Guest Blogger

Beth Elliott's Rebuttal of the Brennan-Hungerford Letter

Filed By Guest Blogger | August 26, 2011 3:30 PM | comments

Filed in: The Movement, Transgender & Intersex
Tags: anti-discrimination, Beth Elliott, Brennan-Hungerford letter, gender identity, trans, women's rights

Editors' Note: Guest blogger Beth Elliott is a San Francisco Bay Area writer, musician and lesbian activist. The first transsexual woman to transition to be an out lesbian, she served a year's term as Vice President of the San Francisco Chapter of the Daughters of Bilitis (1971-72), but was purged from the organization three months later. She was one of the organizers of the April 1973 West Coast Lesbian Beth-Elliott.jpgConference at UCLA, which radical lesbian separatists and "political lesbians" disrupted over trans inclusion (specifically, hers). An original member of the Alice B. Toklas Memorial Democratic Club (representing DOB at Del Martin's request), and a member of the Board of Directors of the California Committee for Sexual Law Reform (which lobbied successfully for repeal of California's "sodomy" laws), she was blacklisted for a decade. Her latest project is a new edition of her 1996 autobiography, Mirrors - Portrait of a Lesbian Transsexual (attributed to Geri Nettick with Beth Elliott).

Ms. Elliott has written a rebuttal to the Brennan-Hungerford submission to the United Nations Entity for Gender Equality and the Empowerment of Women. It is after the break.

Honorable Commissioners:

I write in regard to the CSW Communications Procedure submission of 1 August by Cathy Brennan and Elizabeth Hungerford alleging that gender identity anti-discrimination statutes in the United States threaten to violate women's rights. Specifically, I write in response and rebuttal to those allegations.

Ms. Brennan and Ms. Hungerford's submission is not an adequate submission. It does not at all comply with the Communications Procedure Guidelines for identification and documentation of actual incidents of human rights violations, and should be rejected on those grounds alone.

Moreover, the Brennan-Hungerford submission is inaccurate and misleading, and an abuse of both national judicial procedure and global procedures for effective petition for redress of actual rights viola­tions. To wit:

  1. Ms. Brennan and Ms. Hungerford are not reporting actual harm, but requesting global action based on a mere hypothesis: that male-bodied people claiming to be women on the basis of self-perceived gender identity could pose physical and emotional threats to women in sex-segregated public facilities such as bathhouses and restroom. They neglect to acknowledge that there means in place to prevent and/or punish this.
  2. With regards to bathhouses and other venues in which public nudity is usual and expected, remedies are already available at the local and state level: judicial interpretation of the statutes cited in the submission, "under color of" criminal sentencing enhancements of the kind designed as a deterrent measure, and (already existing) common-sense accommodations to legitimate sensibilities.
    1. With regards to restrooms, Brennan and Hungerford have failed to avail themselves and the potential victims for whom they claim to advocate of the generous U.S. judicial remedies for "hostile environment sexual har­ass­ment." The hypothetical harm from failure to police restroom users for body-socially presented gender congruence likely does not rise to the level of actionable hostile environment sexual harassment.
    2. By claiming the potential harm is related to women's "reproductive vulner­ability," Brennan and Hungerford carve out an artificial and politically defined subgroup of potential victims from the larger population of actual potential victims. Specifically, they limit the potential human rights victims to that class of women who are cissexual women of reproductive age with healthy reproductive tracts, and state the potential harm is pregnancy resulting from rape when it might be as likely to be forced oral copulation or other non-reproductive sexual assault.
  3. Brennan and Hungerford cite no case law that interprets the state statutes they wish preempted by supranational means, and present hypothetical controversies that are not ripe for U.S. appellate review, much less international review. Thus, they present no demonstrable failures to protect human rights which might be appropriate for investigation by a global body.

For these reasons, upon which I shall expand below, I respectfully request that Ms. Brennan and Ms. Hungerford's submission be rejected for insufficiency as a communication to the Commission, and for failure to state an actual controversy or to give credible evidence of actual or likely human rights violations related to the statutes of which they complain.

My qualifications for addressing the Commission for the Status of Women on this matter are as follows:

Daughters of Bilitis (the first lesbian rights organization, founded in 1955) ("DOB"), Vice President, San Francisco Chapter, 1971-72. Representing DOB (at the request of co-founder Del Martin), founding member of the Alice B. Toklas Memorial Democratic Club, the first gay/ lesbian political party club in the U.S.; represented Alice at the California Council of Democratic Clubs 1973 convention, Fresno, California. Alternate delegate for Representative Shirley Chisholm, California Democratic Party presidential primary election, June 1972. Community-elected member of the Board of Directors of the California Committee for Sexual Law reform, 1972-75 (successfully lobbied for repeal of California state statutes outlawing most forms of sexual behavior between consenting adults). Successful arbitration determining that sex-reassignment surgery ("SRS") was a physically necessary, non-cosmetic treatment for gender dysphoria syndrome, over the objections of a health insurer, from the Santa Clara County (California) Medical Society, with repre­sentation by attorney Sarita Waite, 1975. Workshop presentation on actual versus propagandized experience with HIV transmission among Women who have Sex with Women, National Organization for Women annual convention, San Francisco, California 1990. Author, Mirrors - Portrait of a Lesbian Transsexual (as myself and as the pseudonymous Geri Nettick), 1995 (Spectrum Press), 1996 (Rhinoceros Books), and 2011 edition with new material (CreateSpace, with distribution through CreateSpace and Amazon). Numerous publication credits with gay, lesbian and transsexual rights-oriented publications, including a weekly column for the San Francisco Bay Area Reporter from 1995-98.

