I have just received the following from David Cameron, a Board Member with the Interesex Society Of North America. The Human Rights Campaign (HRC) has changed it position, and is now promoting inclusion of gender variance and expression in any future ENDA legislation. This change is an important step in the struggle for the rights of intersex and trans* people. Below, David raises important questions about including intersex rights in the legislative process. Your ideas and input are very important.

HERE IS DAVID'S MESSAGE:

"I was telephoned today by Boyce Hinman (chief lobbyist at the Lambda Letters Project in Sacramento). He wanted to know if the following Human Rights Campaign (HRC) policy wording about gender identity and expression was enough protection for intersex persons. I told him that I would poll others to find out. Originally, Lambda Letters project refused to support the HRC's wording in support of ENDA unless it included transgender and intersex wording. The HRC has included transgender but not intersex. Boyce doesn't want to agree to support the wording unless intersex persons feel protected as well. What do you think? I told him I thought having the term intersex in the wording was important since many intersex persons do not identify as transgender and as LGB for that matter. I thought it important to somehow clarify the difference between sex and gender would be important. But how to word it? Would sex identity and expression suffice?....


<<For Immediate Release:
Saturday, Aug. 7, 2004



HUMAN RIGHTS CAMPAIGN ADOPTS POLICY SUPPORTING MODERNIZED WORKPLACE LEGISLATION

'We are strongest as a community when we are united and that's why we need the strongest and most unifying protections,' said Cheryl Jacques, president of the Human Rights Campaign.



WASHINGTON — The Human Rights Campaign Board of Directors today adopted a policy to support a modernized version of the Employment Non-Discrimination Act.

The updated language includes gender identity and expression as well as sexual orientation to ensure that every gay, lesbian, bisexual and transgender American is protected from employment discrimination.

"Passage of ENDA is a brass ring for our community and we're making it clear that it must have the strongest teeth possible to protect everyone," said Tim Boggs, co-chair of the HRC Board.

The Board of Directors voted to adopt the following resolution: "The Human Rights Campaign adopts a policy that we will only support ENDA if it is inclusive of sexual orientation and gender identity and expression."

HRC took this step to ensure that ENDA will provide real protection to incidents of workplace discrimination. Attorneys who specialize in civil rights laws believe that ENDA without gender identity and expression explicitly stated may not adequately address discrimination against gay, lesbian and bisexual Americans who are often singled out because they're viewed as not conforming to gender norms.

"I am very proud that HRC continues to lead on issues of importance to everyone in our community, including on workplace discrimination," said Gwen Baba, co-chair of the HRC Board of Directors.

"We are strongest as a community when we are united and that's why we need the strongest and most unifying protections," said Cheryl Jacques, president of HRC. "The staff of the Human Rights Campaign will continue to work tirelessly to enact this comprehensive ENDA."

ENDA was introduced in 1994 and barely lost a Senate vote in 1996.

The Human Rights Campaign is the largest national lesbian, gay, bisexual and transgender political organization with members throughout the country. It effectively lobbies Congress, provides campaign support and educates the public to ensure that LGBT Americans can be open, honest and safe at home, at work and in the community."
>>


Thanks For Reading,

Peter

Why was this wording left out? Was there any reason given for this 'glaring ommision' - do people with an intersex (medical) condition deserve the same rights and protections as 'normal' or LBGT folks, or are we being marginalized because we don't have as big a 'voice' as either group? Inquiring minds want to know!

__________________
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no less than the trees and the stars;
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Like peter, I also received this email from David. Below is what I wrote back. If I was wrong with it, please let me know.



One of my issues with including it (and for LGBTI acronyms for that matter) is it presumes intersex as an identity or descriptive label and politicizes (and therefore polarizes as well) the issue.

I personally see the immediate issue as being one of eliminating cosmetic surgery and then building an intersex pride movement. The recent politicization of 'intersex' has not done much for the intersex movement and I believe it has even hurt the efforts to eliminate cosmetic surgeries. Fact is, most people with intersex conditions are heterosexual without gender identity issues and just living their invisible lives like anyone else with one exception---they are pissed about surgery that was done to them without their consent.

While it would be easy to say including "intersex" in this legislation would build a pride movement, I believe it would do nothing because it is something that no one would know about unless we tell them. The issues that someone "might" be fired for are gender expression and gender perception and the wording handles that quite fine.

If you were to get fired for being intersex tomorrow, it is very possible you would have a claim under the ADA. You can't fire people for medical conditions, which intersex conditions are---that is and has been illegal for several years.

