A Red State is "Detransitioning" State Employees--Like Me

It's been close to a decade since I legally gender transitioned.

While it was a great relief to finally live authentically in the gender I knew myself to be, transitioning was a process both challenging and tedious. I needed to have my name and gender marker changed in so many databases. This meant awkward interpersonal interactions. (For example, when I went to get a driver's license issued with my new name and gender marker, the person staffing the front desk at the DMV, apparently seeing me as insufficiently manly looking after just a few months on testosterone, responded by exclaiming in front of the crowd waiting in line, "What are you, some kind of pre-op?!").  It meant educating and cajoling and placating administrators of multiple bureaucracies who had never personally changed anyone's gender marker in whatever system they administrated, and were disconcerted to be asked to do so. It meant presenting my court order of name change and state ID showing my "M" marker over and over again.

Running the gauntlet of getting my gender transition acknowledged and implemented took months. It was tiresome. But I managed it, and moved on with my life. As my appearance shifted under the influence of hormone therapy and most people got used to addressing me as "he," the levels of stress involved in just living my life as myself slowly dropped. There were ongoing battles that remained, like my fight against the ban on insurance coverage for transition-related care in the policies offered to Wisconsin state employees, but the legal hassles seemed mostly behind me. I could mostly breathe free and just go about my business.

And for a brief moment, things really started to look up. After eight years of fighting with no success for insurance coverage for the trans care my wife and I required, policy directives under Obamacare forced my state to say it would lift the ban on transition care. The exclusion was to be lifted on January 1, 2017. But in November of 2016, Donald Trump won the presidential election, promising to repeal Obamacare and produce a total change in federal regulations. Now, my Republican governor and state legislature felt empowered to enact transpohobic policies. In December, the "Employee Trust Fund" or ETF--the agency administering all benefits programs for Wisconsin state employees--directed all insurers providing coverage to state employees to reinstate the ban on coverage for trans care.

For a family like mine, with two gender transitioners who had been waiting for many years to access additional care and get coverage for our HRT, that was more than depressing. But at least we saw it coming.

What came like a bolt from the blue was the notice I got a week ago.

It was a Friday afternoon. I'd just given a colloquium talk in my department. The week was winding down, and so was I, sitting in my office going through the day's pile of email--the usual questions from students about assignments and discussions about programming with instructors in the LGBT+ studies program I direct. Then I came across an email from my university human resource specialist, opening with a cheerful "Hello!" It informed me that ETF had changed their policy on gender transitioning in their system (which covers not only health insurance but all benefits, like disability, retirement plans, etc.). It stated that in order to "maintain a gender change," I had to provide additional documentation for myself and for my wife.

We were being detransitioned by the state, though I'd legally transitioned nearly a decade ago, and my wife started her transition in the 1990s. And we did not have the additional documentation demanded.

Reading this email caused an immediate feeling of shock at the attack on our identities. But let me note that reverting our gender markers to what they were years ago does more than emotional or psychological damage. And it impacts more than how others view our genders. For example, I have developed a neurological problem with my arm leading to partial loss of the use of one hand. I'll be seeing a neurologist in a few days--and a mismatch in my identification can mean denial of insurance coverage. That could be very costly to my family--but delaying needed medical care is costly in other ways.

Between a Rock and a Hard Place

Before I get to discussing the additional demands ETF is making, let me point out a very broad problem, and that is the idea that agents of the state can change one's legal status retroactively at any time. Imagine, for example, if the state decided that it wished to make it harder for people to get married, and so it imposed a new requirement--that in order to have a marriage recognized, residents would have to provide DNA evidence proving they and their spouse are not related (an expensive prospect). Then imagine that all married state employees were informed that their status had been reverted to single in employment databases and systems, because they had not complied with the DNA test requirement when documenting their marriages. That's not the way regulatory changes, mundane or shocking, operate--they are applied going forward, but not retroactively.

Now, as for the new procedures for gender transitioning, there are three requirements listed by ETF. The first is that the employee must notify ETF directly, providing their old and new names, old and new gender markers, ETF ID number, and a declaration that they are gender transitioning. Previously, employees notified HR at their place of employment, and employer HR staff changed the gender marker directly in the benefits system. But now ETF will centralize control over implementing transitions, and maintain a database of gender transitioners. In essence, we are being required to register with the state. As a Jewish person who lost extended family in the Holocaust, I find this extremely creepy.

The second thing trans people are required to do is provide "proof of identity," such as a driver's license or military ID showing the new name and gender marker. That's what we had to do in the past, and my wife and I can easily produce our Wisconsin driver's licenses showing our names and most correct binary gender markers. But now ETF is demanding more.

We are now being required to produce a third item, "proof of gender." This is very strange, because a driver's license already provides state-recognized proof of one's gender. Requiring more serves no purpose other than to make it harder for people to get their identified genders recognized. And the new "proof of gender" items are difficult and intrusive items to get.

Let's look at the options. One is a court order of gender change. To get one of these is difficult, expensive, and in many states, like Wisconsin, requires a doctor to testify that one has had surgical sex reassignment. Now, some people cannot have such surgery for medical reasons. Others do not want it--they desire social recognition of their identified genders, not a program of body modifications. And nonbinary gender transitioners often find they are denied access to surgeries. But let me underline that in any case, the very surgeries that ETF is making necessary in order to have one's transition recognized it has also categorically excluded from insurance coverage. My wife and I have been waiting for years to access some surgical interventions that would make our lives easier on many levels, one of which is being able to access things like a court order of gender change. But we can't afford them without insurance coverage. It's a Catch-22, and seems deliberately cruel.

Well. Instead of presenting a court order of name change, another "proof of gender" is a US birth certificate showing the identified gender. Now, in bluer states than mine, amending one's birth certificate sex requires just a letter from a doctor or therapist attesting that a person under their care is gender transitioning. A few states with reactionary policies, like Ohio and Idaho, do not allow birth certificate sex to be changed for gender transitioners at all. But most states, like Wisconsin, will do it for people who have had sex reassignment surgery which is documented in some particular way--in Wisconsin, it's by a court order of gender change. So we're back to square one, for my family and for so many gender transitioners.

