THE BLOG
05/09/2016 05:41 pm ET Updated Dec 06, 2017

Tears of Gratitude -- The United States Publicly Embraces the Trans Community

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I don't cry much these days. I cried myself out as a child, praying to be magically transitioned. I cried myself out from the pain of being an intersex adolescent menstruating through a urethra, and from the barbaric treatment I underwent for over six months at the hands of ignorant medical professionals. I cried myself out throughout my adulthood of providing for my family while denying myself.

I don't cry much these days. I cried today. I may even tell the Attorney General that she made me cry today.

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Today was the trans community's 60s civil rights moment, that moment when the United States government stood tall and proud and told a state of the neo-Confederacy that they were in violation of multiple laws in their pursuit of transphobic discrimination.

There was no hemming or hawing, no use of euphemisms. Vanita Gupta, the Assistant Attorney General for Civil Rights, followed and stated clearly -

Transgender men are men - they live, work and study as men. Transgender women are women - they live, work and study as women.

I've never heard that before from any federal official. They've always spoken with a literary turn of phrase, such as "the right to live as yourself and love whom you choose." Today Governor McCrory was given it straight.

What follows is Science, as understood and promoted by the federal government. From the complaint:

Gender Identity and Its Relationship to Sex

30. Individuals are typically assigned a sex on their birth certificate solely on the basis of the appearance of the external genitalia at birth. Additional aspects of sex (for example, chromosomal makeup) typically are not assessed and considered at the time of birth, except in cases of infants born with ambiguous genitalia.

31. An individual's "sex" consists of multiple factors, which may not always be in alignment. Among those factors are hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual's internal sense of being male or female.

32. For individuals who have aspects of their sex that are not in alignment, the person's gender identity is the primary factor in terms of establishing that person's sex. External genitalia are, therefore, but one component of sex and not always determinative of a person's sex.

33. Although there is not yet one definitive explanation for what determines gender identity, biological factors, most notably sexual differentiation in the brain, have a role in gender identity development.

34. Transgender individuals are individuals who have a gender identity that does not match the sex they were assigned at birth. A transgender man's sex is male and a transgender woman's sex is female. [My bold]

35. A transgender individual may begin to assert a gender identity inconsistent with their sex assigned at birth at any time from early childhood through adulthood. The decision by transgender individuals to assert their gender identity publicly is a deeply personal one that is made by the individual, often in consultation with family, medical and health care providers, and others.

36. Gender identity is innate and external efforts to change a person's gender identity can be harmful to a person's health and well-being.

37. Gender identity and transgender status are inextricably linked to one's sex and are sex-related characteristics. [My bold]

38. Most states authorize changing the sex marker on one's birth certificate, but the requirements for doing so vary and are often onerous. Specifically, many states require surgical procedures. At least one state does not allow persons to change the sex marker on their birth certificates.

39. Individuals born in North Carolina must have proof of certain surgeries, such as "sex reassignment surgery," in order to change the sex marker on their birth certificates. N.C. Gen. Stat. § 130A-118(b)(4).

40. Surgery related to gender transitioning is generally unavailable to children under age 18.

41. In addition, the great majority of transgender individuals do not have surgery as part of their gender transition. Determinations about such surgery are decisions about medical care made by physicians and patients on an individual basis. For some, health-related conditions or other medical criteria counsel against invasive surgery. For others, the high cost of surgical procedures, which are often excluded from health insurance coverage, present an insurmountable barrier.

42. Standards of medical care for surgery related to gender transitioning generally advise that transgender individuals present consistent with their gender identity on a day-to-day basis across all settings of life, including in bathrooms and changing facilities at school and at work, for a significant time period prior to undergoing surgery.

The suit ended with a list of attorneys, and the line:

ATTORNEYS FOR THE UNITED STATES OF AMERICA

As a physician and a scientist I have been advocating for such language for over 15 years. Sometimes people's eyes glaze over, sometimes they tune me out completely. And while there has been a strain of anti-intellectualism that is profoundly anti-science that has been in the ascendance since the rise of the Moral Majority in the 70s, and understanding of the science is, in the case of trans persons, essential to proper administration of the law.

Our legal advocacy organizations have understood this for years now. In the Schroer v. Billington case from 2009 Judge Robertson famously wrote:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only "converts." That would be a clear case of discrimination "because of religion." No court would take seriously the notion that "converts" are not covered by the statute. Discrimination "because of religion" easily encompasses discrimination because of a change of religion. But in cases where the plaintiff has changed her sex, and faces discrimination because of the decision to stop presenting as a man and to start appearing as a woman, courts have traditionally carved such persons out of the statute by concluding that "transsexuality" is unprotected by Title VII. In other words, courts have allowed their focus on the label "transsexual" to blind them to the statutory language itself. . .

In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker's sex stereotypes about how men and women should act and appear, and in response to Schroer's decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII's prohibition on sex discrimination.

Note that one of Dr. Paul McHugh's medical colleagues at Johns Hopkins, Dr. Chester Schmidt, argued that "sex" only means chromosomes when it comes to science. That's a pretty stupid thing for a scientist to say, and by 2009 the federal courts were clearly no longer buying it. Today that became obvious even to Governor McCrory, who knows he's on his way out, along with his culture. Maybe, just maybe, even the trans-exclusive radical feminists will wake up as well.

And to make his day even worse, the luck of the draw in the 4th Circuit brought Judge Boyle to the bench to hear the Governor's case. What he surely knows by now is that a year ago Judge Boyle (a Reagan appointee, of all things) ruled that a trans person who alleges discrimination on the basis of sex (gender identity) states a cognizable claim under Title VII. [See Lewis v. High Point Regional Health System, 79 F.Supp.3d 588 (EDNC 2015).]

I know this isn't the 1960s, and the struggle for trans rights is not the same thing as the struggle for civil rights based on race. However, as far as freedom and equality for minority communities goes, it sure feels like it. When I was a teen I could not understand how my African-American classmates felt, but I could empathize as a young Jewish trans girl. I feel empowered today to feel this way, because our Attorney General said as much. I will close with her words:

Let me also speak directly to the transgender community itself. Some of you have lived freely for decades. Others of you are still wondering how you can possibly live the lives you were born to lead. But no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward. Please know that history is on your side. This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy - but we'll get there together.

The Attorney General of the United States of America