Deficiencies of the Brennan-Hungerford Submission:

  1. Potential versus actual harm
    1. Bathing and dressing facilities: remedies already in place; actual harm not likely

      Brennan and Hungerford claim an assertion of female gender identity that would entitle a person making such an assertion to use women's bathing facilities though not female-bodied "does not require any objective proof." While the possibility of legal sanction for access by such persons is highly doubtful (as will be discussed shortly), this assertion of no requirement of proof of identity is inaccurate. Brennan and Hungerford themselves cite, in their footnote xviii, Connecticut General Statutes § 46a-63 (effective October 1, 2011), which requires a demonstration of "gender-related identity ... shown by evidence including, but not limited to, medical history, care or treatment of the gender-related identity ... or any other evidence that the gender-related identity is ... not being asserted for an improper purpose."

      Further, the gender identity-inclusive Employment Non-Discrimination Act ("ENDA") intro­duced into the current session of the U.S. Congress contains the following provision:

      "Section 8(a)(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later."

      Passage and enactment of this Act would make the Brennan-Hungerford submission moot.

      As a practical matter, sexual assault or sexual harassment committed in a bathroom or dressing facility would be prima facie evidence that a body-discordant claim of gender identity made to access such facility was fraudulent. Perpetration of a fraud in order to commit a crime is already itself a crime (and is actionable in a civil court). Were this not enough to deter predators fraudulently claiming to be transgender to seek access to these facilities, the common legislative practice of enacting sentencing enhancements as a further deterrent and preventive measure. These mechanisms already protect women's civil right to female bodied-only bathing and dressing facilities.

      Meanwhile, there is already a history of these concerns being addressed both governmentally and privately.

      In the 1960s, a project of the San Francisco Police Department's Community
      Relations Unit, the Center for Special Problems, created the first form of evidence of "medical history, care or treatment of the gender-related identity." It was a card, signed by a physician, which evidenced such care as a defense against arrest for impersonation, and a request for considerate treatment in case of arrest on other grounds. Similar documentation is routinely provided gender clients by physicians and psychologists in order for those clients to arrange their life affairs so they can live in the chosen gender prior to SRS, per established medical care guidelines.

      There are also instances of bathhouse privacy for female-bodied women being protected by private arrangements. By a voluntary agreement in 2007, transgender activists acting in coordination with the Lesbian Avengers dropped plans to file a complaint with the San Francisco Human Rights Commission against Osento, a small Japanese-style bath and sauna establishment for women where public nudity was perforce the rule. Osento had a "trans-inclusive" policy in that it welcomed for patronage female-bodied women regardless of whether born so or made so by reconstructive surgery. The potential complainants wanted access on the grounds of an asserted identity as a woman, but eventually relented and accepted the inclusionary policy in place. (I had prepared, and presented to the owner of Osento, an amicus brief on her behalf that I was willing to file with the Human Rights Commission should it accept a complaint.)

      Brennan and Hungerford have not provided this Commission with any instances of findings of discrimination against any establishment barring male-bodied individuals from women's facilities where public nudity necessarily is the customary environment. U.S. jurisprudence makes such a finding extremely unlikely. The standards for adjudicating a claim of disparate treatment discrimination are the burden (of proof)-shifting requirements outline in the Supreme Court employment law decision McDonnell Douglas v. Green, 411 U.S. 792 (1973). Upon the presentation of facts adequate to support a claim of discrimination, the burden of proof shifts to the party accused of unlawful discrimination. Such party may rebut the claim by articulating a legitimate, non-discriminatory reason for the allegedly discriminatory act. Upon an acceptable rebuttal, the burden shifts back to the complainant to prove that this reason is merely a pretext for behavior with a discriminatory motive.

      The privacy and comfort needs underlying single-sex bathing and dressing facilities (meaning same genital configuration and not same gender identity) are so clearly understandable to reasonable and prudent persons ("reasonable and prudent person" being another standard concept in U.S. jurisprudence) that the likelihood of a court ordering access to women's bathing and dressing facilities by male-bodied persons is negligible. (And, should ENDA be enacted, no such order would be possible.) The potential harm from anti-discrimination laws that Brennan and Hungerford claim requires Commission investigation has neither come to pass, nor is likely to come to pass.

      For these reasons, among others, Brennan and Hungerford should withdraw their submission or, alternatively, this Commission should reject it.

