Thursday, May 18, 2017

Transexual Murders in the U.S.--Are they hate crimes?

 Transgender murders gets a lot of attention in the press and are heavily emphasized by the trans-activist community with Transgender Day of Remembrance and many press reports keeping count of the year's transgender murders.  The implication is that these murders are hate crimes.  There has been one conviction and sentencing for the murder of a transgender person under U. S. hate crimes law.    Joshua Vallum  was sentenced to 49 years in prison for killing his ex-girlfriend Mercedes Williamson.  Vallum, a gang member, killed Williamson because he feared that his fellow gang members would discover that he had dated a transwoman.

The trans-activist community gets upset when anyone suggests that the murders of transpeople are more properly looked at as associated with prostitution, drugs, domestic violence, or robbery.
These murders are tragic for the victims whose lives are cut short and who always have hopes, dreams, and aspirations for their lives.  The murders are tragic for the family and friends of the victims.  The question I want to ask is how these murders can best be prevented.  To do that, we can't just assume that they are hate crimes.  We have to do our best to look at the specific circumstances of each murder.

I looked at transgender murders for the year 2014 in the U.S., hoping that police investigations, arrests, and trials would have been completed and we would have a good picture of what happened in each case.  The names came from the Wikipedia page listing transgender murder victims. Here is a brief outline of the victims and the outcomes of the cases, if known.  If anyone has more accurate information about arrests or trials of perpetrators please let me know and I will correct or update this blog


Yazmin Shanchez:  Race: Black.  Yazmin was shot and her body partially burnt.  Yazmin had a history of arrests for prostitution, cocaine and other charges.  Yazmin had been seeing Terry Brady, the man charged with the murder.    Brady had an extensive prior criminal record and was sentenced to life in prison for the murder.  The motive was Brady's anger that Shanchez had publicly outed him as gay.

Kandy Hall:  Race: Black.  Found murdered in a field.  Kandy had four arrests for prostitution.  Not solved. 

Mia Henderson:  Race: Black.  Henderson had several prior arrests for prostitution and was killed in an area known as a "hotbed" for drugs and prostitution.  Shawn Oliver, the man charged, was acquitted.  He claimed they had consensual sex the day before.  Henderson, whose birth name was Kevin Long, was mourned by brother Reggie Bullock.  Reggie took a lot of heat from the transgender community for referring to Henderson through his own experience with a brother, rather than calling Henderson a sister.

Zoraida "Ale" Reyes:   Race: Mexican American immigrant.  Reyes and Parkerson, the murderer, met online and agreed to meet to have sex.  He says he accidentally strangled Reyes during a consensual encounter in a car.  Randy Parkerson was convicted of second degree murder and sentenced to 15 years to life.

Tiffany Edwards: Race: Black.   Quamar Edwards, the murderer, shot Tiffany Edwards after giving her a ride and then deciding not to have sex.  Tiffany wanted money and they came to blows.  Both had extensive criminal records.

Alejandra Leos:  Race: Latina.  Leos was shot and killed by Marshall Pegues after a lover's quarrel.  Pegues was indicted for first degree murder.  I have not seen any follow-up to this case.

Aniya Parker:  Race: Black.  Parker was shot in the head in a drug related crime. Ulises Carcamo was convicted of murder and sentenced to 50 years.  Eric Carrillo, who was a minor at the time of the killing, testified in the case and got a plea deal.  He pleaded no contest to a manslaughter charge and was sentenced to nine years.

Ashley Michelle Sherman:  Race: Black.  Ashley , also known as Tajshon, had an arrest record for prostitution and commercial sex and well as being reported as the victim of harassment and abuse.  This murder is unsolved.

Breana "Gizzy" Fowler:  Race: Black.  Mallory Porter shot Breana and later was arrested, took a plea deal and was sentenced to 15 years for the murder.  The two had met for sex.  I could not tell from the reporting what happened. Some reports say the two already knew each other, some say that Mallory thought Breana was a female and was surprised and scared to find out he was anatomically male.  Fowler presented as a male known as Gizzy to his friends, but had an online persona as a female named Breana.  

Deshwanda Sanchez:  Race: Black. Sanchez was shot by Robert Spells while pounding on a door for help.  The two knew each other, but police did not disclose what sort of relationship they had.  Robert James Spells was arrested and charged with murder during the course of a robbery.  He is facing 30 years to life and also is charged with sex trafficking an 11 year old girl.  It is not clear if Deshwanda's transgender status played a role in this crime.

The accounts that police, reporters, friends, and witnesses put together are always flawed by the fact that the murder victim does not get to speak.  The murderer, even when he confesses, still gets to tell his story and there is another side that we do not hear.  However, certain patterns stand out.  All transgender murders reported in the U. S. in 2014 were people of color.  There are many white transwomen, but they are not murder statistics.  Transmen are also not being murdered.

The situation with the murders of these transgender people of color is complex.  Two of these murders were unsolved at the time of this writing.   Multiple factors are involved in each case.  How can we tell, from a crime or a pubic health perspective, what the risk factors are?  What are the rates of murder in the cities where these murders occurred?  for men?  prostitutes in general?  women?  those involved in the drug world?

None of these murders is a clear cut hate crime in which the perpetrator decided to kill  a transgender person specifically because they were trans.  However, in two of the cases, Deshwanda Sanchez and Breana Fowler, the trans identity of the victim may have played a part.  If not for the trans identity or the presentation as a woman at the time of the murder, these crimes fall into familiar patterns of drug deals and prostitution, sexual meet ups, and robberies gone wrong or some kind of domestic dispute.