Betsy

__________________
Until you've lost your reputation, you never realize what a burden it was or what freedom really is. --Margaret Mitchell

Thanks Wyn for your perceptive questions. As the old saying goes, "History is a numbers game". That saying explains why blacks in South Africa were able to achieve their freedom, but it will remain in many respects elusive for blacks in the United States. As for the details of the history of the evolution of the HRC position on ENDA, I don't really have any history.
I guess that on this issue, I have a different opinion than Betsy. Although I am somewhat undecided on the LGBTI formulation, I believe that intersex should be explicitly included in ENDA legislation. Intersex people are often outside the mainstream, and there is a "glass ceiling" for intersex people which keeps us out of high positions. If we do well, it is because we tend to find "nerdy" niches such as computer programer or other specialized technical skill.
In the early 1990's, I faced exployment problems with the United States District Court in San Francisco. Although many law clerks loved me, there were those who would write nasty emails about me to other law clerks about how strange I was. I really wish that there had been language that would have protected me as an intersex person. When the head of the court administration asked me if there were any problems, I mumbled something about being bi-sexual. I figured that I might be protected in terms of orientation. In retrospect, I regret having said what I said. Also, I believe that it is not enough to reduce intersex to gender expression issues. I don't particularly express myself in a gender variant mode. I am intersex, and that is something that people often find strange independently of sexual orientation and gender expression. I don't believe that being intersex is a medical condition unless you let the doctors define it as a medical condition, which we have done way too much of in the last fifty years. For thousands of years, and for the vast majority of intersex people alive today outside of advanced industrial countries, intersex people have lived free of the medical profession. There are intersex cases where doctors can help and if you need medical help because otherwise you might die, it should be available. But, why let doctors define intersex for the next fifty years? I don't want intersex to be filed away under the ADA. I don't believe that being born intersex is a disability. That's my two cents of rambling.

Peter

I don't believe it is either. However, there are many things that come under the ADA that are not disabling yet are covered by this legislation.

One of my main concerns with including IS too much with the politics of being queer (and I write this as a very proud and out lesbian) is it becomes just another reason for parents to see surgery as a 'cure' from being 'different'. The politics involved with this kind of skips over the main issues of surgery and immediately assumes there is an intersex pride movement, which has not really begun to take shape. Yes...what you see and read here is literally the founding steps of such a movement but it will be years before it becomes visible and pro-active within the mainstream. I do think it will happen a bit quicker than the 40 years it took the lesbian and gay movement. We are making change within society as a whole, but there is more that still needs to take shape. Throwing an I into the legislation proposed right now is confusing because most people don't have a clue what it is.



Was this because of how they 'perceived' you, how you expressed yourself, or because they knew you were born with an intersex condition? If the latter, how did they know?

Steven Hawkins is a brilliant person, but can you imagine what he would be if he used his disabilities as an excuse for it? It would have a scenario of him succeeding because of his MS, not in spite of it.

Betsy

__________________
Until you've lost your reputation, you never realize what a burden it was or what freedom really is. --Margaret Mitchell

I found this version which seems to be what is being discussed:

Section 3. Paragraph 9 defines gender variant:

http://www.ntac.org/enda1.html

I don't know if what is shown in the above link is finalized or in process or related to HRC "proceedings".

Dana

Cut and pasted from an email I sent to someone...

*****

I don't support the "inclusion" of intersex in ENDA.

1) When people say that they were discriminated because of their intersex condition, what they usually mean is that they were discriminated against on the basis of their perceived sexual orientation, gender identity, or gender expression. These discrimination should be treated and addressed as such. This is very important. The non-discrimination law should not protect people on the basis of people's identities, but on the basis of how others perceive them to be. For example, a straight person could be discriminated on the basis of his or her perceived homosexuality, and that person deserves the same exact protection as someone who is actually gay and is discriminated.

2) As more people come out publicly as "intersex," I believe that more will face discrimination for having that status. This needs to be addressed similar to the discrimination against people with disabilities. I think you could draw a parallel here between intersex people and people living with HIV/AIDS here: aside from all possible health issues to worry about, both groups have medical conditions that could make them vulnerable to discrimination and violence if revealed to the wrong people. This kind of discrimination should be addressed under the disability section of the civil rights laws. (And by the way, the ADA definition of "disability" does fit most if not all intersex conditions; how one "identifies" is irrelevant.)

I believe that we should focus on strengthening civil rights protections for transgender people and people with disabilities instead of mimicking the agenda and strategies of other movements. Just because some other groups felt something was important does not mean that it is for intersex movement.

***

By the way, NTAC has done nothing but to misrepresent intersex for years and have not responded to any criticisms (I wrote them, and half a dozen trans activists I spoke with did also). I really wish that they would stop mentioning intersex in any way because every time they do they spread some inaccurate stuff about intersex--and I'm talking about some basic "Intersex 101" stuff that all other trans groups "get."

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Thanks Emi for your post. I disagree with much of it, but your position is so clearly presented that I feel that I can argue with it freely. These are the kinds of issues that provide the "spice" to the topics posted here.