    2. Restrooms: remedies already in place; actual harm not likely

      As regards restroom use, the legal issues are not the same as for bathing and dressing venues. Restrooms for women customarily have toilets (of whatever kind) in individual stalls that prevent involuntary viewing and inadvertent exposure of genitals. There is available, under U.S. juris­prudence, a remedy for "hostile environment sex discrimination" relating to sexual harass­ment (which constitutes sex discrimination in employment legal actions). To paraphrase the standards set out in the Supreme Court decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 47 (1986), a person taking legal action for alleged hostile environment sex dis­crim­ination must be a member of a protected group (such as women), and subject to and adversely affected by harassment based on her being a member of the protected group. The harassment must be so severe and pervasive as to affect the victim's ability to make use of the facilities in question (in Meritor and its progeny, to be employed in that workplace). Those responsible for keeping the environment harassment- and discrimination-free are legally liable if they knew or should have known of the harassment but failed to take action to stop or prevent it.

      Brennan and Hungerford appear to suggest that cross-body configuration restroom use justified by gender identity anti-discrimination statutes would constitute hostile environment sex dis­crimination. For this actually to be the case, however, there is a further legal standard that must be met, per the Supreme Court decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The objectionable environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so." A reasonable and prudent person can certainly find objectionable and unreasonable women's restroom use by casual or "lifestyle" crossdressers, and especially by opportunistic others as a pretext for voyeurism or worse. The likelihood of facility management being unresponsive to complaints about such use is slight, given the potential for legal liability in the case of harm and the great potential for loss of patronage in the case of offense.

      In the case of cross-body configuration restroom use by (full-time) transgender individuals, and especially by transgender and pre-operative transsexual individuals with documentation of appropriately supervised gender treatment, there is a serious question of whether their use of a toilet in an enclosed stall in a women's restroom, and washing and grooming in its common area, would create an actual hostile environment. It is doubtful such usage creates an environment that rises anywhere near the standards for judicial consideration established in Meritor and Faragher. In this regard, Brennan and Hungerford fail to document either actual harm, or a likelihood of actual harm that might be excused or enabled by gender identity anti-discrimination statutes.

      There is, further, a history of effective private arrangements that have made other spaces non-threatening for female-bodied women.

      In 1982, a participant in a women's "rap group" (discussion group) at the San Francisco Bisexual Center complained of participation by a male-bodied individual generally accepted in that community as a woman, based on her living full-time as a woman and her individual reputation. An agreement was made at that instance that the matter could be addressed at the next Center Board meeting. At that meeting, the Board adopted a policy that the women's rap groups could be attended by anyone living consistently as a woman full-time and intending to continue to do so. The Board rejected a request by a cross-dresser to be allowed to attend on the days on which he "felt like a woman."

      In the 1990s, the Power Surge alternative sexuality conference for women in Seattle, Washington (held twice) made the daytime workshops accessible to all women on the basis of gender identity while restricting optional night-time "play" events at which nudity was likely to occur to the female-bodied (in this case, not in possession of a physical penis).

      For these reasons, among others, Brennan and Hungerford should withdraw their submission or, alternatively, this Commission should reject it.

  2. Relating the potential harm to reproductive capability denies human rights protection to a substantial segment of the potential victim class.

    Brennan and Hungerford claim there is a need for the exclusion of transgender women (i.e., non- or not-yet-female-bodied women) from "sex segregated facilities for a number of reasons, chief among them the documented frequency of male sexual violence against females and the uniquely female consequence of unwanted impregnation resulting from this relatively common form of violence" (emphasis added). Further, they seek international vitiation of gender identity anti-discrimination laws as "protection for the potential harm that females may experience because of our reproductive vulnerability."

    Sexual assault is no respecter of reproductive capability. Pre-pubescent girls get raped. Post-menopausal women get raped. Women incapable of conception because of surgical intervention or underlying physical conditions get raped. Transsexual and transgender women get raped. Moreover, not all rape is vaginal penetration: forced oral or anal copulation is rape that cannot possibly have anything to do with reproduction.

    Brennan and Hungerford frame the potential harm to women in terms of possible unwanted pregnancy as though they must do so in order to fit some category of harm that would trigger this Commission's attention. In doing so, they fail to address potential harm to women, by carving out an elite class of potential victims based on fertility. This is not an action reasonably framed to address human rights violations against women.

    Are the targets of this framing of the issue actually female-bodied (i.e., post-operative) trans­sexual women, in order to obtain by stealth some kind of international determination that they are not or will never be women, and should not be accorded legal status, recognition and rights as women? The dis­claimer that neither "individual males" nor "transgender or transsexual women are any more likely to harm females" certainly appears to propound such a distinction. Moreover, in their concluding paragraph, they draw a distinction between "females" and "transgender and trans­sexual people."

    Regardless of whether such a covert agenda is in play in the Brennan-Hungerford submission, there is a cruel irony to its complaint of potential harm to physically normal and fertile female-bodied women, given the great likelihood that transgender and pre-operative trans­sexual women who are raped will be murdered as well. Rapists denied the opportunity for forced vaginal penetration because of a contrary physical structure often act as though they are the victims of male-on-male rape, and their response is often violent. In fact, the murder of transgender women is not always preceded by or done in conjunction with an act of rape (see, e.g., the Wikipedia "List of unlawfully killed transgender people").