On the other hand, many female prostitutes are murdered every year and though these are not prosecuted as hate crimes, many could be.  Prostitutes are frequent targets of serial killers for instance and these killings would fit the definition of hate crimes if women are considered a targeted group.  However, this would require a change in police and prosecutor perceptions and practice when any prostitute is murdered.

In general the press reports are frustrating to read.  Trans-activists highlight what they call mis-gendering and dead naming of the victim.  Their focus is on getting the press and the police to use the gender the victim currently identifies as and the name the victim is currently using.  They complain that they may not know of the death of a friend because police used genitals to identify the victim's sex and report a legal name that may be different from the name current friends use.

On the other hand, reporting that uses a victim's gender presentation and name associated with the current gender identity may mean that family and old friends do not know of the death.  Family and old friends often only know the victim based on their personal experiences from the past.  So, a brother will mourn the death of the brother he grew up with, not the transgender woman he never knew.  It seems wrong to insist that only the most current gender identity and name be used, as that obscures the fact that the person has a history which includes a gender change. 

Also, a very broad definition of transgender may label people as trans who do not identify themselves as transgender. This further confuses the picture.  In reporting on these cases, press and police, to the extent they are able, have an interest in all the facts that may be relevant.  These facts include the birth name and sex as well as the current preferred gender identity and name.

How can such murders be prevented?  Are they best prevented by campaigns that humanize trans people and call for tolerance of difference?  Certainly such campaigns can be beneficial.  However,  would these particular murders have a better chance of being prevented by programs that help people leave prostitution or get clean from drugs, or give them job skills, or help them go to college?  Can life be made safer for those working as prostitutes?  Given that all the perpetrators were men and almost all had histories of crime and violence, would focusing more of our attention on perpetrators of violence help to reduce crimes such as those reported here?

Despite frequent claims to the contrary and the difficulty of finding reliable figures, transgender people do not appear to have the highest murder rate of any group.  The focus on gender identity may obscure more important underlying patterns of violence.  These calculations show that their murder rate is below that of both men and women in the U. S.  It is very difficult to get reliable statistics as there is considerable disagreement about who qualifies as transgender and many murders are not well investigated or are not reported in the press.  Clearly, we need to be more careful in gathering evidence and reporting statistics.

Many of the murdered transwomen were connected with prostitution, which is known to be a dangerous profession with high level of violence, including murder, perpetrated against them.  The murder rate for those involved in prostitution is particularly high as is the rate for those involved in illicit drug dealing.  Again, it is difficult to get reliable statistics on these rates, but this page gives some context and a death rate of 204/100,000 for prostitutes, which is a much higher rate than those calculated in the previous link for women, men, and transwomen.  It does suggest that these particular murders should not immediately be assumed to be "trans" murders, but need to be evaluated in the contexts of the particular communities these people lived in, in terms of poverty, race, and occupation.  How can we work to prevent future murders if we refuse to look carefully at the evidence that we have about the context of the murders of transwomen of color?





Tuesday, May 9, 2017

The Science of Male, Female, And Transgender Difference

This post is not directly related to the Privacy Matters case, but it does relate to the issue of the diagnosis of gender dysphoria.  Consider this entry a work in progress, as new studies come out on this topic fairly often.  The reason for looking, however briefly, at some of the studies done so far is that they are rather widely discussed in the press and because the claims made about these studies are put forth to justify policy decisions.  The main question for this post is whether any scientific studies give us an adequate basis for such decisions.

Preliminary Conclusion
There is no scientific consensus and no reliable research on brain features or physiological responses that can identify transgender individuals or predict, based on brain scans, who is or will later identify as transgender.  In general, sample sizes are too small, alternate hypotheses have not been examined, the definition of who is transgender, controlling for other mental health conditions, and many other factors are not considered.  Trans advocates often complain that there are not enough of them to get the sample sizes needed for a reliable scientific conclusion based on good statistical evidence.  This is likely true.  At the moment, transgender brain science cannot be a meaningful aspect of the conversation and we need to look elsewhere in our attempts to form just policies.

I will look at a few of the studies of male/female brain differences and transgender physiological responses to illustrate the kinds of research that are being done, the difficulties with these studies, and what they would need to overcome in order to produce reliable results.  I start with a recent large scale review article.


Research on Overall Differences and Similarities Between Male And Female Brains and Bodies
The paper Sex Beyond The Genitalia:  The Human Brain Mosaic published in 2015 is a meta-analysis of many studies looking at the question of male and female brains.  The Abstract reads

Whereas a categorical difference in the genitals has always been acknowledged, the question of how far these categories extend into human biology is still not resolved. Documented sex/gender differences in the brain are often taken as support of a sexually dimorphic view of human brains (“female brain” or “male brain”). However, such a distinction would be possible only if sex/gender differences in brain features were highly dimorphic (i.e., little overlap between the forms of these features in males and females) and internally consistent (i.e., a brain has only “male” or only “female” features). Here, analysis of MRIs of more than 1,400 human brains from four datasets reveals extensive overlap between the distributions of females and males for all gray matter, white matter, and connections assessed. Moreover, analyses of internal consistency reveal that brains with features that are consistently at one end of the “maleness-femaleness” continuum are rare. Rather, most brains are comprised of unique “mosaics” of features, some more common in females compared with males, some more common in males compared with females, and some common in both females and males. Our findings are robust across sample, age, type of MRI, and method of analysis. These findings are corroborated by a similar analysis of personality traits, attitudes, interests, and behaviors of more than 5,500 individuals, which reveals that internal consistency is extremely rare. Our study demonstrates that, although there are sex/gender differences in the brain, human brains do not belong to one of two distinct categories: male brain/female brain.

