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Research

Revision as of 14:21, 24 August 2023 by 64.44.118.174 (talk)

Law

United States

Summary

A discussion of the need for genderqueer people to be recognised as a distinct, legally protected class, and the possible benefits this could yield for society in general. First-person accounts from genderqueer individuals are used to illustrate what it means to be genderqueer. The paper goes on to outline definitions of 'genderqueer', statistics that highlight unique challenges faced by genderqueer people with regard to discrimination, and arguments that could be used to refute the perceived need for classification based on binary sex.

Key Points
  • Genderqueer identity has largely been ignored by U.S. law; the word 'genderqueer' is often instead used to refer to a political movement to challenge gender roles. Genderqueer people are sometimes included under the wider definition of 'transgender', but this can serve to erase genderqueer identity from consideration.
  • Two definitions of genderqueer should be considered:
  • The Practicing Law Institute's existing definition of 'genderqueer' as a “term for people who challenge the binary gender system of femininity/masculinity; often used because of its subversiveness/overtly political/activist aspects; incorporates ideas from gender theory into personal identity.”
  • A definition of 'genderqueer' as a distinct identity:

    ““Genderqueer” refers to those who do not (or do not always) identify as either a woman or a man. Some who consider themselves genderqueer may identify as a man one day and a woman the next. Others identify as neither man nor woman, seeing themselves as between or beyond genders. Some reject gendered pronouns, preferring to be referred to as “they,” or “ze” (a recently created, gender-neutral pronoun) or simply by their name.”

  • Legal protection for genderqueer people would likely make it easier for binary trans* people to seek legal protection, as a system that is already accustomed to removing a gender marker should also have little changing one from 'M' to 'F' or vice versa.
  • Accepting genderqueer people under the law would also be an admittance that gender is fluid and constructed, which may lead to the reduced medicalisation of trans* identities and wider acceptance of less rigid attitudes toward gender.
  • Genderqueer people may face bias in the courts due to their (statistically) younger age, which may contribute to a perception of them being 'confused', 'going through a phase', or threatening the status quo with radical views.
  • 90% of genderqueer people surveyed report an experience of verbal harassment in the workplace, barriers to advancement, and pervasive fear of these outcomes.
  • US federal law likely already protects genderqueer people, due to language that focuses on 'gender identity' and 'gender expression', rather than transition.
  • For example, the latest proposed version (at the time of the paper's publication) of the federal Employment Non-Discrimination Act (ENDA) defines gender identity as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”
  • However, employers are often unaware of this, and may discriminate despite the law. This may mean that employers who do discriminate against genderqueer people will take fewer precautions to cover themselves, making it easier for plaintiffs to build a case against them.
  • Most state laws also implicitly include genderqueer people, by protecting “gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.”
  • Exceptions:
  • New Mexico's definition of gender identity as "a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behaviour or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth"
  • Minnesota's state laws describe being trans* as " “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness”.
  • Colorado makes the distinction between gender identity (“an innate sense of one’s own gender”) and gender expression (“external appearance, characteristics or behaviors typically associated with a specific gender”). Laws concerning "sexual orientation harassment" include deliberate misuse of pronouns and names.
  • At the time this paper was published, the latest proposed version of the ENDA defined gender identity as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This further clarifies the inclusion of genderqueers under the law, though it may be unintentional.
  • Arguments for genderqueer inclusion from the standpoint of equal protection:
  • Gender classifications are reviewed under the Equal Protection Clause using the 'intermediate scrutiny' standard - any act of discrimination based on gender by the state must be justified with benefits to an important state interest.
  • There is precedent to show that laws based on gender stereotypes should not be upheld - see the case of Craig v. Boren, in which law would have allowed women to legally buy beer at a younger age than men, as men were caught drunk driving more often. The law was not upheld, as it was felt that differential treatment of the genders played a role in women having fewer opportunities to drive when drunk.
  • There is also precedent that perceived 'inherent differences' between genders are not enough to justify discriminatory law - see the case of United States v. Virginia, in which the Virginia Military Institute banned female students, as they were not considered physically or mentally tough enough to withstand training. The law was not upheld.
  • It could be argued that the idea that there are only 'men' and 'women', and that gender does not differ from sex assigned at birth, is in itself a stereotype and a presumed inherent difference between sexes. Therefore, this idea alone should not be enough to justify a binary sex classification system.
  • Binary sex classification is also arguably irrelevant to important state interests, as sex classification does not affect a person's privileges for travel in the US and often does not relate to their gender expression for the purposes of identification.
  • The Due Process Clause protects “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” There is a precedent for this clause being used to affirm the right to an abortion and undermine ant-gay sodomy laws.
  • Since US family life is still much defined by traditional gender roles, and the right to marry is based on the genders of the partners who wish to marry, gender is clearly linked to these personal decisions. The clause has also been described by the Supreme Court as protecting 'the right to define one's own concept of existence', and gender could arguably be included in that concept.
  • Genderqueer people could, therefore, make the case that they should be free to define their own gender without intervention by the state in the form of binary classification.
  • The First Amendment prohibits 'state-compelled speech', particularly that which conveys an 'ideological message'. There is a precedent for this being used to justify refusal to display passive, state-issued messages (e.g. citizens removing the New Hampshire state motto, "Live Free or Die", from their license plate, because they disagreed with said motto).
  • To some extent, presenting and/or identifying as genderqueer is an ideological decision, and genderqueer people should not be forced to affirm the idea that gender is binary and tied to sex every time they present documentation.
Published in: The Dukeminier Awards Journal
Access: Open Access.