    The discrimination that gender identity anti-discrimination statutes are designed to alleviate in­cludes discrimination in hiring. Pre-operative transsexuals in particular have a daunting poverty rate, despite the derogatory stereotype of well-to-do middle-aged men making a lifestyle choice to transition. Those who commence transition as employed adults can lose their jobs and have trouble obtaining new jobs. Teenagers not yet employed who exhibit cross-gender behavior or attempt beginning stages of transition are frequently expelled by their parents or run away because of impending domestic violence. There are many undocumented immigrants in the U.S. who fled their homes because of impending or actual gender identity-related violence. All of these risk homelessness and becoming part of the street prostitution population, as do the simply transgender who have become unemployed and poor through similar dynamics. Street prostitution means negotiating sex with a series of strange men and therefore heightened exposure to the risk of sexual violence, physical assault and injury, and murder.

    It can be left to Brennan and Hungerford whether these are crimes against females or not; they are certainly crimes against individuals who are of the victim class of females because they are perceived to be such at the commencement of activities that end in acts of violence. At the very least, the consequences for these victims is far more extreme than the possible inconvenience of sitting in a closed bathroom stall adjacent to another closed stall in which the person sitting on the toilet is not fully female-bodied.

    At the very least, in terms of potential victims who are female and were assigned as female at birth based on genital morphology, Brennan and Hungerford's submission addresses only the potential violation of human rights for some of these women, while purporting to address a violation of the human rights for women in general. For this reason, their submission is fatally deficient, and for this reason, among others, Brennan and Hungerford should withdraw their submission or, alternatively, this Commission should reject it.

  3. Implementation of statutes not yet determined in U.S. courts, and therefore no actual controversy for an international body to investigate.

    In giving a brief overview of U.S. law that may likely frame the adjudication of these state statutes and their implementation, I have demonstrated a distinct possibility that the courts will not allow the potential harms over which Brennan and Hungerford express concern to come to pass. These are matters with a strong likelihood of being litigated, with the initial decisions appealed at higher and higher levels, possibly even before the U.S. Supreme Court. Courts of Appeal, whether state or federal, cannot reach down and rule on matters on which there is no record on which an appeal can be based. They have the option to let lower court decisions stand, and they may decide to adjudicate portions of a lower court finding; they may also decline to review a lower court decision and let it stand. Laws enacted by a legislature may conflict with other laws, and this is the process by which contradictions are sorted out and laws are determined to conform to the overall Constitutional framework or not. In short, laws are not final until any controversies around their meaning, application and implementation have been sorted out through a process involving layers of judicial review.

    Regarding the state statutes of which Brennan and Hungerford complained, there is insufficient record for appeal to the highest levels of U.S. courts for determination. Until that process has worked itself out, possibly with legislative adjustments to the laws in response to how the courts interpret them, the effects of these statutes cannot and will not be known. If they violate human rights, there is likelihood they will not survive the appeals process in U.S. courts. Nobody will know whether these statutes as implemented will violate human rights until the law regarding them is relatively settled. They are nowhere near "ripe" for appeal to an external body.

    I have brought up local private settlements of related disputes for an important reason: The closer adjudication is to the local people immediately affected, the more likely positive results protecting human rights will occur. For one thing, agreements arrived at by the people involved and affected are agreements of which they are more likely to take ownership. The more local the process, even a judicial process, the more likely solutions are to be crafted in such a way that they are workable, on a lasting basis, in the context of the indigenous culture and mores where they will be in effect. The more remote and the more levels above the body handing down the determination of law, the less likely the people affected by it will feel compelled to comply with them.

    It is simply premature in terms of judicial appeal to resort to international adjudication of this matter, both in terms of procedure and in terms of a lasting resolution satisfactory to the submitters here as well as to the individuals who would be relying on these anti-discrimination statutes. UN involvement at this point in the adjudication of the meaning and effect of these statutes could be counterproductive in terms of ensuring human rights.

    And, essentially, until U.S. courts have adjudicated these statutes and the law is reasonably well settled, there is no controversy for the U.N. to review. Again, the harm is potential and may not come to pass, and the law may eventually take shape in such a way that it does not enable human rights violations.

    For these reasons, among others, the Brennan and Hungerford petition is premature and should be withdrawn, or, alternatively, this Commission should reject it.

Almost as an aside, before closing, there are some quirks of phrasing in the Brennan-Hungerford submission that give me pause. One, of course, is the distinction in their concluding paragraph between "females" and "transgender and trans­sexual people." Another is the inclusion, in their first-page listing of sex segregated places that "the proliferation of legislation designed to protect 'gender identity' and 'gender expression' [purportedly] undermines," of "female-only clubs" and the undefined "other spaces designated as 'female-only.'" It is difficult to imagine the kinds of injurious acts Brennan and Hungerford fear could take place in bathing and dressing facilities and in bathrooms taking place on, say, a dance floor or in, say, a discussion group.

Then there is the statement, "As lesbians, we are concerned about the impact of this legislation on our community, and our community's ability to meet free from male influence and involvement." In the context of this petition, the only possible interpretation of this statement is that what Brennan and Hungerford define as the lesbian community is one free of post-operative male-to-female transsexuals on the belief they are not women and therefore cannot be lesbians.

