woman with a fully functioning penis. It gets better because they now have a female birth certificate another "straight man" wink wink can now marry "her" legally. But you can't call it gay marriage because he's a she.Desperate times call for desperate measures.How many states have banned gay marriage? I guess they won't be happy until its 50 and no one but the religious right can get married. Another reason why a divorce in order with both the word transgender and the LGB.You know I used to think I supported gay marriage but now I'm not so sure I do.

When you have "epiphanies" at 3 am it's a good chance that you actually just need to get some sleep.

Actually SAS how about instead of thinking its okay to ask me how its not damaging to me why don't you ask the LGBT and WPATH to explain how it is their right to force any person with GID into the LGBT and how that association doesn't help to support the myth we're gay or damages us politically or removes our rights to freedom of association? I'm curious I want to here what they have say about all this.I honestly feel that neither group truly has my best interest at heart and that they are so intertwined it creates a conflict of interest one I'm very serious about possibly exploring thru various channels.

Well, since you're the one talking about persuing legal action against them, the burden of proof will be on you in any court. Big hurdles you will face will include proving that your rights of freedom of association were infringed, considering that term has specific meaning that does not match up with what you're saying here. You'll also have to prove it's constitutionally legal for the courts to force people to not speak about transsexuals in a way you disapprove of, considering we also have that pesky first amendment. While you're at it, you'll also be asked how these organizations are responsible for the idea that we straight transsexuals are gay, considering that idea is decades old and was even part of professional psychiatric ideas on the subject. Attorneys aren't going to hesitate to shred the WBT/HBS just-so stories in court.

I have a legal question for you Jillian since NCTE, NGLTF, WPATH and the aclu are all so heavily intertwined. Is it legal for them to create such an environment that is impossible for a person born with a medical condition to be dissociated from the political,medical,and social stigma such a forced attachment to the word transgender creates? I mean seriously the word transgender is a gay community buzzword meant to be an umbrella term. It is absent from the DSM 4 and I'd be willing to bet it fails to make the DSM5.Transgender identity is nothing more than a convenient LGBT fictional hypothesis meant to be a dumping grounds for it members that aren't capable of selling the oh but really as gay people were just like you crap.

I think someone would have to show that the word "transgender" actually creates any political, medical, or social stigma first.

Amym, you asked: "Is it legal for them to create such an environment that is impossible for a person born with a medical condition to be dissociated from the political,medical,and social stigma such a forced attachment to the word transgender creates?" There is no law against their advocacy of a position regarding the makeup of the "transgender" community. If there were a law against it, I think such a law would fall afoul of the First Amendment freedom of speech.

Thank you for the column and the link to Ms. Tobin's complete piece. I found it very informative and thought provoking. Plus, there were other articles on the Harvard LGBTQ Journal equally informative, i.e. "Born This Way"? Briefly, it seems there should be a more 'humane', 'sensitive' way to determine gender markers on I.D. docs. 1 in 5 Trans people get surgery. A discrepancy between a 'M' or 'F'and appearance could be a matter of life and death! While some states are modernizing their laws, others; Heartland and South are light years behind. We need the Federal Govt. to step up and standardize laws and protections for the LGBTQ community. But, that's another story!

Sincerely,

I am grateful for everyone who came before me who made it easier for me to find the clinicians able to direct me to the medical providers I needed and helped me get through the legal maze to get my legal documentation changed. I am very glad, however, I wasn't able to access the internet in the nineties and that I never read Mildred Brown. My perspective is so different. There really needs to be a lot of improvement on the endocrinological end. I am grateful to the very kind primary care M D I see now, who also happens to be a gay man but the endocrinologists I had were very bad and not so bad. Those things get so lost with all the emphasis on gender. I, actually, think gender expression suffers with all the emphasis on gender which seems only to render a transsexual person inauthentic or, worse, a caricature when gender becomes the basis of understanding of people who are transsexual. It isn't the abstract process of "sexing" that's the problem, it's the fact that the nature of a person's gametes do not solely determine the nature of a person's sex. That fact, however, does not make sex abstract.

Interesting view on medical privacy.