I think that intersex should be explicitly included in ENDA legislation. I agree that perceived status should also be included, because sometimes people are discriminated against because of perceived status even when they do not fit the catagory in the mind of the perpetrator. If a person is discriminated against because someone thinks that they are gay or transgender, then their perhaps not being gay or transgender should not be useful to the legal defense of the attacker. Much discrimination against intersex people is based upon our actual physical bodies. I believe that we should be explicitly protected. Non-discrimination laws often protect people on the basis of their identities. Sex and race are explicitly codified as identities under existing law. To say that race, sex, and gender status should have ENDA protection, but not intersex people is to perpetuate our second class citizenship. In the everyday legal world, the perceptions of the person or persons descriminating against others often counts for little. Bigots generally don't sit around and talk about the limitations of "identity" politics, except perhaps to say that certain people should not exist. The "reasonable woman standard" which is a cornerstone of ENDA law implementation was developed to get away from granting perception an important legal role. While I do not see a large employment class action suit brought by intersex people in the near future, our explicit inclusion in ENDA would give us a protected status that could form the basis of a class action suit. (Federal intersex employees would be a good place to start.)

A problem with lumping intersex under ADA is that ADA issues are very different than intersex issues. I totally support laws that protect the accommodation of people with disabilities in the workplace, but fail to see how that applies to intersex people. I know that there are intersex people who want gender neutral bathrooms, but that issue can be taken up again in another post, if so desired. Special bathrooms are the only special accommodations that I have ever heard demanded by intersex people. Also, ADA protects people in the hiring process, but how many times are intersex people not hired because they are intersex? (Being fired is a different story, and I have heard stories of people being fired for coming out on the job as intersex.)

I believe that the idea that intersex is a medical condition is a modern day cornerstone of our second class citizenship and general lack of human rights. Now, I fully realize that intersex people may need medical attention, but that does not mean that being intersex is a medical condition. I was talking on the phone this evening with an old friend, who used to be editor of the radical newspaper "Madness Network News". She agreed with me that the idea that intersex is a medical condition is a major obstacle to political progress.

Peter

Much discrimination against intersex people is based upon our actual physical bodies. I believe that we should be explicitly protected.

It is already protected under ADA and all state disability non-discrimination laws.

Non-discrimination laws often protect people on the basis of their identities. Sex and race are explicitly codified as identities under existing law.

That is not true. For example, white person who is discriminated because he or she "appear Latino" for example are protected from racial discrimination not based on their white family origin but based on their perceived racial classification. Identity has nothing to do with it; it's what the discrimination is based under, which has to do with how others perceive you.

To say that race, sex, and gender status should have ENDA protection, but not intersex people is to perpetuate our second class citizenship.

No. To say that "intersex" should be included in addition to "disability" is like insisting that they need to have the category of "Asian" in addition to "race." It makes no sense.

A problem with lumping intersex under ADA is that ADA issues are very different than intersex issues.

I'm not sure if you understand the scope of ADA or state disability rights laws. The "reasonable accommodation" you often hear ADA associated with is just part of the larger picture, which is ensuring everyone's equal treatment (i.e. no discrimination). Reasonable accommodation is important because without it there won't be equal treatment (what's the difference between being told that they won't hire you because of a disability or being told that they can't hire you because their building is inaccessible?), but the core of ADA is that it is against the law to discriminate.

Someone with a facial scar is protected from discrimination under ADA, even though most people do not consider a facial scar to be "disability" in ordinary usage. Here in Oregon, transsexual people are protected from discrimination because of the Bureau of Labor and Industry's (state equivalent of the federal EEOC) interpretation of the state disability law, even though most people--transsexual and nontranssexual--don't think of transsexuality is a disability per se. It has nothing to do with one's identity or whether or not one needs "reasonable accommodation."

But if you feel that ADA (or equivalent state law) is irrelevant to intersex, consult any lawyer. They will tell you the same thing. If you are discriminated because of your intersex status (and you can prove it), then you'd have a case under disability civil rights laws.

I don't think that we can ever make a convincing case for creating the entirely new protected class of "intersex," because we cannot document any actual case of "intersex discrimination" in employment, housing or public accommodation that aren't already covered by existing (disability) or emerging (gender identity and expression) statutes. Human rights abuses of intersex individuals in other aspects of life can be easily documented and that is where our legislative focus should be (see http://www.intersexinitiative.org/l...mendations.html )

I'm thinking about contacting EEOC to get an official clarification on the subject, because that would put an end to the myth that intersex people are not protected from discrimination. But I'm not-so-secretly waiting for the entire administration to switch to the new team next January before doing anything with the feds...

I believe that the idea that intersex is a medical condition is a modern day cornerstone of our second class citizenship and general lack of human rights.

If that is the case, then we need to change medicine as a whole, not just removing intersex out of medical discourse. Are you saying that it's wrong to treat intersex people as a second class citizen because it's not really a "medical condition," but it's okay to treat those who actually have a "medical condition" (such as cancer or AIDS) as second class citizens?

Perhaps not. Perhaps your point is that nobody should be considered to have a "medical condition." That would be an interesting philosophical point, but it would be unrealistic to expect the legislature to agree with you.

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