That leads to the conclusion that Brennan and Hungerford's concern is not for lesbians per se, but for that subset of lesbians and the lesbian community that identifies as lesbian separatists--a kind of fundamentalist movement within the lesbian community and rights movement. It rejects the definition of "lesbian" put forth by movement founders Del Martin and Phyllis Lyon (in their 1972 book Lesbian/Woman) about a primary physical, romantic and or spiritual attraction to other women whether or not overtly expressed, and defines "lesbian" in terms of non-involvement with men (even relatives) or maleness (real or perceived), including no bisexuality and nobody but cissexual women assigned female at birth.

This subset of lesbians, ironically, has not been satisfied with "separating" itself from the larger lesbian community and building its own institutions, but has for the past four decades asserted a hegemonic interest in any institution defined by those involved as "lesbian," including the lesbian rights movement and the larger community itself. The appendix to the 2011 edition of Mirrors is a new critical essay that describes the disruption of the 1973 West Coast Lesbian Conference at the University of Los Angeles by a covert coalition of lesbian separatists and "political" lesbians (women who may be in fact heterosexual but who choose "lesbian" as a feminist identity label oppositional to men), meant to impose these political/lifestyle restrictions upon a politically independent California lesbian community that was in the process of achieving critical mass for a self-sustaining existence beyond the political control of either the Women's Liberation Movement or the radical lesbians who came out of the New Left.

It is entirely possible I am being overly apprehensive. On the other hand, it would not be prudent to raise this possibility in the event that what we have in the Brennan-Hungerford petition is an attempt to leverage global human rights mechanisms into enforcement of separatist hegemony on the larger lesbian community and movement in the United States. For this reason, I would ask that the Commission give scrutiny to this possibility.

In conclusion, I thank the Commission for its kind attention to this rebuttal of the Brennan-Hungerford petition, and respectfully request that said petition be denied.

Yours sincerely,


X Beth Elliott

(Also guest posted at Dented Blue Mercedes)

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Points well made and thank you for standing up to the bullies.

Wow. I'm guessing that people don't realize the significance of this response. In 1973, protest of Beth's participation in the West Coast Lesbian Conference and of her work done with Daughters of Bilitis is sort of seen as the beginning of womyn-born-womyn -related exclusion. So there is a historic context, here.

Beth, thank you for a thorough, detailed rebuttal. To me, there is a stark difference between the first essay's hypothesized harm, and Beth's inclusion here of several non-controversial, real-world resolutions.

Funny, I have been reading Bev Jo's account of this (a small part of one of her million word ramblings), didn't know who 'Beth' was, now I do.

So have you been to 'Sex Matters', Undercover Punk/Elizabeth Hungerford's site on the letter?

This whole thing has been a real learning experience for me, exploring the sites of the ppl involved, esp the comments to the posts. Quite interesting!

It should also be noted that the original Brennan-Hungerford letter has been picked up by a news aggregator based in Italy, IPS-Inter Press Service, which provides articles to news agencies in Europe, Africa, the Asia-Pacific and Latin America. So the reach of this letter has spread, and this response is both necessary and important.

As a member of the Australian National University's panel of experts assisting the Australian Capital Territory Law Reform Council on the current program to overhaul legislation regarding Intersex and Trans people, I had to bring the Hungerford/Brennan submission to the council's attention, without comment.

My role is expert, not advocate. I had a duty to do so, to make sure all voices are heard, not just ones I agree with. It was a test of my integrity, but a relatively easy one to pass, even though I felt physically sick, angry and upset doing it.

I'll be extremely glad to bring this submission too to the council's attention. That too is my duty, this time not an unpleasant one.

Thanks, Beth.

I'm curious...what did they make of it? Mostly I am interested in what they thought of it as a document, a pice of communication, not so much their policy take. The more I read it, and the more I read about it (mostly comments from Brennan and Hungersford, and their community of rad fems/sep lesbians), the more self-contradictory it seems, and the more confusing the authors' statements are. They seem to be trying to carve out a very tightly defined case, and don't seem to really believe some of the things they say (the trans-supportive ones)--they say something positive and semi-accepting, then either take it back, or confuse what they said to the point they don't seem to be saying anything. It seems to me that they are skirting the edge of what they really believe, and really want to say, but don't quite go there. I dunno, maybe just the way lawyers write?

The ACT LRC is composed of (mainly) Human Rights lawyers from the ANU. In the context of discussing likely sources of opposition to reform, they had been told that there was a thread in the LGB movement that was overtly transphobic, but hadn't given that idea much credence. Frankly, the idea appeared nonsensical to them, a paranoid fantasy by trans groups made over-sensitive by longstanding blatant discrimination. None had ever experienced it (not being trans or intersex), seen it, or heard about it.

I gave them a few pointers, to the Erinyes collective' submission last year, to Sheila Jefferies, and some choice quotes from books used to teach Feminist theory at the ANU. Gyn/Ecology for example.

I'm unable to discuss details of what goes on internally - for one thing, I don't know them, I'm an advisor, not a decision-maker, and what I have been told officially has also been in confidence.