This study comes to similar conclusions as others.  There is no such thing as a female brain in a male body or vice versa, because brains are not dimorphic.  Moreover, the authors state in the Discussion that "Another noteworthy observation is that the size of the sex/gender difference in some regions varied considerably between different datasets (Table S1). This finding is in line with previous reports that the existence and direction of sex/gender differences may depend on environmental events and developmental stage (4, 5)".

The paper The landscape of sex-differential transcriptome and its consequent selection in human adults is being posted in my Facebook feed by various groups.  I read the original paper. The authors find that over 6,500 genes are differently expressed in males and females.  This points to the physical reality of biological differences between males and females beyond obvious differences in reproduction organs.  Since virtually every human cell in a person's body has the exact same genome, it is noteworthy that the genes may be expressed differently in different tissues in males and females.  The authors, Moran Gershoni and Shmuel Pietrokovski looked at differential expression in order to better understand human evolution and especially the persistence of genes that can produce negative effects such as infertility.  They hypothesize that such gene alleles (alleles are variants of a particular gene that codes for a particular protein) could persist if they were important for one sex, even if deleterious for the other.  Most genes they tested were expressed the same in men and women.  However, among the ones that had sex differentiated expression (SDE), "the most sex-differentiated tissue, with 6123 SDE protein-coding genes, is the breast mammary glands....This suggests major differences in the physiology and sex genetic architecture of this tissue. We found 1145 genes to be SDE in non-mammary gland tissues. The most differentiated of these tissues, with over 100 SDE genes, are the skeletal muscle, two skin tissues, subcutaneous adipose, anterior cingulate cortex, and heart left ventricle...."   These differences in gene expression lead to biological differences between males and females.  The authors postulate that infertility and various sex-biased human diseases could result from this differential expression, especially when the traits expressed are critical for reproductive or other functions in one sex and not in the other.  The mammary glands are a good example of this disparity.  Known differences between males and females in musculature, fat deposition, and heart anatomy are supported by these results as well.  While this study was not meant to support or refute a biological basis for transgenderism, it does make clear that to practice good medicine and for an understanding of human evolution the distinction between males and females is essential.

Research That Aims To Identify Differences Between Transgender Individuals And Others. 
The first topic is a series of studies on a brain region known as BSTc.  It is interesting to see the progression of the studies.

Zhou et al in 1995 looked at the volume of the central subdivision of the bed nucleus of the stria terminals (BSTc).  This research looked at 6 transexual male-to-female brains and found that the volume of the BSTc was in the female range, rather than the male range for this structure.  Kruijver et al in 2000 looked at these same brains, but evaluated the BSTc for number of neurons, rather than overall volume. In Male-to-female transsexuals have female neuron numbers in a limbic nucleus., they show that this difference also shows up in neuron number.  In 2002, Wilson et al published a study in the Journal of Neuroscience that found that the BSTc region did not sexually differentiate significantly until adulthood.  Since transsexuality is often claimed to be inborn and to manifest in very young children, it is difficult to see how the BSTc could be used as a reliable  marker to identify transexuals.

Anne Lawrence critiqued these studies in a 2007 paper.  She emphasizes that neither of the first two papers took into account whether the MtF brains studied were from homosexual or heterosexual transexuals, nor did they adequately consider whether the cross sex hormones taken by these individuals might have caused the differences observed.  She also critiques Zhou's study for fishing through the data in order to find a brain region that showed differences, rather than hypothesizing that the particular brain region focused upon should show such differences.  Thus, without  replicating these results, we cannot accept them as confirmed.

I could not find the full text of this next paper,  so I am using several articles that report on it.

Scientific American Mind, January 1, 2016
"Spanish investigators—led by psychobiologist Antonio Guillamon of the National Distance Education University in Madrid and neuropsychologist Carme Junqué Plaja of the University of Barcelona—used MRI to examine the brains of 24 female-to-males and 18 male-to-females—both before and after treatment with cross-sex hormones. Their results, published in 2013, showed that even before treatment the brain structures of the trans people were more similar in some respects to the brains of their experienced gender than those of their natal gender. For example, the female-to-male subjects had relatively thin subcortical areas (these areas tend to be thinner in men than in women). Male-to-female subjects tended to have thinner cortical regions in the right hemisphere, which is characteristic of a female brain. (Such differences became more pronounced after treatment.)"

“Trans people have brains that are different from males and females, a unique kind of brain,” Guillamon says. “It is simplistic to say that a female-to-male transgender person is a female trapped in a male body. It's not because they have a male brain but a transsexual brain.” Of course, behavior and experience shape brain anatomy, so it is impossible to say if these subtle differences are inborn."

Another report on this study in New Scientists, 2011 comments that  "Guillamon isn’t sure whether the four regions are at all associated with notions of gender, but Ivanka Savic-Berglund at the Karolinska Institute in Stockholm, Sweden, thinks they might be. One of the four regions – the superior longitudinal fascicle – is particularly interesting, she says. “It connects the parietal lobe [involved in sensory processing] and frontal lobe [involved in planning movement] and may have implications in body perception.”

The New Scientist article also mentions two other studies that might bear on this question:

"A 2010 study of 121 transgender people found that 38 per cent realised they had gender variance by age 5. White matter differences could provide independent confirmation that such children might benefit from treatment to delay puberty."

"A study by Sean Deoni‘s team at King’s College London suggests it may soon be possible to look for these differences in such children. Deoni’s team adapted an MRI scanner to be as quiet as possible so it could be used to monitor the development of white matter in sleeping infants. Using new image analysis software they could track when and where myelin – the neuron covering that makes white matter white – was laid down (Journal of Neuroscience, vol 31, p 784). Although the sample was too small to identify any gender differences in development, Deoni expects to see differences developing in the brain “by 2 or 3 years of age”."

