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The Coming Nightmare of a “Transsexual Rights
and Hate Crimes" Law in Massachusetts:

Why Bill H1722 Must Be Defeated

by Amy Contrada, MassResistance

Table of Contents

Text of H1722

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PART 2: "Gender Identity" Defined —
and How H1722 will Affect You

Proposed Legal Definition of “Gender Identity or Expression”

Section 7 of H1722 defines "gender identity or expression", using the same phrase as the radical lobby group Massachusetts Transgender Political Coalition (MTPC) in its literature:

The term “gender identity or expression” shall mean a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.

This definition implies that one’s sex at birth is not necessarily a biological fact or innate characteristic, but may be “assigned” by a medical observer or parent. (But true hermaphrodites or “intersex” individuals are very rare.) Note that “gender” (as distinguished from “sex”), “identity,” and “expression” are still not defined in the bill, though clearly are being used in novel ways. We are told only that “gender” means “gender.” Inadequate and absurd as this definition is, it’s also curiously buried in a middle section of the bill, instead of being made clear at the beginning.

This is a woman who has taken hormones to grow a beard who calls herself Diego Sanchez. A female-to-male transsexual activist, she is former co-chair of MTPC, an executive with AIDS Action Committee of Massachusetts, and was recently appointed as the first “transgender” on the Democrat Party national Platform Committee. (Bay Windows photo)

Under H1722, who (or what) “identifies” a person’s “gender”? Not an objective outside observer, such as an M.D. or a psychiatric professional or biological fact, but the individual in question. Note that the word “sex” is not used, apparently because that is attached to the biological reality which is being denied. “Gender” allows more wiggle room. The radicals claim a “binary gender” system (i.e., sex is either male or female) is inadequate to describe their experience. This non-definition would add more layers of confusion to our laws which already contain the radical term, “sexual orientation.” Both of these vague concepts, purposely undefined in the law, will surely come back to bite us in our courts.

The recent advocacy book Transgender Rights (2006) says that the legal definitions are purposely left wide open by the activist attorneys drafting legislation, to allow for yet unknown directions in which the trans movement, or an individual, may want to head. Again, note that the individual is in charge:

. . . transgender activism is informed by a realization that the continuing democratization of gender power relations requires the preservation of an ‘empty space’ in the law. This political commitment may in part explain the decision to write nonidentitarian language into some of the more recently enacted trans antidiscrimination laws. . . . Importantly, these laws recognize that the right to gender self-determination encompasses the right to indetermination. This means that protections against discrimination on the basis of gender ‘identity and expression’ must extend to those ‘whose gender expressions are so complex they haven’t even been named yet,’ to those who do not care if their gender identities are ever given a ‘name,’ and, at the limit, to those ‘gender atheists’ whose gender cannot be named because they do not live their lives as gendered human beings. [emphasis added]

Transgender madness: “Diego” Sanchez, female-to-male transsexual, former co-chair MTPC; “Holly” Ryan, male-to-female transsexual, current co-chair of MTPC; “Grace” Sterling Stowell, male-to-female transsexual, Exec. Director of BAGLY and Vice-Chair of Commission on Gay and Lesbian Youth; and a young “transgender” ally at a MassEquality party (2006).

The National Gay and Lesbian Task Force also advises vagueness in the legal definition, to allow for whatever may come. As they say in their 104-page lobbying document Transgender Equality - A handbook for activists and policymakers :

In sum, the legislation has to accomplish two things at once. It has to be clear and specific enough to make it obvious that that the purpose of the law is to prohibit discrimination against transgendered people. At the same time, the language used to define transgendered people has to be flexible and general enough to ensure that the full range of transgendered identities are protected. Experience has shown that it is impossible to list all of the different types of transgender identities that exist now or that may exist in the future. Experience with other types of civil rights statutes has also shown that courts typically interpret such lists to be exhaustive and will likely refuse to extend protection to particular types of transgendered experience not specified. In light of that experience, the safest course is to include at least some general language that describes the prohibited discrimination in broad terms. [emphasis added]

An earlier MTPC “Talking Points” document, prepared for the Boston anti-discrimination ordinance, gave this ridiculous definition:

The term “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related appearance, or gender-related expression whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with one’s sex at birth.

MTPC’s explanation of its 31-section bill is vague, short on particulars, and appeals to “fairness” and “victimhood” status. Some excerpts from their web site:

Summary and Background
The Act Relative to Gender-Based Discrimination and Hate Crimes of 2007 clarifies and updates Massachusetts' non-discrimination laws to ensure that they clearly and uniformly protect all people regardless of their gender identity or expression. This bill adds the category of "gender identity or expression" to our hate crime laws as well as to the employment, housing, credit, public accommodations, and public education non-discrimination laws.

The Massachusetts Commission Against Discrimination ("MCAD") has already clarified that state law currently protects all individuals, including transgender persons, from discrimination based on gender identity or expression. This bill makes those protections explicit, uniform, and visible to the general public. This bill also amends existing hate crime laws to explicitly protect people targeted for violence and harassment because of their gender identity or expression.

Why is this bill necessary?
Transgender people in Massachusetts face high levels of discrimination and violence because of widespread prejudice and the assumption that transgender people are "outside" of the law's protections. This bill amends both non-discrimination laws and hate crime laws in order to comprehensively make clear that transgender individuals have equal protection under the law.