The words "shocked" and "appalled" come to mind though. Just when they thought they had bi-partisan support, from pretty much everyone including mainstream churches and all three major political parties. This pits them against some of their major clientele, who they have long-standing relationships with.

What a beautiful obloquy to separatist hucksterism!

There's a reason hate-groups use the same arguments Brennan-Hungerford used:

Apparently when you don't have logic on your side, you resort to fear.

there are some quirks of phrasing in the Brennan-Hungerford submission that give me pause. One, of course, is the distinction in their concluding paragraph between "females" and "transgender and trans­sexual people."

Is their distinction much different than the distinction made between assigned at birth people and an "employee (who) has undergone or is undergoing gender transition"?

After reading Dr. Weiss' post about the situation in Philadelphia one has to wonder about what a gender transition is to begin with. What are the implications involved in an undefined "gender transition"? One should note Dr. Weiss makes a point regarding anatomy but not physiology which is often an issue that is sidestepped, implying changes to anatomy that affect physiology carry no more weight than those that don't , ultimately implying that the only factor to be considered of importance is gender identity and that all anatomical changes are simply cosmetic.

Much of what you say seems to go against the grain of what Dr. Weiss asserts straightforwardly or implies by omission. I am heartened by the fact that you are on record as successfully lobbying for

"arbitration determining that sex-reassignment surgery ("SRS") was a physically necessary, non-cosmetic treatment for gender dysphoria syndrome, over the objections of a health insurer"

We know from the Philadelphia Daily News Story that:

Inmates are housed by "anatomical gender" regardless of how they identify . . . Exceptions are made if an inmate shows "legal and clinical" proof of gender transition, or if officials fear that an inmate's gender identity will be disruptive.

It seems inmates are housed by anatomical gender in most jurisdictions and some jurisdictions also make exceptions based on "gender transition" or "gender identity". I have never heard anyone speak of Tennessee, Idaho, and Ohio where change of sex markers are not allowed on I D documents, though. I don't recall reading about this either one way or another in those jurisdictions. Regardless, I do not see what would keep a jurisdiction from singling out even people with acquired primary sex characteristics, distinguishing from , possibly, in some instances, maybe even as institutional policy, and segregating them from those of the sex they have been reassigned to; as the "gender identity-inclusive Employment Non-Discrimination Act ("ENDA") intro­duced into the current session of the U.S. Congress" "Section 8(a)(3) CERTAIN SHARED FACILITIES does. I don't see why the distinctions this part of ENDA makes has to be written into the law. I think segregation of inmate populations are only the most extreme impact these proposed distinctions might have but I think they could possibly have implications for the aspects of law abiding people as well. Separate but equal segregation has a long history with a track record evidencing the fact that separate never is equal. The fact that the certain shared facilities may make some of Brennan and Hungerford's concern moot is of little comfort to me.

As to whether or not post operative post transsexual people can be housed in a facility opposite the sex they have been reassigned, I think the answer is most definitely, yes. From the Tennessee Sheriff's Handbook:

Nevertheless, the Eighth Amendment does not require the separate placement of inmates based on sex. Galvan v. Carothers, 855 F.Supp. 285 (D. Alaska 1994) (The placement of a female inmate in an all-male prison wing did not constitute cruel and unusual punishment.); Dimarco v. Wyoming Department of Corrections, 300 F.Supp.2d 1183, 1192-1194 (D. Wyo. 2004) (The placement of an intersexual inmate, who was of alleged female gender but was anatomically situated as a male due to the presence of a penis, in segregated confinement for a period of 438 days, with concomitant severely limited privileges, solely because of the condition and status of ambiguous gender was not a violation of the Eighth Amendment prohibition against cruel and unusual punishment where the safety of the inmate and other inmates was secured by placing the inmate in administrative segregation, and the inmate was provided the basic necessities of food, shelter, clothing and medical treatment.); Lucrecia v. Samples, 1995 WL 630016 (N.D. Cal. 1995) (The transfer of a transsexual inmate to an all-male facility and her housing in an all-male cell did not violate the due process clause where the inmate failed to demonstrate the infringement of a liberty interest.).

I agree with you that Brennan and Hundgerford's objections to existing legislation regarding gender identity and gender expression should have been brought up in the lower courts in the jurisdictions where these statutes are in effect, rather than the U N. There have been few if any challenges to these laws. I do share their concern for the fact that so much significance is given to the concept of gender identity and what the concept implies in terms of conformity and the way activists use the concept to render anatomy and physiology less significant. As for the statutes, themselves, however, I think Brennan and Hungerford's objections are unfounded with very little, if any, evidence to support what they see as danger posed to women. I agree with most of what you say but I have reservations regarding this statement of yours:

The closer adjudication is to the local people immediately affected, the more likely positive results protecting human rights will occur.

I think your perspective is very skewed as a result of your being from the Bay Area of California. I do not think this is true in many parts of the country. Federal intervention was necessary to enact and enforce civil rights laws in the South. In the U K, ECHR intervention was necessary to change gender recognition laws there which, in my opinion, because of the emphasis on gender identity, was largely unsuccessful. Then there is the recent case of Lydia Foy in Ireland where nothing would have happened without ECHR intervention. Still, in the case of Brennan and Hungerford's submission to the Commission for the Status of Women, in spite of any reservations to what you have written, I hope the U N considers your analysis to be far more persuasive than theirs.