Policy/Statistics

United States

Summary

An analysis of data from the 2008 National Transgender Discrimination Survey (NTDS), by the National LGBTQ Task Force and the National Center for Transgender Equality in the US, which surveyed 6450 trans and gender non-conforming participants over the course of six months. The study included two questions about gender identity, one of which provided an 'A gender not listed here' (GNL) option, with an open text field to specify. This analysis focuses on respondents who described their gender identity as GNL (a total of 860 participants, 13% of the sample), and their experiences of discrimination, harassment and abuse compared to non-GNL respondents and the total sample.

Introductory Note
Since this paper is freely available at the link above, in the interest of brevity I will not be reporting all exact statistics here; please refer to the original paper for specifics.
Key Findings
  • A variety of gender identity labels were submitted by GNL respondents, including:
  • 'Genderqueer' or 'queer' (42% of GNLs; 6% of the total sample)
  • 'Both', 'either', 'neither', 'in-between', or 'non-binary' (9% of GNLs)
  • 'Androgynous' or 'blended' (8% of GNLs)
  • 'Non-gendered', 'gender is a performance', or 'gender does not exist' (3% of GNLs)
  • 'Fluid' (2% of GNLs)
  • 'Two-spirit' (2% of GNLs)
  • 'Bi-gender', 'Tri-gender', or 'third gender' (2% of GNLs)
  • 'Genderfuck', 'rebel', or 'radical' (1% of GNLs)
  • A variety of unique responses, including: 'Birl'; 'Jest me';'Skaneelog'; 'Twidget'; 'Neutrois'; 'OtherWise'; 'gendertreyf'; 'trannydyke'; 'genderqueer wombat fantastica'; 'Best of Both'; 'gender blur'; and 'transgenderist'.
  • Some responses for which the frequency was not reported, including: 'Pangender'; 'Hybrid'; 'Mahuwahine'; and 'Aggressive'. It is unclear from the report whether these were folded into other categories above for the purpose of producing statistics.
  • GNLs were more likely than non-GNLs to be FAAB. They were also more likely, to be under 45, and/or to be multiracial, Black, or Asian. They were less likely than non-GNLs to be White or Latinx. In addition, GNLs were more likely than non-GNLs to live in California, the Northeast, the Mid-Atlantic states, and the West (including Alaska and Hawaii), and less likely to live in the Midwest and South.
  • GNLs had higher educational attainment than non-GNLs, but were more likely to live in extreme poverty - though this may be because they were, on the whole, younger than non-GNLs.
  • GNLs were more likely than non-GNLs to have experienced harassment and sexual assault at school; they were also more likely to have experienced physical and/or sexual assault as adults. In addition, GNLs were more likely to have worked in an underground economy, postponed medical treatment for fear of discrimination, and/or attempted suicide, and were more likely to be uncomfortable with going to the police for help. Finally, they were also more likely to be HIV positive or of unknown HIV status, and more likely to be unemployed. To summarise, contrary to common perception, GNLs had experienced abuse, harassment, and discrimination at higher rates than non-GNLs.
  • GNLs were less likely than non-GNLs to have lost their job, and/or had medical treatment denied, as a result of transphobia.
Implications for Future Research
  • Including non-binary gender options in future surveys may be necessary in order to observe the "unique demographic patterns" and "distinct experiences of discrimination" present in non-binary/GNL people.
  • Future researchers should further explore the identities and experiences of genderqueer people, both by examining these data more closely and by designing novel studies.
  • In addition to the gender question focused on by this study, the survey included an additional question asking participants to choose as many identity labels as applied to them from a list, including 'Transgender', 'FTM', 'MTF', 'Genderqueer', and many others. Answers to this question have not yet (at time of publication) been investigated in detail, but appear to differ considerably from those given by GNLs; more research is required to explore the answers to this question.
  • Further research is needed to make up for the statistical limitations of this study (see below).
Limitations
  • In addition to the 'GNL' option and binary male and female answers, the gender question examined here also provided an option for "Part time as one gender, part time as another", which was chosen by 20% of respondents. This wording could conceivably cover genderfluid and bigender identities, meaning that there have been more non-binary respondents to the survey than were examined by this study.
  • The statistical test used - Pearson's chi-squared - only produces generalisable results when applied to a random population, which this was not. In addition, the non-random nature of the study may have compromised the test's ability to find statistical significance. The findings of this study should therefore not be taken as read, but instead, be used to provide hypotheses for more in-depth research.
Published in
The LGBTQ Policy Journal at the Harvard Kennedy School
Access
Open Access
Content Note
Contains mention of sexual and physical assault and suicide.
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