Guillamon commented about these studies:  “Research has shown that white matter matures during the first 20 to 30 years of life,” he says. “People may experience early or late onset of transsexuality and we don’t know what causes this difference.”

Physiological Responses
Berglund et al 2008 looked at the sensitivity to the odor of certain steroid compounds using12 MTF subjects compared with controls using a variety of techniques.  They report: "In summary, albeit the present study does not provide conclusions concerning the possible etiology, it suggests that in transsexuals the organization of certain sexually dimorphic circuits of the anterior hypothalamus could be sex atypical. It adds a new dimension to our previous reports by showing that the observed effects are not necessarily learned and that a sex-atypical activation by the 2 putative pheromones may reflect neuronal reorganization."

Burke et al published Click-evoked otoacoutstic emissions in children and adolescents with gender identity disorder in 2014.  These CEOAE emissions are echo-like sounds produced in the inner ear that have different amplitudes of detection in males and females. Based on a test with 47 transgender subjects and 127 control subjects, the authors conclude in part: "Based on the assumption that CEOAE amplitude can be seen as an index of relative androgen exposure, our results provide some evidence for the idea that boys with GID may have been exposed to lower amounts of androgen during early development in comparison to control boys." 

The Archives of Sexual Behavior published a tapping experiment led by Dr. Laura Case on eight transgender men and genderqueer individuals who wanted a double mastectomy.  These eight people and eight non-transgender women were tapped with a pencil on their hands and on their upper breasts, while clothed while brain activity was recorded with a neuroimaging machine.

They found that when tapped on their upper breasts, the transgender and male-leaning genderqueer subjects had a reduced response in brain areas that are thought to make “self-other” distinctions.  The authors speculate that the low response to breast tapping is a physiological manifestation of gender dysphoria.  Case notes that  “Scientific reductionism is unlikely to yield a simple explanation for a phenomenon as complex as gender identity.”

These studies give us some preliminary results without giving us strong evidence for a biological basis or biological marker for identifying transgender individuals.  Notice that most of the researchers sound notes of caution when communicating about the significance of their studies.  They use terms like "suggests", "based on the assumption", "provide some evidence", and "we don't know".   However, these studies should serve as a base from which other researchers can try to replicate results, and go back and investigate some of the aspects that were assumed, but not known to be true--such as the association of the BSTc with sexual behavior in humans.  Finer grained studies and analyses are  needed to distinguish between homosexual and heterosexual transgender men.  We may need to control for underlying mental health issues such as depression, autism, and prior sexual trauma--all of which have been associated with female-to-male transitioners.  Age of transition and social factors also need consideration.

It is often difficult to get robust statistical and repeatable results when the number of participants is so small, and this is likely to remain a difficulty with transgender studies.

Addendum on Nature article "Sex Redefined" by Claire Ainsworth
This article has been frequently posted to "prove" that sex is not binary and that Science proves that transgender people are real.  The article was published in Nature 18 February 2015.

This essay focuses on intersex conditions, in which the chromosomes and/or the biology of an individual are not 100% male or female.  Intersex biology has a great variety of causes.  Depending on how intersex is defined, the occurrence is anywhere between 1% with the broadest definition to .05% with a narrower definition.  There are many types of DSD conditions (Disorders of Sexual Development), many of which do not produce any symptoms and which do not affect fertility, sexual response, or gender identity.  Many people never know they have these conditions.

The subjects covered in the Nature essay are fascinating.  Since 1990, scientists have discovered over 25 genes that affect sexual development in some way and have discovered non-genetic routes to DSDs as well.  For instance, some mothers acquire male cells from being pregnant with a male fetus and these cells may become part of her body.  Scientists have found that XX vs. XY chromosomes in cells affect more than sex hormones; they can also create metabolic differences within the body.  One woman, pregnant with her third child, was found to have a mixture of XX and XY cells in her body thought to be acquired from a conjoined twin that never developed.  In mice, it was found that production of eggs or sperm could be affected after birth if certain genes were blocked.

The condition that garners the most medical concern is when a child is born with ambiguous genitalia such that a parent or doctor cannot easily identify the baby as male or female.  Until recently, parents and doctors would make a decision and surgery would often be used to alter the genitalia to better fit either the male or female sex.  The child would then be raised in the sex that had been picked.  This produced a variety of problems, particularly when the child later declared a gender identity at odds with the parent or doctor's choice.  Intersex adults became active in changing the view that it was necessary to do sex assignment surgery on infants or children.  They argue that if there were no health issues, such surgery could wait until children were adults able to give informed consent and could choose for themselves whether to have surgery and what sex they wished to affirm.

This essay addresses intersex conditions, both genetic and anatomical.  Sex researcher John Achermann is quoted "I think there is much greater diversity within male or female, and there is certainly an area of overlap where some people cannot easily define themselves within the binary structure."  It is statements of this sort which transgender activists use to prove that transgenderism has a biological basis.  This biological basis is then used to bolster their social and legal demands.

Transgenderism is not specifically addressed here. However, some transgender activists believe that showing biological ambiguities between males and females can also account for the feeling that you are born in the wrong body.  This claim would have to be substantiated by screening people who identify as transgender or non-binary and seeing if this identification reliably correlates with any of the 25 genes or other anatomical intersex conditions.  Would those that identify as transgender have these gene mutations at a significantly higher rate from those that identify as male or female?