What else will ETF accept as proof of gender? Another option is a US passport showing the identified gender. My wife and I have been trying for months to get the documentation we need to get passports issued in our lived genders, but have run into difficulties trying to get certified copies of legal documents. Hopefully these problems will be resolved in time and the rules for gender transition and passports won't shift under us before then. But even if we had them, this option as provided by ETF is highly problematic. Their policy requires that for a passport to "count" as proof of gender, the original passport must be mailed to an ETF P.O. box to be examined. It's crazy to demand that someone hand over their passport, via ordinary mail, with no specified procedure for ensuring its safety, no description of how long it will be held, no contact information given for an employee to inquire about the location of their passport should they not receive it back in a timely fashion, and most of all no explanation as to why the original document has been demanded, rather than just shown to the employee's HR office. So, even if we did have passports, we wouldn't want to mail them off to ETF as required.

Finally, there's the alternative of mailing a letter from a care provider as "proof of gender." At first, this seems the go-to option. Letters from medical practitioners and therapists are employed in many transition contexts. But there are two problems with ETF's letter option. First, ETF will only accept a letter from someone with a doctoral-level credential. The clinic where my wife and I get our medical care is staffed solely by (very competent!) nurse practitioners, with masters-degree-level credentials. So our care provider isn't allowed to write a letter for us.

But there's something more insidious, and that is the content required in the letter. Transition letters are commonplace, and they follow a standard format intended to protect the private medical information of the gender transitioner. The care provider writing the letter makes only a general statement that "appropriate clinical treatment" has been provided. But ETF demands that the letter writer explain what that treatment was. This is none of their business! Moreover, ETF is staffed by bureaucrats and accountants, not medical personnel qualified to review such information.

There's no justification given for the letter to disclose such highly personal information. But given what we've just experienced in terms of retroactive de-recognition of our gender transitions, there's reason to fear. It may be that if certain medical procedures are not listed in the letter, even if the letter is accepted now, at some time in the future employees might find their gender transitions reversed in state records yet again.

Ugh.

So, I've been trying to mobilize my university HR to push back against the detransitioning of me and my wife in the benefits system, and against the imposition of onerous and atypical requirements future gender transitioners. A conference call is planned between ETF and HR administrators. We'll see what the outcome is, but one piece of information I have been given so far by the head HR administrator at my university is that apparently my wife and I are the only people to whom ETF directed a notice be sent that our gender transitions would be reversed unless we produced additional documentation, at least as far as he could determine.

There are two interpretations I can give this disconcerting bit of information. Both turn on the fact that I am quite open about being trans, run an LGBT+ studies program, and as an academic who researches intersex and trans issues, have been interviewed by the media numerous times to provide commentary on related news stories. The first interpretation is that some ETF staffmember has been tasked with identifying trans state employees to receive detransitioning notices, and as I'm simply particularly visible as a trans employee of the state, I and my wife were the first identified. And the other is that because I am a critic of transphobic policy initiatives, my family has been personally targeted in retaliation--which is a pretty unsettling possibility. I suppose there's a third scenario--that every other trans person who is a state employee or receives benefits as family member of a state employee presented their HR office with a court order of gender change or amended birth certificate when they gender transitioned. But given that there are almost 300,000 state employees, how hard it is to get those documents, and the fact that they were not considered necessary until now, this seems extremely unlikely. It's an anxiety-inducing situation to find oneself in under any interpretation.

In any case, the short story is this: around the US and the world, as trans rights have advanced, insurance coverage for transition care has become commonplace, while changing gender markers has shifted to being based upon gender identity, not any particular physical sex characteristic or its modification. States like Wisconsin were lagging behind the curve, but progress was being made. Yes, there were backlashes, like the flurry of so-called "bathroom bills," but under the Obama administration, these were federally identified as discriminatory.

But like so many things, a lot has changed fast. And trans people are among those finding themselves besieged.

And that's how I find myself facing detransition by an agency of the state.

Doors Slamming Shut on Trans Care

A Preamble

So much has happened so quickly since the Trump inauguration, so much of it damaging to marginalized people, that it's difficult for folks to keep up with what is going on. That is clearly the intent of Trump puppeteer Steve Bannon, with his desire to produce shock and awe, stir up society like an anthill, and remake it in his nasty image.

With so much going on, it's important that we make and listen to reports from the many fields of struggle, which is why I'm writing this post. But I do want to preface my report with a call for unity. We've been set up, by this initiation of battles on many fronts via tweets and executive orders. Our opponents in Washington hope to divide us. They hope that we'll splinter into "interest groups," each demanding primacy and seeing calls for help and attention from other embattled groups as acts of betrayal. Remember, the concept of "divide and conquer" is as old as the hills. 

None of us can fight every battle--but we can support one another's efforts. We have to focus our individual efforts on what we can do best to resist in our local communities, with the skillsets we each have. But we also need to have one another's backs.

So: I make this small field report, not to distract people from protesting the ban on refugees and travelers from seven Muslim-majority nations, or from pushing their representatives in Washington to oppose the nominations of unqualified ideologues to head federal agencies, or whatever other actions people are engaging in. I make it because we must keep one another informed of all the negative changes that are taking place. That's what we need in order to keep taking positive steps to resist.

A Trans Report from the Midwest

I am an employee of the state of Wisconsin, teaching at a state university. About a decade ago, the University of Wisconsin system added to its nondiscrimination clause protections based on gender identity or expression. Yet the insurance plans offered to people working and learning at University of Wisconsin schools all banned coverage of "procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment." I've been fighting that ban ever since.

Until the summer of 2016, I got nowhere. It was a strange battle, because at every turn, I encountered expressions of surprise and sympathy from colleagues and benefits staff and administrators in the University of Wisconsin system. Colleagues presumed transition care must be covered by our insurance, since our antidiscrimination policy bans discrimination based on gender identity, and that must mean what it says. Human resources staff presumed the denial of coverage in our insurance plans must have originated with the insurance companies, and be their national exclusion policy. Upper university administrators saw that the discriminatory medical exclusion came from on high--proclaimed for all state employees by an entity called the Employee Trust Fund. But they regretfully stated that the university system couldn't tell the state what to do. They promised to bring the exclusion up as an issue to be addressed at the state level should an opportunity arise.