Jennifer Levi, herself transgender, is GLAD’s Transgender Law specialist and is helping to lobby for H1722 at the State House. (Photo: GLAD website)

Bill H1722, where it quotes current law, reminds us that the term “sexual orientation” is not defined in Massachusetts statutes, except in one particular. The only “orientation” that is specified is the one we are allowed to discriminate against: “persons whose sexual orientation involves minor children as the sex object.” (There is actually a wide range of medically recognized sexual orientations.) Except for this admission that pedophilia is a “sexual orientation,” that phrase is wide open to interpretation, as will be the new phrase, “gender identity or expression.” Some MCAD and court rulings have already upheld radical GLBT demands, and vague terminology will surely open the door to sympathetic activist judges who will grab the chance to reshape society.

Everyday Scenarios, Sections 3-31 of H1722.

How would this new law play out in everyday life? It would make it unlawful discrimination for a citizen or employer to treat people differently who exhibit this recognized psychiatric disorder in their public lives. It would force normal citizens with traditional values to bend to abnormal and revolutionary concepts. It would put psychologically troubled individuals in charge of dictating to the rest of society.

Where now the everyday conflict scenarios described below may still be arguable in a court, if the new law takes effect there will be no possibility of argument. Citizens and companies will be guilty of criminal, unlawful discrimination, punishable by punitive settlements, fines and/or imprisonment if they "discriminate” against “transgender” persons -- including if they react in a normal, non-violent way to these unhealthy behaviors, which could be seen as negative, critical or intimidating by the transgender persons.

There are unpredictable dangers lurking in the proposed terminology, “gender expression.Just as it’s up to the individual to define his or her “gender identity,” he or she will be able to claim that any behavior is his/her “expression” of that self-determined “identity” and is protected in the law. It could apply to anything, whether a private or publicexpression”. Besides cross-dressing, this could logically open the door to public sex acts on the street and public displays of BDSM including whips and chains, sadomasochism -- both of which recently took place in San Francisco’s Folsom Street Fair. Or polyamory (multiple partners), and eventual demands for legalized polygamy. Or sex for pay (legalized prostitution) and “sex slave” arrangements. Or public displays of nudity or semi-nudity (as already seen in “gay pride” parades).

This is not as far-fetched as it may seem. Bay Windows (Boston’s GLBT newspaper) recently ran a story on sex in public places. GLAD, the legal group pushing H1722, held a radical forum called “Sex on the Margins” (Jan. 23, 2008) to push for more “gay sexual freedom” (including public bathroom sex). Rep. Byron Rushing, one of the lead sponsors of H1722, has also filed a bill to legalize sexual activity in restaurants and taverns. Recently, the Boston area subway system saw hundreds of young people taking part in a “guerrilla” event called “No Pants Day” (January 2008) when they rode the subway with only underwear – and the local police let it roll.

Police are already refusing to enforce laws about public lewdness in public bathrooms, highway rest stops, or parks (“cruising” for anonymous “gay” sex). Meanwhile, the ACLU is defending Idaho Senator Larry Craig on free speech grounds for his solicitation in a public restroom. Homosexual males have long challenged police intrusion into cruising scenes, as a violation of their right to free sexual expression. And prostitutes are now referred to as “sex workers” by these radicals; sex for pay is just another way to make a living. If all these activities come to be considered “gender expression” by some judge, who’s to argue? The legal definition was left vague in H1722 for exactly such purposes.

This is not about protecting a man’s right to put on lipstick in his home or use women’s underwear for sexual arousal in a private situation. (Sick as that may be, no one is policing that now.) This bill is about a man "transitioning" from male to female (or vice versa) in his life outside of the privacy of the home, transgressing on the rights of others: a man wearing a dress in public, in a church, at work (even if he teaches in a public school), and expecting his employment benefits (or the state health insurance) to foot his transition costs. And he can’t be described as a cross-dresser, or accused of not following the company gender-based dress code, because since he is allowed by law (H1722) to decide he is a woman, therefore he’s not a cross-dresser! The next day, if he’s “bi-gendered,” he might decide to come to the office dressed as a man, just to keep things interesting. And the law will protect him.

This bill is about a woman who decides to have her breasts removed and parade as a “male” in the street, with her scarred chest bared. Now, such things happen only in “gay” neighborhoods or “pride” events. Soon, you could see a de-breasted woman walking around a suburban neighborhood or family beach, just as men now do, without a shirt – and you will not be able to complain because it’s “gender expression.” Since she identifies as a male, she is a male, and she’s no longer a female bearing her breasts – which are no longer there in any case. And you will have to “celebrate diversity” and tell your little daughter that she, too, might grow up some day and not have breasts.

Young "transgender" women who had their breasts surgically removed marched in the streets at Boston Pride 2004. Caption reads: “It was a nice night to doff your shirt.” Sign reads: “Tranny Bois are here.” (Massachusetts high schools have already invited “tranny bois” in to discuss such transitions with students.) [Photo: Bay Windows]

This bill is about criminalizing free speech against bizarre behaviors. No public accommodation can post any notice of anything critical of this newly designated “civil right” of public “gender expression.” No facility will be able to deny a man who thinks he’s a woman from using the women’s restroom. Churches and individuals will lose their religious freedom to object to transgender behaviors. Business managers will lose the ability to choose personnel suited to their particular environment or clientele, no matter what it does to their bottom line.  Sensitivity training at work will normalize cross-dressing and "transitioning" employees. Employers and insurers will have to cover sex change transition costs as a medical benefit. Religious hospitals will be forced to perform sex-change surgeries. The public schools will normalize this psychological disorder to our children in the public schools, and expose them to unimaginable stresses (as even our youngest children are forced to imagine the removal of body parts as a healthy and reasonable option).

: A closer look at individual sections of the bill - Public Accommodations.

Copyright 2008 MassResistance