Is biological determinism a valuable argument for establishing the legitimacy of transgenderism?  If we look at arguments about gay genes, which have been going on since the 1980s, we see that there is still no agreement.  Yet, articles pro and con keep appearing, such as this recent one from Newsweek.   One of the reasons for the continued disagreement is that it is very rare for one gene to "determine" anything.  There are multiple genes for most traits and these genes interact with many others to affect whether and how they are expressed.  Also, environmental factors such as upbringing, peer groups, and social situation affect expression of traits in many different ways. Homosexual identity can take many different paths and manifest at different times of life as can a transgender identity.  All these factors make it hard to "prove" anything about transgenderism from the kind of research reported in this article.

Even if such research produced positive conclusions, we still need to further ask what social and legal consequences should follow.  For instance, if a certain gene correlated with gender dysphoria in males with male anatomy, does that mean that these men are "really" and completely women?  It would seem that they are biologically ambiguous and choose to identify with and practice certain culturally female activities.  Does it follow that such men should be able to join all women's sports teams?  Does it mean that the typical anatomy, genetics, and physiological functions of over 99% of females should be disregarded and the definition of female changed so that the functions of giving birth or nursing are not considered female?  Does it follow that all men should now be able to access formerly female spaces such as showers and changing rooms?  These are typical demands of transgender activists and they use articles like "Sex Redefined" to support their case, though here as elsewhere more research is needed on both the biological and the sociological aspects of these questions.

These are not simple questions with obvious answers.  Doctors warn that there is much we do not know.  "They think that changing medical practice by legal ruling is not ideal, and would like to see more data collected on outcomes such as quality of life and sexual function to help decide the best course of action for people with DSDs...."

One important achievement of the intersex activists has been to forego medical interventions until patients were old enough to give truly informed consent.  Experience with child genital surgeries had shown that very often sexual function and response were compromised and the possibility that these surgeries might not be necessary at all was another reason to delay.  In contrast, transgender activists and their doctors are pushing for earlier and earlier drug and surgical intervention, ignoring what would seem to be relevant experience from doctors and patients from the intersex community.

Here are some more resources from Fair Play For Women

Differences between male and female part 1:  Bones and Muscles

Wednesday, May 3, 2017

Civil Rights in the Age of Transgender Youth: Part 2, Privacy

Introduction
This blog examine issues arising from the federal lawsuit  Privacy Matters v. U. S. Department of Education.  Background and terminology can be found in the first entry on Sexual Harassment.  This suit concerns a Minnesota junior high/high school in which a male-bodied student (as defined by sex at birth) began identifying as female gender and was allowed to use female bathrooms and locker rooms. I am starting from court documents and other public statements by the contending parties, to try to understand the issues through a legal lens.

Privacy
A major focus of this case is whether requiring girls to change clothes and use bathrooms in the presence of a male-bodied person is a violation of their privacy. 

Privacy is raised as a constitutional issue in the
 initial complaintThe heart of their argument is:

341. The Fifth Amendment protects citizens against violation of fundamental rights by federal actors. The Fourteenth Amendment protects citizens against violation of fundamental rights by state actors. 

342. Fundamental rights are liberty interests deeply rooted in the Nation’s history and tradition and implicit in the concept of ordered liberty.

343. Each Girl Plaintiff has a fundamental right to bodily privacy that, at a minimum, includes protection from intimate exposure, or risk of intimate exposure, of her body and intimate activities to a male. It also includes the corollary protection from intimate exposure, or the risk of intimate exposure, to a male’s body or intimate activities.

344. The fundamental right to bodily privacy is deeply rooted in the Nation’s history and tradition and has long been recognized in the United States Constitution and federal and state statutory and common law.

345. The fundamental right to bodily privacy is also implicit in the concept of ordered liberty because a government that compels its citizens to disrobe or attend to intimate activities in the presence of the opposite sex violates the core of personal liberty.

346. Such an abridgement of fundamental rights is presumptively unconstitutional and can only be justified if it survives strict scrutiny under which the law must serve a compelling state interest by the most narrowly tailored means. (p. 57 - 58).

Legal Background
Right of Privacy is defined as "the right of a person to be free from intrusion into or publicity concerning matters of a personal nature....NOTE: Although not explicitly mentioned in the U.S. Constitution, a penumbral right of privacy has been held to be encompassed in the Bill of Rights, providing protection from unwarranted governmental intrusion into areas such as marriage and contraception. A person's right of privacy may be overcome by a showing that it is outweighed by a compelling state interest."  

The aspect of Right of Privacy most applicable to the situation in which a male-bodied person enters a female space is "Intrusion of Solitude", defined as
 "Intruding upon another's solitude or private affairs, physically or otherwise, is subject to liability if this intrusion would be considered highly offensive to a reasonable person. This type of invasion of privacy is commonly associated with "peeping Toms," someone illegally intercepting private phone calls, or snooping through someone's private records."

Ordered Liberty is the view that fundamental constitutional rights are not absolute but are determined by a balancing of the public (societal) welfare against individual personal rights...."ordered liberty" describes a polity that has reconciled the conflicting demands of public order and personal freedom. 

Legal cases that address the issue of intimate contact between male-bodied and female-bodied people tend to involve strip and cavity searches in prisons and the right to get a pat down from a same sex TSA person at the airport.  In general, court decisions have upheld a view that such searches should be done by a person of the same sex as the person being searched unless a compelling reason such as lack of a same sex personal or an emergency situation makes this difficult or impossible.  This article examining court cases concerned with
Cross Gender Strip Searches of Prisoners gives perspective on the wide range of decisions that have been handed down.  

Incidents involving transgender people have caused controversy.  In the UK, female guards refused to strip search a male prisoner who claimed to be female, but was not undergoing any hormone or surgical treatment.  A recent TSA incident involved a male-bodied airline passenger going through the body scanner.  A button is pushed  indicating whether the scan will be of a male or female.  The male-bodied person identifying as female was flagged by the system and subjected to a pat down for a gun or weapon in the genital area.  Typically, such procedures must be done by an official of the same sex as the one being searched. A  person claiming a transgender identity causes confusions for which we presently have no agreed upon standards.

