01/30/2012 03:24 pm ET Updated Feb 02, 2016

Incrementalism and the Folly of Marriage Before Nondiscrimination Laws

Could you imagine if the AFL-CIO wanted a law that prevented city governments from imposing contracts on unionized workers, except for bus drivers? Because, well, Americans believe in equal treatment and respect for a union's right to organize, but there are some people who don't quite understand bus drivers and why they want the same rights as the rest of the unions... I mean, police, firefighters, sure, we've gotten used to them, we like them, but bus drivers haven't done the education necessary.

They'd be laughed out of the room. A union, an organization, tries to improve outcomes for all its members. Now, sometimes they have to negotiate with different employers, and different employers would only allow so much on the basis of what public pressure would require, but when it comes to governments and laws, the union, and for that matter the Fourteenth Amendment, would blanch at the notion that there is one group of people who deserve protection under the law and one group of people who don't.

And every time people allow a situation where rights are bifurcated on the basis of the relationship between assigned gender and identified gender on one hand and assigned gender and sexual attraction on the other, we have problems.

When a state that hasn't gotten around to passing fully inclusive nondiscrimination protections decides to focus on extending the definition of marriage, that's all well and good for those who already have nondiscrimination protections, but consider this:

If you're not covered under nondiscrimination law, how are you going to compel someone to grant you a marriage license in the first place?

If you're not covered under nondiscrimination law, how are you going to safely use the public accommodations at the hall you booked for your wedding reception?

If you're not covered under nondiscrimination law, how are you going to rent or buy a home for the two of you to live in as spouses?

And if you're not covered under nondiscrimination law, how can you get a job that you're qualified for in order to afford the ring in the first place?

That's why, when there's a certain species of incrementalist who claims that expanding the definition of marriage helps people who haven't even got statutory nondiscrimination protections, I cry foul. (Well, I do worse, but there are some restrictions on the language that I can use.)

There are two kinds of incrementalism. One relies on removing some of the more controversial protections and rights that a law may grant, and one relies on removing some of the more controversial people that a law may protect. One is realistic and allows for future gains to be made. One is coddling bigotry at best and unworthy of organizations that purport to represent everyone.

If you really are trying to ensure that people have equal rights on the basis of both sexual orientation and identified sex, and you truly believe that the bigotry against both comes from the same source (and it does, just as the science around prenatal endocrinology suggests the variance does), then you have absolutely no moral authority to say that rights won will only apply to some of that group.

You would call a bifurcation of those rights to be folly at best and an intolerable injustice to your brothers and sisters that must be rectified.

But too often in the TLBG community, we don't see that. We see instead recrimination and an arbitrary definition of "normal." The most common one is cisGL groups that spend one second talking about marriage while there are still nondiscrimination rights to win, which is especially foolish, considering that no state that has yet to enact statutory nondiscrimination legislation has granted same-legal-sex marriage rights, and only New York and New Hampshire have same-legal-sex marriage statutes without fully inclusive rights legislation. Note the emphasis on legal sex, because there's something else I want to talk about in New York, and another intracommunity tussle that puts bigotry and I-got-mine-ism above respect for everyone's human rights.

New York has a statute, which is currently under challenge, that refuses to recognize the identified sex of people if it is at variance with their assigned sex, unless the person in question has had genital surgery to bring their genitalia in accordance with the act's expectation of what a person's genitalia should look like, given their identified sex. There's an overwhelming majority of activists in the trans community who think this legislation is terrible, and a significant majority of activists in the wider LGBT community, as well, but let's read what Dana Lane Taylor of TS-IS Liberation has to say:

People always assume I have various stances on things without actually ever seeing the proof. I don't consider myself "HBS/Classic Transsexual" nor do I push that on people. My philosophy is basically that if you claim to be a women who was born in a male body and you don't want to repair this birth defect, you might not be a woman. Why would someone not want to fix this? I do have issue with those who claim a non-op status due to financial reasons. There are a lot of us who are fighting to get rights for medical treatments that are mandatory and to have insurance companies cover this treatment as they would for any other medical condition. Claiming that surgery is optional destroys this effort. This is a serious issue! Those with transsexual histories, who are supporting the transgender community's non-op is an option argument are helping to tear down any possibility of reforming insurance policies. You have been assimilated into the Transgender Borg Collective and they are happy to have you there. And yes, I have been lobbying my employer to remove the exclusion of mandatory triadic treatment from their health insurance policies so I take it personal. Do I not have a right to be angry at those who are damaging these efforts? I damned sure do! Yes, I am very angry about it.