And so, year after year, I'd repeat this process of approaching people at various levels, reporting on the ongoing discrimination and asking for their help. I'd speak to them personally, and tell them how my family was impacted. With two gender transitioners and two disabled people in the little family of three I support, we couldn't afford any uninsured surgical care, and the lack of coverage for our trans endocrinological care was costing us between $1000 and $2000 a year out of pocket. Between our other medical expenses and the big hit my take-home pay received when the state withdrew much of its benefits support, my family's savings disappeared, and we have been sinking further and further into debt. And not being able to access surgical transition care is not "just" some issue of psychological discomfort for my wife and myself. It means relying on antiandrogens for year after year, with side effects that can be cumulative. It means relying on the extended wearing of chest binders for year after year, with their restrictions on breathing, exercise, and risk of rib injury. It means if we fly, we regularly get stopped by airport security and detained due to our "anomalies."

And year after year, the people I contacted would express sympathy, but do nothing.

Then, in the summer of 2016, the U.S. Department of Health and Human Services posted the "Final Rule to Improve Health Equity under the Affordable Care Act." And one of the things this document said was that health insurance could not discriminate on the basis of gender identity or expression. Blanket exclusions of transition-related care were stated to be unacceptable discrimination.

And lo! Based on this federal guidance, the Employee Trust Fund, the entity declaring policy for state benefits programs, instructed all the health insurers providing insurance to state of Wisconsin employees to remove the ban on trans care.

In the fall of 2016, my family received a letter from our insurer stating that the ban on coverage for transition-related medical expenses would be lifted on December 1, 2017. We put the letter up on the fridge and celebrated.

And then Trump won the election.

I wrote a social media post a few days after the election saying to watch out, because I bet that trans medical care coverage would disappear for people in red states soon after his inauguration in January. A batch of people replied in comments saying that of course things were uncertain, but that I shouldn't be so alarmist. Once rights are granted, they are very hard to take back, they said. Insurers wouldn't want to look bad. If insurers did try to put back blanket bans, they'd face years of lawsuits. And anyway, Trump said he was ok with Caitlyn Jenner using the women's bathroom in Trump Tower.

Who was right? Well, it seems under the Trump administration there is no such thing as an alarmist progressive worry.

What followed Trump's election in Wisconsin was an immediate flurry of activity in the state health insurance regulatory world. Insurers, who a couple of months ago had sent out sunny letters about how they did not discriminate and offered wonderful health care coverage to all, regardless of gender identity, had private conversations with the ETF. Soon, Governor Scott Walker and our anti-LGBT activist state Attorney General, Brad Schimel, were voicing their opinions that the federal bullies who had forced the state to offer trans medical care had no more influence, and the state should reassert its noble, sovereign right to discriminate. The ETF asked the Group Insurance Board for a ruling on whether a "rescission of coverage" would amount to a "breach of duty" to the employees of the state of Wisconsin. The GIB basically ruled, "No, go for it, once Trump is inaugurated."

The very first executive order Trump signed after his inauguration was one stating that Trump intended that Obamacare be repealed, and that meanwhile, all possible actions should be taken "to minimize the unwarrented economic and regulatory burdens" of Obamacare, and give the states "more flexibility and control."

And so, in the name of freedom, states rights, and economic security, the ETF acted. On February 1st, they issued a statement saying that "the exclusion of services related to gender reassignment is reinstated as of today."

One month. That's how long trans medical care needs were acknowledged to be valid in the state of Wisconsin. I didn't even get to have a single refill of my testosterone covered, because of a backorder at my pharmacy.

Hold the Doors

This is a moment where doors are swinging shut all over America. Due to racial and religious bigotry, they are being slammed shut at the national level in the faces of refugees who are fleeing the horrors of war. We must fight for the refugees and immigrants whose lives and livelihoods are endangered by anti-immigrant sentiments and actions. 

But we should also notice and help resist the other doors slamming shut on the smaller levels of state and local action. And the Wisconsin re-adoption of trans discrimination in health care for state employees is one of those actions.

So, can you do anything to help? Well, if you are actually a University of Wisconsin employee, especially an administrator, now is the time to stand up against transphobic discrimination and speak out. Perhaps you didn't know there was a ban on trans medical care coverage before. Perhaps you knew it existed, but thought that was true across the U.S.. Perhaps you knew it was an ETF policy, but thought of it as a sort of ancient fossil, some passive, unconsidered barrier. But now you know. The ETF has pulled the rug out from under your co-workers who are transgender, or have spouses or children who are trans. Coverage is clearly possible, since for one brief month it was offered. It is being denied in a blatant case of discrimination.

I realize that nobody at the University made this decision to reinstate the discriminatory policy. I know that it comes from the state, and that if you are an employee in the benefits office, you don't want to hand out discriminatory plans. University staff supervising and hiring individuals who are trans or have trans dependents don't want them to face unfair financial burdens and negative health and safety outcomes. You are just part of a large system.

But when you hear yourself saying, "I am a cog in a huge machine. I am just following orders," I hope that this makes you shiver, then shake yourself, and do something to resist. This is a habit that we need to develop or redevelop in these times, when talk of creeping fascism is not hyperbole.

Most readers, of course, aren't Wisconsin state employees. But you can help as well. You can contact state legislators via phone or fax. You can make a donation to a trans advocacy organization or the Wisconsin ACLU or other group. Most of all, what you can do is be aware of what is happening here as an example of what is happening in many states and localities now. Find out what is happening with regard to trans health care discrimination in the localities and states you live in or have connections to. Help raise awareness of the issue. There is so much to fight, now: xenophobia, racism, religious discrimination, misogyny. . . I'm not asking people to put transmisogyny and transphobia at the top of some list of deserving causes. I'm asking people to focus on the work they are best at, but when it comes to the list of issues they are not concentrating their personal work on, to make that an inclusive list. We need to have one another's backs, and help one another out where we can, though none of us can effectively take everything on. This is what I am trying me best to do.

And now you know one way to have my back. 

A Sample Resolution Against "Bathroom Bills"

We are at a crossroads in the U.S. when it comes to the issue of protecting trans people from discrimination. The federal government has issued guidelines that make it clear that discrimination against trans and gender-nonconforming people is illegal, at least in certain contexts (the person is a student, a medical patient, or a federal employee). Many organizations and localities have enacted further legal protections for trans children and adults.