Perspectives of ADF and ACLU
The conservative Alliance Defending Freedom and the Liberal ACLU take on cases that often are very similar.  For instance, both litigate cases defending free speech on campuses. The two organizations cite the same constitutional amendments and the concept of ordered liberty in defending the rights of their clients.  Above, the ADF cites the right of privacy in the fifth and fourteenth amendments and the concept of ordered liberty in defending the privacy rights of girl plaintiffs. 

The ACLU has used these same concepts in their litigation.  For instance, in this amicus brief (p. 22-23) the ACLU invokes the fifth amendment and ordered liberty when defending Apple from FBI attempts to force them to write code enabling the FBI to hack into iPhones.  On the issue of  student dress code the ACLU cites a need to balance public goods with personal freedoms:  "Many school districts claim stringent dress codes increase their emphasis on academics, disperse gang activity, and reduce pressures stemming from socioeconomic status. But they can also violate a student’s First Amendment right to freedom of expression and a parent’s Fourteenth Amendment right to raise their children as they choose."  In an amicus brief for Vacco v. Quill (1996), The ACLU argued in favor of a terminally ill patient's right to die with dignity using the fourteenth amendment right to privacy and the concept of ordered liberty.   

The Plaintiffs' core privacy argument in this case hinges on the assertion that girls are being compelled by the government, in the guise of the U. S. Department of Education and the Virginia School District in Minnesota, to disrobe and perform other intimate bodily functions in the presence of a male-bodied person and are being exposed to a male-bodied person disrobing.  Plaintiffs deny that there are overriding government interests to compel this loss of bodily privacy and that other available remedies are not being used.  The ACLU sees this lawsuit as part of a larger "anti-trans strategy".  Their position was stated in an opinion piece in the New York Times by ACLU attorney Alexandra Brodsky, in October, 2016.  Brodsky wrote:

"The focus on privacy marks a shift in anti-trans strategy. Earlier efforts, like North Carolina’s House Bill 2, which limited bathroom access, relied on a dangerous myth that prohibiting discrimination against transgender people would allow predatory men to enter women’s restrooms. That approach is giving way to a new focus on privacy — narrowly defined to include only non-transgender women and girls....But the fake-feminist privacy argument is apparently more tolerable to liberal minds — and perhaps more dangerous for that reason."

As noted in the Complaint: 107. Under the District Policy, any student in any District school, pre-school through 12th grade, has unrestricted access to private facilities based on the students’ professed gender identity. 108. A student need not provide the District any medical or psychological confirmation of a diagnosis of gender dysphoria. 109. This Policy authorizes males to enter female-specific private facilities and vice versa for students aged three to eighteen (P. 23).  
If we examine the Incidents on Record link list of over 60 reported incidents of male-bodied people in female locker rooms, bathrooms, showers, and changing rooms we can get a sense of what the situation is like in the United States.  These newspaper articles of reported incidents include: 

34 incidents reported male-bodied persons, dressed in women's clothes
28 of the incidents involved videotaping and recording of women and girls using the   toilet, showering, or changing clothes.
27 of the perpetrators targeted underage girls
11 perpetrators had a prior history of violence and/or sexual offenses
9 of the incidents were rapes or physical sexual assaults
7 perpetrators identified themselves as transgender.

The types of incidents reported ranged from spying on girls under or through bathroom stalls, videotaping, rape and assault. Suspects were variously charged with invasion of privacy, sexual assault, child pornography, unlawful use of a concealed camera for purposes of sexual gratification, eavesdropping, capturing or distributing images of an unclothed person, using a computer to commit a crime, aggravated sexual exploitation of a minor, and more.

This list of incidents is enough to establish that violation of privacy has occurred in female intimate spaces and that the risk of sexual predators masquerading as transgender or actually living as transgender females is not a "dangerous myth" but a documented fact. Concerns about privacy grade into concerns about safety, as spying with a computer tablet camera can devolve into more serious child pornography charges.  In addition, it is surprising that Ms. Brodsky characterizes the protection of women and girls from unwanted male voyeurism in their intimate spaces as "fake-feminist", as this is a long standing issue in feminist communities. 

Augmenting the charges of violation of the right to privacy, Plaintiffs bring charges related to religious freedom, using both the U.S. and Minnesota Religious Freedom Restoration Act statutes. These religious issues will be the focus of the next blog entry.  The crux of this case is how sex is properly defined under the law.  The Defendants assert that inner gender identity should be the unquestioned standard, and the Plaintiffs assert a standard based on genital anatomy.  A future blog entry will look at this question from a variety of perspectives.

Update:  Privacy Matters withdrew the suit voluntarily as the Trump administration withdrew the Obama era directive mandating that "sex" be changed to "gender identity" in Title IX and the school made accommodations to protect the privacy of the girls.  Privacy Matters retained the right to refile the suit.

The author is a scientist and teaches the great books at St. John's College.  She has a child who identifies as transgender.  She knows that the law is an imperfect instrument and that judges are influenced by their own prejudices and ideologies.  Nevertheless, the law gives us an important venue for presenting facts, asking questions, and making decisions that can illuminate important social issues.



Creative Commons License
Civil Rights in the Age of Transgender Youth by Linda Wiener is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International L
recognize
that
the
government
may
not
exercise
authority
inconsistent
Salerno,
481
U.S.
739,
746
7
8
(1987)
(quoting
Palko
v.
Connecticut,
302
U.S.
319,
325-26
(1937)).

