Feminist Reform Toolkit
Does [the theory, idea, strategy, law being proposed or advanced] materially improve the lives of women, and if so, which women and how many? And where? And how quickly? And can we understand it?
Does it build an individual woman’s self-respect, strength and confidence? [If it is a theory] what is the price we must pay to master it?
Does working for it give women a sense of power, strength and imagination as a group and help build structures for further change?
Does it educate women politically, enhancing their abilities to criticize and challenge the system in the future?
Does it weaken patriarchal control of society’s institutions and help women gain power over them? And does it enable/encourage us to construct alternative institutions? Or does it replicate [patriarchy]?
–Charlotte Bunch, in The Reform Tool Kit, Building Feminist Theory: Essays from Quest, A Feminist Quarterly, New York, 1971
In recent weeks debate has been raging over the Employment Non-Discrimination Act (ENDA), a proposed federal law that would prohibit discrimination against employees on the basis of sexual orientation. The bill passed by the Education and Labor Committee last week, H.R. 3685, excluded the following “gender identity” language which was part of an earlier version of the bill, H.R. 2015:
The term `gender identity’ means 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.
The bill now goes to the House Rules Committee, where Representative Tammy Baldwin (D, WI) will attempt to introduce an amendment returning this language to the bill.
Following is a woman-centered, feminist analysis of the issue of inclusion of these “gender identity” provisions in ENDA, written by Davis, a good friend and colleague of mine who is a feminist attorney, over the course of an online debate. I put it all together because it is brilliant and insightful and I think it deserves a much wider reading. — Heart
The assertion that we need to put trans in the ENDA to protect “gender variant” people of all stripes is false. Sex discrimination law already protects men and women from that form of gender discrimination. So-called “gender variant” behavior is already protected under current Title VII law through good old-fashioned sex discrimination law. It is already illegal to discriminate against women because they’re not feminine enough or too masculine, or against men because they’re not masculine enough or too feminine. In Hopkins v. Price Waterhouse, Ann Hopkins sued precisely because of this type of discrimination: not being feminine enough, not wearing make up, wrong haircut, etc. In short, Hopkins was discriminated against because she was “too masculine”. That’s exactly what Hopkins and Title VII forbids, as does Smith v. City of Salem, a 2006 case finding discrimination against a transsexual woman illegal under Title VII because it was illegal sex stereotyping as defined by Hopkins.
Under Title VII, if I don’t wear makeup, am “too aggressive” or do anything that society thinks of as “masculine”, and my employer discriminates against me because I’m “too masculine” or not “feminine enough”, I can sue for illegal sex stereotyping discrimination as the woman I am. Title VII says, you don’t get to discriminate against people because of how you think men and women should act or be.
Under ENDA*, if I don’t wear makeup, am “too aggressive” or do anything that society thinks of as “masculine”, I am automatically presumed to be demonstrating some “gender expression” to go with a “gender identity”, presumably an identity that’s masculine or “man”, whether I actually have that identity or not. Everything I do and am, becomes about my supposed gender identity. ENDA forces gender on me, because [in order to be included in its scope], I have to go along with the assumption that what I’m doing is antithetical to my biological sex, i.e. a gender identity that isn’t “womanly”.
This is a prime example of the totalizing and hegemonic nature of trans theory: everybody has a “gender identity” that they show through gendered behavior, clothing, expression, etc. — which is EXACTLY what ENDA says and imposes.
You may think that what I’m wearing is about “gender expression” and “gender identity”. I don’t. And why should I have to accept what you think about me to be covered by anti-discrimination law? That in itself is discrimination. But that’s how ENDA is being proposed to work: every woman who isn’t stereotypically feminine is presumed to be expressing a “gender identity” at odds with her physical self, i.e., meaning “man” or masculine.
The protections against sex-stereotyping already in Title VII and case law protect me, a non-trans, but not stereotypically feminine woman, from bigotry, without me having to claim a trans identity or any kind of gender identity at all. Title VII protects me as the woman I am. ENDA would not do that. In order to get protection under ENDA, I have to get shoved into the box where everything I am and do is seen through the lens of “gender identity” In ENDA, gender identity isn’t actually limited to what we think of as gender identity: i.e., the internal sense of self as a man or woman. “Gender identity” extends to what we look like and how we act and “other gender-related characteristics.” It imposes gender on people and gendered explanations on everything everybody does.
Under Title VII, I don’t have to point to myself, I can just say that the discriminator is wrongfully imposing gender/sex stereotypes on me. Under ENDA, the stereotypes are accepted as true and I’m the deviation from the gender norm. By protecting “gender identity” in the way it does, ENDA presupposes proper gendered behavior and marks everybody who deviates from it AS a deviation from those gendered norms.
I don’t need to be protected on the basis of my “gender identity” because I’m not trans. Anything like “gender identity” protection won’t protect me because I don’t have a gender identity problem. To the extent I may be deemed too masculine, or too unfeminine, I’m already protected as the woman I am. To sue for gender identity discrimination, in my case, would be a lie because it’s not about gender identity.
Gender identity provisions will NOT protect women because women don’t have a gender identity issue. We are women. To the extent that we may be deemed too masculine or not feminine enough, we are already protected. To push the falsehood that women need the protection of a trans-inclusive ENDA is to co-opt women’s lives and deny the reality of our lives. Gender identity discrimination is NOT the same thing as discrimination because one does not meet gender stereotypes. Transgender advocates should conflating them for their own purposes and should stop co-opting my life to push their agenda. If transgender advocates don’t think that their lives are enough to support their own political agenda, I’m sorry, but that’s their problem. They don’t get to take over my life for their ends.
*References to ENDA above mean ENDA which includes “gender identity” langage
Go here, here, here, here and here for analysis of the history of dissensions and conflicts between progressive people which ENDA has brought to the fore, and which is a bit more substantial than standard blogosphere fare, i.e., “Whoever disagrees with a trans-inclusive ENDA, or with any position at all that is not rubber stamped by the ‘T’ contingent of ‘LBGT’ must be quickly decried as a bigot/transphobe/insert-hated-persona-du-jour here.” That kind of rhetorical hammering has silenced far too many intelligent voices, for far too long, women’s voices especially. Maybe there’s a change in the wind. — Heart