I have read that in the various counties surrounding San Francisco, sex/gender segregation is piecemeal with a strong push to segregate inmates on the basis of gender identity, rather than genital anatomy. It seems there are jurisdictions where there are populations which are currently segregated as "vulnerable male populations" that include transgender and pre-operative transsexual inmates w/ male genitalia housed with transsexual>male and gay male inmates. I think Marin County segregates by genital anatomy. I think things vary drastically throughout the country. I think, policies everywhere are subject to change depending on the political climates of various jurisdictions. I don't think we need encouragement from a federal ENDA to render anatomy and physiology to the point where has such little significance that it would place people who thought they had been legally reassigned a sex opposite to the one they were assigned at birth only to find they are regarded by the state a gender that should be segregated in a third sex facility. If the separate but equal provision in ENDA is written into the law regarding employment discrimination, I cannot imagine it will not have other social implications, as well.

The concepts of gender identity and gender expression have been introduced into the official documents of several United Nations bodies in the past two years. In December 2009 the UN General Assembly voted against the inclusion of sexual orientation and gender identity (sogi) as specific grounds of discrimination against the recommendation of the Economic and Social Council. Several Universal Periodic Review (UPR) deliberations, however, have made references to discrimination on the basis of gender identity with regard to trans individuals. In June the UN Human Rights Council voted in favor of a resolution which include sogi as grounds of discrimination.
The member states of the Council of Europe initialed the Convention on preventing and combating violence against women and domestic violence on 11 May 2011. Specifically, Article 3 and Article 4 read:
Article 3 – Definitions
For the purpose of this Convention:
a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life;
b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim;
c “gender” shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men;
d “gender-based violence against women” shall mean violence that is directed against a woman because she is a woman or that affects women disproportionately;
e “victim” shall mean any natural person who is subject to the conduct specified in points a and b;
f “women” includes girls under the age of 18.
Article 4 – Fundamental rights, equality and non-discrimination
1 Parties shall take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere.
2 Parties condemn all forms of discrimination against women and take, without delay, the necessary legislative and other measures to prevent it, in particular by:
– embodying in their national constitutions or other appropriate legislation the principle of equality between women and men and ensuring the practical realisation of this principle;
– prohibiting discrimination against women, including through the use of sanctions, where appropriate;
– abolishing laws and practices which discriminate against women.
3 The implementation of the provisions of this Convention by the Parties, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status.
4 Special measures that are necessary to prevent and protect women from gender-based violence shall not be considered discrimination under the terms of this Convention.

I add that the language of this Convention is similar to that used by the institutions and agencies of the European Union and the Union of American States. Moreover, the European Court of Human Rights, that is the court of the CoE, as well as the European Court of Justice, an institution of the EU, have ruled in several instances that individuals who have had gender reassignment or are undergoing gender reassignment or intend to undergo gender reassignment are entitled to all rights and obligations of their reassigned gender. The legislation and court decisions of the national states in Europe reflect these rulings.
The point I wish to make is, that even though Brennan and Hungerford have to right to petition the UN, the several international bodies have duly considered the concept of gender identity . The train has already left the station this time around.

Jane Thomas, Germany

Which is why this is really a non-issue at the level of the letter's intended recipients, and why the writers are working so hard to spin their take into something less overtly hostile to trans people in general.

Jeanne Cordova | August 30, 2011 1:11 AM

Dear Editor: Please correct your Beth Elliot bio listed here. Ms. Elliot was never an organizer of the West Coast Lesbian (aka First National Lesbian Conference)at UCLA in 1973. This is a grave historical error which I challenge Elliot to drop from her bio. I and five members of the 'Lesbian Activists', all based and living in LA, were the core organizers. (Please google). Elliot appeared on stage at that event as a guitar player, and became controversial when challenged as a transsexual. She was also not among the two dozen Steering Committee women who spent months of their lives organizing this national event, and certainly never a member of that Committee. Perhaps she means she organized a car full of people from the Bay Area to come to it? Please ask Elliot to correct this error which she has repeated here and in other posts etc for many years.

Why don't we tell the whole story here, Jeanne? My additional commentary to this tale is enclosed in brackets.

From Gay L.A.: A History of Sexual Outlaws, Power Politics, and Lipstick Lesbians by Lillian Faderman, Stuart Timmons

Los Angeles pioneered in such vast gatherings, beginning with the 1971 Gay Women's West Coast Conference, which attracted to its Metropolitan Community Church venue "gay women" (including a large Daughters of Bilitis contigent) as well as "lesbian feminists" and (to the surprise of the organizers) delegates from not just all over the West Coast, but also the East Coast, the South, and the Midwest. Jeanne Cordova, organizer of the conference, remembers that the "old gays" and the "lesbian feminists" "were shocked to see each other." The daughters of the Silent Generation were encountering the daughters of the Sexual Revolution. What might the generations make of one another? The lesbian feminists took off their shirts and danced about wildly and freely, in weaving circles, as at a bacchanal, while the old gays looked on, bemused.