Wednesday, April 19, 2017

Civil Rights Law in the Age of Transgender Youth. Part I: Sexual Harassment

Introduction
This blog will examine issues arising from the federal lawsuit  Privacy Matters v. U. S. Department of Education.  This suit concerns a Minnesota junior high/high school in which a male-bodied student (as defined by sex at birth) began identifying as female gender and was allowed to use bathrooms and locker rooms and play on sports teams formerly used only by those of the female sex (as defined at birth).  In this series of blogs,  I am starting from court documents and other public statements by the contending parties, to try to understand the issues through a legal lens.

One of the issues fought out in the legal documents is the correct language that will be used to refer to a person born with a male body, but now identifying as female.  I have chosen to use male-bodied and female-bodied to refer to sex as observed at birth and gender identity to refer to a person's current identification, if it is different from sex at birth.  I will use his/her to refer to Student X, the transgender student in this case.  A fascinating aspect of this case is the way competing ideologies are fought out, both overtly and covertly, in the use of language.
Privacy Matters v. U. S. Department of Education grapples with many of the topics in contention with the rise of the transgender rights movement.    Some of the wide range of issues that must be addressed if this case goes to trial are  1. the definition of male and female, 2. the presence of male-bodied persons in formerly female-bodied only spaces, 3. male-bodied persons competing against female bodied people in sports, 4. the definition, diagnosis and treatment of transgenderism, 5. the right to privacy 6. freedom of religion, 7. the rights asserted by transgender people as weighed against the rights of others 8. the status of Title IX, and 9. competing cultural and ideological positions.  These issues are, of course, intertwined, but I will try to highlight each one in order to illuminate the whole.
In this first blog, I discuss sexual harassment, an issue arising under Title IX, that first drew me to this case.   Sexual harassment is a focus in the initial complaint .  As alleged on page 54, the school district policy allowing male bodied persons in female bathrooms and locker rooms "Creates a Sexually Harassing Hostile Environment." The complaint states in part:  "322. Sexual harassment constitutes discrimination under Title IX when it is so severe, pervasive and objectively offensive that it deprives a plaintiff of access to the educational opportunities and benefits provided by his or her school. 323. Typically, a school district is liable for its indifference to known harassment that occurs under its control. 324. Moreover when a district policy creates the sexual harassment, the school district is directly liable for intentional misconduct. 325. The Policy violates Title IX because it mandates an environment in which, every time a Girl Plaintiff uses private facilities be it to change for mandatory PE class, prepare for extracurricular athletics, or attend to human personal needs in a restroom she must use private facilities that are open to and used by a male student under the District’s authorization. 326. This situation on its face creates a sexually harassing hostile environment that violates Title IX. 327. The Policy as applied to Girl Plaintiffs meets every element for a Title IX hostile environment claim."
.
Allegations
The following are alleged in the Complaint:
Student X dances to loud music with sexually explicit lyrics in
the locker room while “twerking,” “grinding,” and lifting up his
skirt to reveal his underwear.

Student X changes his clothing by girls who try to seek additional
privacy, both Girl Plaintiff A and Girl Plaintiff D started using a secondary girls’ locker room to seek additional privacy but both Girl Plaintiffs report that Student X came in and used the secondary locker room while they were in their underwear.
Girl Plaintiff A also reports that Student X removed his pants near
her, while she was changing and in her underwear. (P. 12-13).

Allegations are made later in the initial Complaint with regard to individual girl plaintiffs:

[Girl Plaintiff] also tried changing on the opposite side of the room, but
Student X started moving throughout the locker room to change, dance, or
sit, and he would make loud rude comments to other girls about Girl Plaintiff
A and other girls who did not want to change near him.

Student X would dance in a sexually explicit manner “twerking,” “grinding” or dancing like he was on a “stripper pole” to songs with explicit lyrics, including “Milkshake” by Kelis.

On at least one occasion, Girl Plaintiff A saw Student X lift his
dress to reveal his underwear while “grinding” to the music. (p. 30)

Both when inside the locker room and while outside in the gym,
Student X asked Girl Plaintiff F and other girls about their bra sizes
.
Student X also repeatedly asked Girl Plaintiff F to “trade body parts” with him.
These questions and comments made Girl Plaintiff F very uncomfortable because of the close attention Student X paid to the private areas of her body. (p. 38)

The initial complaint was not answered.  Instead there was a flurry of filings to get a preliminary injunction on the policy (which I will discuss in another blog entry) and a flurry of motions from the parent and Student X to intervene and become a party to the suit which previously was being defended by the Department of Education.

Is this kind of behavior--twerking (defined as dancing to popular music in a sexually provocative manner involving thrusting hip movements and a low, squatting stance). grinding (defined as dancing in an erotically suggestive way, often while in contact with one's partner), playing loud, sexually explicit music, and following and commenting on the girls who are trying to avoid this student sexual harassment?  To get at this question, we need to look at the definition of sexual harassment, school policies and actions, and prior legal decisions. 