But the backlash has been potent. We are seeing a rash of so-called "bathroom bills" being introduced in cities and states around the nation, which ban protecting trans people from discrimination based on the false claim that such laws would put women and girls at risk in bathrooms, locker rooms, and the like. If you are reading this, I presume that you already agree that pro-discrimination bills are a great wrong. But what can you do about them?

Well, one thing you can do is to convince an organization you're in that your group should take a stand against the passing of transphobic laws. You can pass a resolution explaining why you oppose discriminatory laws, and send it to stakeholders and decisionmakers in your area.

Drafting an official-sounding resolution can be challenging, though. Therefore, to help folks who want to take this action, I will share here the text of a resolution I recently drafted for an organization of which I am a member. When that organization meets, the members may decide they want to add or subtract something from the language before they vote to pass the resolution. Your group can do that as well. It's always good to tweak sample language to fit your specific situation! But it's a lot easier to tweak already-existing language than come up with a whole resolution from scratch, so I hope this is helpful to people.

Here's the sample resolution:

RESOLUTION OF [INSERT ORGANIZATION NAME]

AFFIRMING THE RIGHT OF TRANS PEOPLE TO BE PROTECTED FROM DISCRIMINATION IN ACCESS TO PUBLIC FACILITIES, EMPLOYMENT, SCHOOLING, AND HEALTH CARE

WHEREAS respect for people of all gender identities and expressions is an important value of [insert organization name]; AND

WHEREAS gender transition as a resolution of the experience of gender dysphoria is affirmed and supported by the American Psychological Association, the American Medical Association, and numerous other professional groups who care for transgender people, AND

WHEREAS a vital part of gender transition and the health and safety of trans people is living in their identified, authentic genders, with those genders being affirmed and respected in the various spaces and institutional settings where those individuals live, work, and go to school, AND

WHEREAS the federal government has issued guidances making it clear that discrimination against trans people violates federal law, TO WIT:

a)    Students at schools receiving federal funds must not face discrimination due to their gender identity or expression, which protection extends to freedom from harassment, bullying, or nonrecognition of their identified genders, and the right to access facilities and activities open to those of their identified genders (“Dear Colleague Letter on Transgender Students,” interpreting Title IX of the Education Amendments of 1972, issued by the U.S. Departments of Justice and Education); and

b)   These same rights extend to federal employees who are transgender or gender-nonconforming (“Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace,” issued by the U.S. Office of Personnel Management, interpreting the 5^th and 14^th Amendments of the U.S. Constitution and the Privacy Act); and

c)    Patients are protected from discrimination on the basis of gender identity or expression in health care under the Affordable Care Act (“Final Rule to Improve Health Equity under the Affordable Care Act,” issued by the U.S. Department of Health and Human Services); AND

WHEREAS a transphobic backlash against these civil rights protections is ongoing, taking the form of state and local legal initiatives and a federal lawsuit filed by eleven states and state officials opposing the guidance on the protection of trans and gender-nonconforming students listed as (a) above; AND

WHEREAS these anti-transgender initiatives focus centrally on access to bathrooms and locker rooms, claiming that laws protecting transgender people will enable men and boys to enter bathrooms and locker rooms designated for the use of women and girls, in order to commit voyeuristic harassment or sexual assault; AND

WHEREAS trans people have in fact been using bathrooms that match their identified genders for many decades without any such problem existing; AND

WHEREAS legal protection of gender identity does not in any way render harassment or assault legal, AND

WHEREAS it is in fact trans women who face substantial risk of becoming the victims of violence or persecution in accessing bathrooms; AND

WHEREAS claims of a fantasized risk to “innocents” have a long history in being deployed to justify discrimination and segregation, including claims that racial desegregation would put white women and girls at risk of rape and the transmission of STIs via toilet seats, claims that banning discrimination on the basis of sexual orientation would put children at risk of molestation, and claims that the Equal Rights Amendment banning sex discrimination would make sex-segregated facilities illegal, putting women and girls in danger in the same way now being claimed for legal protections for gender identity and expression; AND

WHEREAS the end of legal racial segregation and the introduction of protections on the bases of sex and sexual orientation did not lead to the fantasized onslaughts of sexual abuse; and

WHEREAS so-called “bathroom bills” have a vastly greater negative impact on trans people than just limiting their ability to access toilets; TO WIT:

a)    These bills deny the reality of gender identity, often using the nonsense phrase “biological gender,” which conflates physical sex characteristics at birth with gender identity in order to delegitimate gender transition as delusional; and

b)   These bills encourage the general public to treat trans people, particularly trans women, with fear, and to see them as potential child molesters and inclined to sexual assault; and

c)    These bills encourage the general public to engage in gender policing, which is a practice of scrutinizing the appearance and behavior of others, framing trans people as deceptive in their gender presentations, and punishing gender-nonconformity—a practice that impacts cisgender individuals as well as trans people; AND

WHEREAS the goal of a just society should be that all of its members be treated with dignity and respect, rather than mocked, bullied, stigmatized, falsely accused, banned from equal access to facilities, or otherwise marginalized;

NOW, THEREFORE, BE IT RESOLVED:

1)   [Insert organization name] reaffirms its longstanding support of the protection of people against discrimination on the basis of gender identity or expression; AND

2)   [Insert organization name] is grateful for the federal guidances which have issued from various agencies, making it clear that discrimination against trans and/or gender-nonconforming people in schooling, federal employment, and health care is against federal law; AND

3)   [Insert organization name] opposes the lawsuit by 11 states and state officials who claim a right to discriminate against transgender students; AND

4)   [Insert organization name] opposes all so-called “bathroom bills,” which institutionalize transphobia , delegitimate gender transition; and encourage public harassment of trans people; AND

5)   [Insert organization name] urges all public bodies considering so-called “bathroom bills” to recognize and acknowledge the reasons for our opposition, as enumerated in the body of this Resolution; AND

6)   [Insert organization name] urges all public entities charged with building and administrating public facilities to make available single-stall, lockable, all-gender restrooms and locker rooms for those who wish greater privacy in using the facilities and/or those who do not identify with a binary gender; AND

7)   [Insert organization name] holds that in any building that has both men’s and women’s multistall facilities and single-stall, any-gender facilities, transgender individuals can never be required to use the non-gendered facilities, as this constitutes segregation, but rather that both trans and cisgender individuals have the choice of using either a multistall facility that matches their gender identity, or a single-stall, all-gender facility; AND

8)   [Insert organization name] urges all whom this Resolution reaches to enact rules and regulations which respect and protect the rights of trans and gender-nonconforming people.