She's wrong. She's wrong with the heat of 10,000 suns, just as wrong as a cancer patient assuming that the existence of radiation therapy is making it impossible to get chemotherapy. She's wrong for advocating for a second that surgery be a precondition for basic human rights. She's wrong for assuming that genitalia are gender, and just as wrong as a French Court that assumed that a trans woman had to have a certain cup size to be a woman, and I shouldn't even need to draw attention to this any more than any other Internet crank who isn't writing laws or cheques to those who write laws, but I wanted to make this pretty clear to some people who continue to hear "cissexual" when I say "cissexist," and vice versa:

Anybody in this community who believes that uniform progress in rights for anybody else in this community should be delayed is foolhardy at best and softshoeing their bigotry at worst. There's no reason that anyone in the trans community should focus on surgical access when informed-consent access to exogenous endocrine intervention is still restricted other than prejudice and self-interest. There's no reason that anyone in the cisGL community should put the rights of those in legally recognized relationships ahead of those in equally committed relationships or on the basis of gold-star status, and there is no legitimate legal metric by which one woman is judged legally woman and another woman is not based on demarcation by birth or surgical assignment. Just none.

That means that we have a pretty clear idea of what constitutes a hierarchy of needs, and where basic-order needs are filled, we start by filling in the glaring gaps in who is reached:

  1. The right to a basic standard of living not conditional on how we identify, who we love, or how we present.
  2. Nondiscrimination in law, employment, housing, public accommodations, and medicine, in roughly that order.
  3. The right to public education that affirms that we exist and have existed for as long as there has been recorded history.
  4. The right to equal treatment in relationships and socially, legally, and politically.
  5. The right to recognition of equal treatment, by eliminating bifurcation in nomenclature surrounding that equal legal treatment.

In. That. Order.

This is why I'm ecstatic that Washington looks like it's going to get same-legal-sex marriage passed soon... and why New York made me pull my hair out when it did the same. It's also why, while outraged at the contempt shown for Christie Lee Littleton during her contested probate, I find it hard to get exercised about someone's right to be married as their actual sex when there's no nondiscrimination legislation of any sort in Texas.

Now, don't get me wrong: if a bill gets introduced that moves us closer to equality, I'm going to push for it, and I'm going to recommend that people support it, but at the same time, the animus, the motivation, the lobbying, has to focus on incremental progress for all instead of total progress in order of who is "most deserving" of basic human rights. When an LGBT organization spends time on DOMA to the detriment of ENDA, it's ignoring the rights of working-poor GBLTs, cis or trans, for the concerns of those who are already self-insured against discrimination. When a cisGLB activist hails DADT's repeal as meaning nobody will be arbitrarily discharged, they betray a complete lack of concern or understanding for trans issues. When assimilationist trans people oppose a conception of trans identity, or for that matter workplace presentation protections, that aren't all-operative all the time, they degender people like themselves, and they degender their whole lives before that sanctification by scalpel, by damning every trans person, every gender-variant person, who does not live by the knife. All of these approaches are bad for civil rights, they're politically stupid, and, worse, they come from a place of self-hate, the idea that some of us deserve rights because we're sufficiently normal, never mind citizenship as a metric. And what's ironic: all three of the people I just mentioned will accuse me of an unrealistic and radical agenda.

But my agenda is simple: equality for all, coming to a state near you!

...Though probably on an incremental basis.

UPDATE: An earlier version of this post incorrectly stated that no state with statutory nondiscrimination legislation has granted same-legal-sex marriage rights.