Policies
—U.S. Department of Education Office for Civil Rights (OCR) is the U. S. government entity charged with enforcing Title IX.  Here is their definition of sexual harassment:
Sexual harassment is unwelcome conduct of a sexual nature, which can include unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. Thus, sexual harassment prohibited by Title IX can include conduct such as touching of a sexual nature; making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written materials; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e-mails or Web sites of a sexual nature.”
Legal Background
In Davis v. Monroe County Board of Education, a fifth grade girl complained of eight incidents of harassment by a male classmate,  the U.S. Supreme Court determined that four factors are required for a finding of a Title IX violation: (1) school officials must have actual knowledge; (2) officials with the authority to take remedial action instead show “deliberate indifference,” which makes students vulnerable to harassment; (3) the harassment must have been severe, pervasive, and objectively offensive; and (4) the harassment must have had the effect of denying the victim’s participation in educational programs or activities.  The ACLU filed an amicus brief in support of the plaintiff.  The ACLU counted this case as a win for them when the Supreme Court upheld the ruling against the school board.
In other contexts, women have won cases of sexual harassment for being subjected to explicit sexual comments and sexual music (Reeves v. C. H. Robinson Worldwide Inc.).  An important component of this case was determining if these acts were specifically aimed at the plaintiff.  For instance, just playing a radio station with offensive sexual content in a cubicle is not enough to constitute sexual harassment, the plaintiff must show that it was done specifically to harass.   Twerking has been considered sexual harassment and there have been some arrests.  It does not matter whether the accused is considered male or female as demonstrated by  EEOC v ABC Phones, which involved same sex harassment (and was settled out of court).

School Response
When student X announced his/her transgender status, the school initially made arrangements for Student X to use an alternative private facilities.   Initially, the student was satisfied with these arrangements, stating on his/her YouTube channel " I cannot complain...".  (p. 21)  Then the student began agitating for access to the girls' bathrooms and locker rooms.  Student X started using these facilities without permission and some of the girls were shocked and distressed to see a male-bodied person in their locker rooms.  Later on, in response to the Obama Administration's directives changing the meaning of "sex" in Title IX to "gender identity", the school district feared that it could lose all federal funding if it maintained sex segregated bathrooms and locker rooms.  The OCR had been aggressively enforcing this policy in other school districts around the country.  Student X was then told he could use all the female facilities.

As noted in the Complaint: 107. Under the District Policy, any student in any District school, pre-school through 12th grade, has unrestricted access to private facilities based on the students’ professed gender identity. 108. A student need not provide the District any medical or psychological confirmation of a diagnosis of gender dysphoria. 109. This Policy authorizes males to enter female-specific private facilities and vice versa for students aged three to eighteen (P. 23).
Complaints were made by both girl students and parents about the harassment, but the school did not reprimand the student.  Student X was allowed to use all facilities freely and the activities that the girls found harassing continued.  Some of the girls decided not to return to school, though they had previously thrived there. Others decided not to play sports they had previously enjoyed, some avoided using restrooms for the entire school day.  The Complaint alleges that these are all negative effects on the education of these girls of the harassment and the new policy allowing male bodied persons to use female facilities at will.

Title IX
Title IX is administered by the OCR, Office of Civil Rights, of the U. S. Government.  The definition they provide is:  No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

It would have been possible for the Plaintiffs to bring only sexual harassment charges against Student X.   The evidence presented thus far is certainly consistent with sexual harassment and the inaction of the school to prevent further harassing incidents as well as evidence that Student X was specifically targeting particular girls suggests that this is a case that could make it to trial.  However, both the Plaintiffs (represented by the conservative, religious Alliance Defending Freedom) and and Defendants (represented by the ACLU) are after bigger fish, particularly the definition of sex in Title IX.   It is this intertwining of the sexual harassment charges with the issue of how sex is defined under Title IX that makes this a more important case, but also, perhaps, prevented an easier solution that would permit all these students to get the most out of their high school educations.

An ACLU lawyer, Alexandra Brodsky wrote an opinion piece in the New York Times in October, 2016.  She characterized the case this way: "the complaint reads, heartbreakingly, as the story of a transgender girl acting like any other girl — dancing in the locker room, expressing insecurities about her body — in the face of rejection by her peers."  A Memorandum filed by the mother and Student X, after they were granted the right to intervene and become parties to the suit, says much the same thing:  "A small group of parents, acting through an organization they have named “Privacy Matters,” have now publicly singled Jane out from the rest of the team and used misleading innuendo and salacious phrasing to file a Complaint depicting the ordinary behavior of a teenage girl as threatening or scandalous just because she is transgender. The parents seek to take away her right to be an ordinary high school girl, marginalizing and segregating her from her classmates and teammates."  (p. 2)  Defendants seek to normalize the behaviors complained of, implying that all teenage girls act this way.  However, nowhere were these behaviors stated to be that of any of the other girls in the locker room.  It is not asserted that many other girls twerked to sexually explicit music in the locker room or engaged in the other behaviors enumerated in the Complaint and that only the male-bodied Student X was singled out as being harassing.  The ACLU and the Intervenors normalize the allegedly harassing behaviors in order to characterize the case as one of transgender discrimination under the new definition of sex promulgated by the Obama administration.

In February 2017, the Trump administration withdrew the Obama administration's directive changing the definition of "sex" to "gender identity" in Title IX.  This means that schools cannot now be threatened with withdrawal of federal funding, but it certainly does not end the fight. Many smaller government entities throughout the country have instituted this definition and incidents similar to this case are hotly contested in many schools.

Next blog:  The issue of privacy.  Does the "right to privacy" apply to junior high and high school students who do not want to use bathroom and changing facilities in the presence of people with sexual organs of the opposite sex?

Update:  Privacy Matters withdrew the suit voluntarily as the Trump administration withdrew the Obama era directive mandating that "sex" be changed to "gender identity" in Title IX and the school made accommodations to protect the privacy of the girls.  Privacy Matters retained the right to refile the suit.

The author is a scientist and teaches the great books at St. John's College.  She has a child who identifies as transgender.  She knows that the law is an imperfect instrument and that judges are influenced by their own prejudices and ideologies.  Nevertheless, the law gives us an important venue for presenting facts, asking questions, and making decisions that can illuminate important social issues.



Creative Commons License
Civil Rights in the Age of Transgender Youth by Linda Wiener is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.