BE IT FURTHER RESOLVED that this Resolution shall be published on the website of [insert organization name], and that copies of it will be delivered by both email and paper mail to the Governors and Attorneys General of each of the United States and Territories and the Mayor of the District of Columbia. Email copies will also be sent to appropriate administrative agents of the DOJ, HHS, DOE and OPM, and to the heads of major trans/LGBT rights groups, including the National Center for Transgender Equality, the Transgender Law Center, the Sylvia Rivera Law Project, the National Transgender Advocacy Coalition, the Transgender Law and Policy Institute, the Human Rights Campaign, GLAAD (formerly an abbreviation for Gay and Lesbian Advocates and Defenders, now the full name of the organization as the prior name excluded trans advocacy), and the ACLU. Members of [insert organization name] are invited to distribute copies of this Resolution to local school districts, legislators, administrative agents or other authorities they know to be addressing the issue of protection of trans and gender-nonconforming children and adults.

RESOLVED THIS [insert date] DAY OF [insert month], [insert year].

TERFs of the Times

This week's Sunday Review section of the New York Times has as its headline article an opinion piece by feminist academic and film director Dr. Elinor Burkett, entitled "What Makes a Woman?" The tagline summarizing the post is "There is a collision course between feminists and transgender activists." This of course frames trans activists as antifeminists, making it clear at once that this piece is a manifesto of trans-exclusionary radical feminist, or TERF, ideology. It's written with a sympathetic tone, and Burkett positions herself as someone who wants to support trans people. She claims she just can't because we are seeking to undo the hard work she and other feminists of her generation have done. 

(One way you can tell that Burkett is a TERF is that she calls the term TERF a "trans insult." In fact, the term was coined by radical feminists who are not transphobic, to distinguish themselves from bigots. But TERFs inevitably claim that the term is a trans slur and that they should be referred to simply as "feminists.")

Burkett's piece is the second-most emailed NY Times article at the moment I'm writing this, and the comments section shows it's struck a huge chord with transphobes. Since so many people are talking about the piece, and since it's such a painful read for trans friends of mine, as it was for me, I'm going to present a take-down of her arguments here, as a sort of public service. If you know people who are talking about or citing this article, you can just link them here rather than having to wade through and counter the key points yourself.

Expressing Femininity

First off, let me show you the official headshot of Dr. Burkett that appears on film festival programs. As you can see, she is wearing lipstick, has dyed her hair red, and is wearing a floral top. She clearly presents herself in a feminine manner to the media. But her "What Makes a Woman?" piece starts and finishes by critiquing Caitlyn Jenner for being presented in a glamorous feminine fashion in Vanity Fair. 

Burkett decries Caitlyn Jenner's wearing of "a cleavage-boosting corset" and "thick mascara," although such things are typical for those pictured in Vanity Fair. Burkett particularly focuses on Jenner's statement that a reason she wanted to gender transition was that so that she would be able "to wear nail polish, not for a furtive, fugitive instant, but until it chips off." Burkett concludes the piece by scolding, "I want that for Bruce, now Caitlyn, too. But I also want her to remember: Nail polish does not a woman make."

Let's look at several of the key problems with this framing. First, there's the ridiculous assertion that Caitlyn Jenner believes in some way that wearing nail polish makes a person female, or is something only a woman can do. Were that the case, gender transitions to female would be extremely inexpensive, and thousands of unsuspecting dudes in bands would now find themselves women. . . Very few people over the age of four believe that putting on nailpolish literally defines a person as female, and portraying Caitlyn Jenner as actually believing this insults her by presenting her as having an infantile understanding of gender.

Looking beyond that obvious point, the tactic Burkett takes in this opinion piece is to critique Caitlyn Jenner as a means of critiquing all trans people. This presumes that all trans people are alike, so that what Caitlyn Jenner does and thinks represents what all trans people do and think. By this logic, all cis women think and act like Kim Kardashian--something we can presume Burkett does not believe. But Burkett ignores the fact that many trans people have spoken about how Jenner's experience is not at all like theirs. She does not acknowledge, for example, that trans people have expressed concern that the way Caitlyn Jenner is presented in Vanity Fair perpetuates the idea that to be "successful" in a gender transition, a trans person must want and get a ton of plastic surgery to make them look just like a cis person, and must appear conventionally feminine or masculine.

Not only is Caitlyn Jenner not representative of all trans people, her experience is representative of vanishingly few. Rare is the person who has the kind of money to be able to access such medical and aesthetic transition services. Jenner also enjoys privilege as a white woman. She's a Republican. She has a binary gender identity where many trans individuals do not. And she is conventionally feminine in her post-transition gender presentation. Many binary trans women and men are tomboys or feminine men. But by presenting some interview quotes and fashion photos of Caitlyn Jenner as representing us all, Burkett frames all binary gender transitioners as walking gender stereotypes.

Another thing you may have noticed that Burkett does in her concluding scold is to refer to Jenner as "Bruce, now Caitlyn." While better than refusing to acknowledge Jenner's transition at all, throughout the piece, Burkett makes sure to refer to Caitlyn as Bruce, Mr. Jenner and "he" as often as possible. The phrasing, "Bruce, now Caitlyn" also puts Jenner's deadname first, centering it while giving lip service to acknowledging her as Caitlyn. To use a trans person's former name and to use the wrong pronoun when speaking of a trans person's past are classic tactics used to belie our gender identities and presentations. It's cruel, it's rude, and it's against the NY Times' own style guide, but Burkett is allowed to get away with it.

Brain Sex

Moving on, the next thing Burkett does is to present trans people as having as a core ideology the belief that we are born with binary male or female sexed brains. Burkett frames us as having the goal of convincing society that brain sex requires people to act in a gender stereotyped manner--for example, that being born with a female brain makes a person bad at science and math, good at nurturing, and into frilly dresses. 