[In other words: the old gay women likely thought that the lesbian feminists were just a tad nutty, to say the least.]

The splash of the first conference made Cordova dream of an event even more ambitious. A 1973 West Coast Lesbian Conference was national and international, attracting to its UCLA venue almost 2,000 women from twenty-six states and several countries -- "the largest single gathering of lesbians known in history" to that date. As was perhaps inevitable in bringing together so many diverse people, conflicts were epidemic in these conferences. One of the first political conflicts over [transsexuals] took place at the West Coast Lesbian Conference when some lesbian attendees wanted to stop a male-to-female transsexual singer and guitarist, Beth Elliot, from performing.

The Los Angeles organizers of the conference "didn't care about transsexuals one way or another," according to Jeanne Cordova. "L.A. activists weren't purists, and we certainly weren't threatened by transsexuals' participation. There were so few of them." But many of the conferees from elsewhere insisted that male-to-female transsexuals like Elliot had not only enjoyed patriarchal power over women but also continued to exude "male energy."

[Following that justification of discrimination, do black people then have 'inferior to whites energy' and Muslims have 'terrorist energy' too? Gosh, that works for hatred on all fronts!]

According to Cordova, a contingent who called themselves the "Gutter Dykes of San Francisco," [The same 'Gutter Dykes collective' that infamous transsexual hater Bev Jo belonged to, I wager.] led by "two orange-headed dykes with crew cuts," gathered near the stage and started a protest: "They were screaming, 'That's not a woman! He's a fake! He's a transsexual!' It was like an earthquake -- at first a little earthquake. Then an 8.5," Cordova remembers now. Robin Morgan, a keynote speaker, exacerbated the fury with an impassioned harangue, excoriating Beth Elliot as "an opportunist, an infiltrator, and a destroyer -- with the mentality of a rapist."

[Notes at the end here.

There is no mention of Cordova attempting to do anything about these events. Perhaps Jeanne would like to write here as to what she did to prevent or stop this from going on, since she brought the subject up.

Robin Morgan is the same woman who is quoted as saying, "I feel that man-hating is an honorable and viable political act...", "Let's put one lie to rest for all time: the lie that men are oppressed, too, by sexism...", and "Oppression is something that one group of people commits against another group specifically because of a threatening characteristic shared by the latter group."]

Lauren Winter | November 8, 2011 3:18 PM

Let's not malign Jeanne Cordova here, who was after all a supporter of Beth Elliott at the conference, and who ended up taking a lot of heat from other lesbian feminists for the decision to invite Elliott to perform at the conference:

"In Los Angeles, Jeanne Cordova's Tide Collective wrote an editorial in support of Elliott and telegrammed its objections to San Francisco: ... 'Please advise our transsexual sisters that if they are not welcome in the liberal city of San Francisco, they are most welcomes to the city of Los Angeles.'"

As to Jeanne's response during the conference:

"Jeanne Cordova was backstage, but she could hear shouts, hisses and boos as Beth Elliott began to perform. She peeked around a curtain to see a woman with a bright-red crew cut and work boots, a member of the Gutter Dykes, a radical lesbian group from San Francisco, hollering at Beth Elliott to get off and get out. Cordova walked onto the stage, grabbed the microphone and asked: 'What is the problem here?' The uproar was so furious she could barely be heard. As Beth Elliott sat quietly on the edge of the stage, Cordova defended the organizers' decision. Elliott is, Cordova said again and again, 'a feminist and a sister'. She asked for a show of hands as to whether the performance should go on."

- quoted from "Out for Good: The Struggle to Build a Gay Rights Movement in America" (note that the authors of this 1999 account are pretty transphobic themselves).

Jeanne's comment above is simply pointing out that Elliott was not herself an organizer of the conference, which is something that Elliott has repeatedly stated in her bio.

Ironically, Beth Elliott is actually the transphobic one here. I find it odd that she is receiving praise for her response to the Brennan-Hungerford letter. One of the worst parts of the B-H letter was their insistence that only trans women who had completed SRS be legally allowed in women-only spaces like bathrooms and locker rooms. But this is a point where Elliott and and Brennan/Hungerford are in complete agreement!

Beth Elliott has made numerous claims over the years that only trans women who have completed SRS should be socially and legally considered women. Her most disgraceful recent attacks have been aimed at trans blogger Autumn Sandeen, who has blogged about her process of obtaining a court ordered change of gender in California following her orchiectomy.

Beth Elliott went so far as to post on a bay-area lesbian listserv, asking for someone in San Diego to attend Sandeen's court date and persuade the judge to deny Sandeen's change of gender petition, by informing the judge that Sandeen had only had an orchiectomy, not full SRS. (this is a moot point anyway since the law has now changed in California to make SRS unnecessary).

See Elliott's comment on this blog post:

See also this post: (Warning: this is an EXTREMELY transphobic blog but I have no reason to doubt the veracity of the quote from Beth Elliott's listserv post)

I think it's ironic, therefore, that Elliott is being hailed as some kind of trans hero, while she spends her time attacking and legally harassing members of the trans community who she deems not as "authentic".