Now, it is true that Caitlyn Jenner makes sense of her identity as a woman by saying, as Burkett quotes, "My brain is much more female than it is male." There are many binary trans people who use this sort of language to try to explain what it feels like to have a gender identity that doesn't match one's assigned sex. But please note that the reason trans people do this so often is because cis people constantly demand that we explain how we know we are trans, and where our trans identities come from. 

Thirty years ago, when I was in college, straight people were always asking gay men and lesbians how they were sure they were "homosexual," and what made them gay. Back then, lots of LGB people were very interested in brain studies that claimed to show that gay men had brain characteristics similar to those of women, while lesbians had brain areas that were similar to those of men. Today, that just sounds silly, and scientific exploration of the idea that lesbians think like men and that gay men have girl brains has largely petered out, because people no longer demand to know what biological factor could possibly explain sexual orientation. With the depathologization of same-sex attraction, the search for some biological basis to explain it has faded away.

But when it comes to gender identity, many cis people still refuse to accept a person's self-report of how they feel. They demand that we "prove" our gender identities, and explain our "compulsion" to gender transition. There are scientists studying this question by examining brains, and so some trans people turn to this idea when asked to justify themselves.

What Burkett does not acknowledge is that there are many trans people, myself included, who are quite critical of the idea that there is some simple brain center that determines gender identity. There are many, like myself, who discuss how so much of the neurological research into "brain sex" has been deeply flawed, and used to bolster misogyny. What we argue is that gender identity is a deeply complex matter, that gender varies over time and between cultures, and that while you will find minor sex differences in specific parts of people's brains, the brain is a plastic organ that is shaped by our lived experiences. 

What the differences found in the brains of deceased men and women show is that we die with slightly different brains, not that we are born with our gender identities stamped in some simple way on our hypothalamus or some other brain center. The fact that trans women's brains resemble those of cis women's reveals shared identity and experiences, but the factors being studied as differing between women and men are tiny. "Brain sex" is a complex and subtle thing--not some matter of pink brain centers that are obsessed with makeup and blue ones that refuse to ask for directions. In any case, neurologists' understandings of sexed brains are still very limited and contested, and ordinary people can't be expected to parse their scientific articles.

What we urge is that cis society stop requiring that we somehow prove that our gender identities have some biological basis, and just respect our self-report of what our gender identities are.

So later in the piece, when Burkett goes on to report on the work of feminist neurologists who say that sex differences in the brain develop over a lifetime of experiences, she is actually arguing the exact same thing that many trans activists argue. But Burkett is oblivious to this fact, because she has stereotyped all trans people. She presents us as all as believing men and women are both with vastly different brains, that we were born with female brains in male bodies (or vice versa), and that this requires us to act as hyperfeminine trans women (or hypermasculine trans men).

I suppose Burkett must believe that nonbinary trans people believe they were born with androgynous brains. But she doesn't say anything about this--probably because she sees androgyny as a morally good counter to gender stereotypes, so has no motivation to bring up the topic here.

Hormones and Emotions

OK, next. Burkett takes a moment to sneer at Chelsea Manning, saying she "hopped on Ms. Jenner's gender train on Twitter, gushing, 'I am so much more aware of my emotions, much more sensitive emotionally (and physically)'." I do find it ironic when a feminist seeks to discredit another woman by accusing her of "gushing" overemotionally. . .

Chelsea Manning recently started hormone therapy, after much struggle with the military. Apparently Elinor Burkett believes that hormones produce no effects, or only affect physical things like breast or beard growth, so that to say hormones influence one's experience of emotions is an antifeminist delusion. This is just silly, because you don't have to be trans gender to see that sex steroids influence emotions. Tons of cis women are familiar with the emotional lability of PMS. Sure, this fact has been used by misogynists to frame women as too moody to take seriously, and this is ludicrous. But you can put your fingers in your ears and go "La-la-la" all you want to when people report that they cry less easily after having their ovaries removed, or cry more easily now that they are taking estrogen and progesterone to gender transition--it doesn't make the fact that this happens go away.

It seems from this section of her screed that Burkett believes any discussion of embodiment in relation to gender is evil sexism. Saying "I cry more easily with high levels of estrogen and progesterone in my body" is equivalent to saying, "A woman can never be president because her hormones make her too irrational." Burkett frames Caitlyn Jenner and Chelsea Manning as representatives of all trans people, and as what they are saying as evil. They are voicing "hoary stereotypes" that have been "used to repress women for centuries." And worse, they are convincing progressives that this is a good thing, undoing all the hard work of feminism.

Trans Women as Sexist Men

Next, Burkett comes out with a truly vile and nasty paragraph, which I will replicate here so we can unpack it:

"People who haven't lived their whole lives as women. . . shouldn't get to define us. That's something men have been doing for much too long. And as much as I recognize and endorse the right of men to throw off the mantle of maleness, they cannot stake their claim to dignity as transgender people by trampling on mine as a woman."

Notice what Burkett is doing here. Trans women are called first "people who haven't lived their whole lives as women," and then flat out "men." Trans women are "men" who are trampling on the rights of "women," and "women" of course here means cis women. "Transgender people" are in this paragraph all trans women. And by asserting their dignity as trans people, trans women are proving themselves to be really men in that they are seeking to control (cis) women.

Now what, exactly, are trans women trying to force cis women to do? Burkett states that trans activists are not just asking for equal treatment as are "African-Americans, Chicanos, gays and women"--instead they are "insulting" (cis) women by "demanding that women reconceptionalize ourselves." Apparently Burkett believes that trans women not only assert, but demand all women agree, that gendered behavior is not socially constructed at all but is inborn and fixed. Gender roles are eternal and innate, and thus biology compels that all girls love playing dress-up, and all boys love sports!

This is ridiculous on so many levels it's hard to list them all. First off, since we have to think about gender a lot in order to figure out our own identities, most trans people I have encountered know a whole lot more about what social construction means and how it operates than do most cis people I encounter. The chances of a random trans person--be they a man, woman, nonbinary or agender--being a feminist is also much higher than that of a random cis person being wiling to call themself a feminist.

I know hundreds of trans people. Of the binary trans women I know, some--a minority--have the narrative of having been very feminine children who constantly wanted to play dress-up and house. But exactly zero of those individuals would say "real girls must only want to play with dolls and not chemistry sets."

Compared to the cis people I know, my trans acquaintances are much more likely to admire and support gender-transgressive children and adults, whether the gender-transgressive individuals are cis or trans. (And studies show this is true of trans people generally, not just my personal friends.)

I have no idea where Burkett gets her bizarre idea that trans women demand hyperfemininity of cis women. (Except I do--it's a common slander perpetuated by TERFs.)

Gender Socialization and Brain Sex Revisited

Burkett underlines her positioning of trans women as men by repeating the old TERF saw that gender is determined by socialization, not identity. Burkett claims that Caitlyn Jenner and nameless other trans women have not experienced sexism in their lives as Burkett has, and that therefore "their female identity is not my female identity." This implies a trans woman doesn't know what a "real" female identity is, while Burkett does.

Burkett either doesn't understand what gender identity is, or pretends not to. There is immense diversity of experience among people who identify as women, by age and race/ethnicity and sexual orientation and a wide variety of other factors. But this doesn't mean some categories of women have a less truly female gender identity than others. For example, Burkett says that part of what creates a female identity is being relatively poorly paid at one's job. Now, since white women earn more than African American, Latina or Native American women in America, does this mean that as a white woman, Burkett has a less real female identity than do women of color?

I don't imagine this parallel has occurred to her.

Anyway, what Burkett says is that trans women live with male privilege: male earnings, male freedom from fear of sexual assault, the male privilege of being treated as a subject and not a sex object. And, she says, this socialization shapes their brains. So in fact, trans women must have male brains, not female ones.

I'm struck by the illogic of framing trans women as "having a male brain" while simultaneously claiming that saying there's such a thing as brain sex is a sexist act being perpetuated by trans activists. But beyond that, there are two fallacies here. The first is that Burkett ignores how we are active participants in our own socialization. In fact, socializing messages are received quite differently by different people. And a person who identifies as a girl or woman will attend to socializing messages about girls and women.

The second fallacy comes from framing all trans women as being like Caitlyn Jenner: as living for many decades being perceived by others as masculine men, and as having started their transitions very recently. In fact, trans women who have been perceived as feminine boys or men will have dealt with lifetimes of bullying, harassment, and unequal treatment at school and work because of their femininity. And whatever her past experience, once a trans girl or woman comes out, she gets to experience all the (uniformly negative) social things Burkett lists as female socializing experiences at levels typically much higher than those faced by cis women. Getting stared at by men. Fearing sexual and physical violence. Job discrimination. And socialization doesn't end in young adulthood--all of us are always having our behavior shaped by the socializing messages we receive from those around us.

What Burkett would say about the socialization experience of binary trans individuals who come out as children in supportive families and are treated as their identified sex from a young age I do not know, because she doesn't address them. In her NY Times piece, all trans women are Caitlyn Jenner.

Is a Woman Defined by a Uterus?

Another topic which Burkett treats with eye-popping logical inconsistencies is the issue of whether a woman is defined as a person with a vagina, uterus and ovaries. On the one hand, Burkett asserts that trans people who say they were "born in the wrong body" are offensively "reducing us to our collective breasts and vaginas." In fact, many trans people critique understandings of us as "born in the wrong body." I am one of many who has written about how it's not my body but society that is the problem.

And Burkett is part of that social problem, because while she sometimes asserts biology is irrelevant, she also states that trans women can never understand what it means to truly be women because they have never "woken up after sex terrified they'd forgotten to take their birth control pills the day before." Suddenly, in a scenario where it can be used to discredit trans women, having a uterus and ovaries becomes definitional to being a "real woman." This implies that cis women who were never fertile are not real women, and is offensive and absurd.

In fact, most trans people argue that bodies do not determine if we are really women or men. It's gender identity that is determinative for us, not genitals or reproductive organs. A cis woman who has a hysterectomy or mastectomy does not become unwomaned by the surgery. A trans man does not need genital reconstruction to deserve to be respected as a man. And a nonbinary person is not "really" a woman or a man because they were born with a vagina or a penis.

Can We Speak Differently About Genitals?

Eventually, Burkett gets around to talking about trans people other than binary trans women. It's two-thirds of the way into this diatribe that centers transmisogyny, but in the end, those under the trans umbrella who are not trans women finally get called out as oppressors as well. The reason? We don't want to equate women with vaginas.

One of the things that makes life difficult for trans people today is the way that so many people, organizations and institutions treat genitals as synonymous with gender. Most trans people in the U.S. have not had genital reconstructive surgery, and many of us have no interest in it. Many of us are uncomfortable talking about our genitals with others (and really, so are most cis people, even though the stakes for them are lower).  Often, we use terms other than vagina or penis or clitoris to name our genitalia in private discussions with partners or friends, because those terms are so loaded with gender expectations by our society. 

Burkett mocks the use of alternative genital and reproductive terms in her piece as "politically correct" nonsense.

But what gets Burkett all riled up is that there are people who were assigned female at birth--genderqueer, agender, and transmasculine--who are trying to raise consciousness about more trans-inclusive ways to talk about anatomy and gender in pro-choice organizations. Not everyone seeking an abortion identifies as a woman, and the difficulties of seeking to terminate a pregnancy are compounded for such people by constant misgendering, and ignorance of the very idea of using alternate terms to describe anatomy. To Burkett, an effort to raise consciousness about these individuals' experience and shift the language employed constitutes some kind of war on women and attack on feminist leaders that will endanger reproductive freedom.

Burkett is apparently in love with the word "vagina" and using it as a synecdoche for "woman." She is indignant that many trans people of all sorts have gotten tired of the play The Vagina Monologues, performed annually at colleges and women's centers all over the country since the late 1990s. Yes, trans people critique performances that equate vaginas with womanhood--but not because we are antifeminist, as Burkett frames us. It is because we too are feminists, and we expect more of our feminist cis siblings.

When trans activists critiqued the choice to call a feminist event "A Night of a Thousand Vaginas," the goal was not, as Burkett believes, to turn back the clock on feminist progress. It was to urge feminism forward toward greater inclusiveness.

Do Trans People Oppose Women's Institutions?

Another source of panic for Burkett is the idea that trans people are doing damage to institutions such as women's colleges. She notes that there are students at some women's colleges who do not identify as women, and that that some individuals at women's colleges use the term "siblinghood" as an alternative to "sisterhood" to acknowledge them. And she reports that there are some trans male students who ask their professors to stop using the pronoun "she" to refer to a generic, abstract student at the college.

The thing is, the focus of most trans advocacy has been on convincing women's colleges to admit trans women, which is as it should be. Most trans people are fine with the idea of there being women's spaces and institutions, so long as they don't exclude trans women. And many of us have in fact written critically of trans male students who decide to continue to attend a women's college after coming out, and then want the colleges to center their experiences as men. That's male privilege--not young trans women daring to assert that they should have a right to be considered for admission by woman's colleges.

Who Owns Feminism?

The last segment of Burkett's diatribe before she concludes by recapping her dissing of Caitlyn Jenner is both infuriating and smarmy. In it, she discusses who is moving feminism forward, and whether trans people should be welcomed to that project. The smarmy answer is, in her words, that "we'll happily, lovingly welcome them to the fight" if "they" do the right thing. The feminist "we" is cis gender, and the "they" seeking admission are trans people.

In this section of her piece, Burkett writes as if trans people didn't exist until a couple of years ago, and up until then, all the good work of seeking gender equality has been done by cis women. She goes on for a while about the revolutionary nature of the amazing work people she describes as "women like me" have done in advancing equity and freedom. She describes this as including "smashing binary views of male and female well before most Americans had ever heard the word 'transgender' or used the word 'binary' as an adjective."

Apparently it has not occurred to Burkett that many trans people have been involved in feminist advocacy for much of their lives. That some of those who have been fighting gender stereotypes as long as she has did so because they had or have nonbinary identities. That some did so fighting side by side with cis women in organizations like NOW, and that others fought from the margins, because they were excluded from mainstream women's organizations, either because of their gender presentation/gender identity/sex assigned at birth, or because those organizations excluded them for other reasons, such as their race. In fact, a multitude of young and old people with all sorts of identities other than cis gender are involved in gender activism and scholarship at this very moment, without noticing that they do not carry Burkett's seal of approval.

Burkett doesn't even acknowledge that among the people fighting gender stereotypes, there have been, and still are, cis men.

In any case, Burkett posits that cis women own feminism, and they have the right and the power to decide whether to admit trans people.

What most underlies Burkett's stance in my mind is cissexism: the belief that cis people's gender identities are authentic and real while trans people's are questionable, coupled with the belief that cis people have the right to sit in judgment over trans people's gender expressions, and decide whether to acknowledge a trans person's gender identity. Burkett has positioned herself as having the right to decide who is acknowledged as a woman, or as a feminist, or as having a "real" gender identity.

Fortunately, Burkett and her fellow TERFs do not in fact get to own feminism or to set the rules for gender authenticity. All of us are collectively involved in these projects, and the number of us coming out under the trans umbrella is rapidly expanding. The number of young cis people who are trans allies has been expanding in the same way. 

Burkett and her ilk can make our lives more painful and difficult, but they can't make us disappear.

What Does Burkett Want?

The really ironic thing is that trans advocates share a good deal of what Elinor Burkett at least claims that she wants. And that is that we agree that confining people to gender stereotypes is bad, that gender roles are socially constructed and change over time, and that we can and should work to change things about contemporary gender norms because they disadvantage women, cis and trans. As I've noted, the percentage of trans people who agree with this is higher than the percentage of cis people who do.

The other thing Burkett says she wants from trans people, before she and her cis compatriots admit us to the club, is that we affirm this statement: "So long as humans produce X and Y chromosomes that lead to the development of penises and vaginas, almost all of us will be 'assigned' [binary sexes] at birth." This one a lot of people might just shrug at, but that I reject. 

I am intersex by birth. It's vital to me that we stop naturalizing the idea that sex is a binary, when it is a spectrum. It's important that we acknowledge the medical violence done to thousands of intersex children every year, in an attempt to make our sex variant bodies conform to this ideology. And it's high time we stopped putting imposed gender markers on birth certificates, as we've stopped having doctors chose a race marker for birth certificates. Burkett wants us to acknowledge the social construction and cultural variability of gender, but denies that sex is socially constructed and culturally variable. This betrays an ignorance not just of intersex experience, but of the fact that many world societies have divided the sex spectrum into three or more sexes, and that the binary sex system we see as natural is in fact ideological, only one system among many.

It seems to me that what Burkett really wants is to stop the progress in social acceptance trans people have been winning, at least in more progressive social circles, by framing trans people--especially trans women--as regressive and antifeminist. I don't know what motivates her to want to do this any more than I understand what motivates any sort of bigotry. Usually there's some combination of personal insecurity and a fear that one is losing social power.

What Burkett frames as triggering her whole opinion piece is that she wants to critique Caitlyn Jenner for presenting herself in such a gender-conforming manner, but feels she must bite her lip and stay silent, lest she be viewed as transphobic. Of course, she hasn't in fact stayed silent in the least. Having this op-ed critiquing Caitlyn Jenner as a representative of all trans people published as the headline piece of the NY Times' Sunday Review is about as opposite from staying silent as a feminist author gets.

So apparently what Burkett wants is to be able to say transphobic things and not be called a transphobe ("TERF is a trans slur").

Sorry, Dr. Burkett, that's not going to happen. 

However, that's not to say people shouldn't be able to critique Caitlyn Jenner because her trans status is some sort of magical shield and she can do no wrong. Critique her all you want, so long as you do it in the same way you would were she a cis woman. And if you're going to attack her for her conforming feminine self-presentation, then you should also publish diatribes about how Vanity Fair cover model Scarlett Johansen is undoing the work of feminism by displaying vast amounts of cleavage and wearing thick eyeliner, or how Jennifer Lawrence is a dupe of feminine stereotypes because the cover photo of her complaining about how nude photos of her circulated without her permission shows her apparently nude except for a diamond necklace.

Or you could stop framing all trans people as embodied by a couple of interview snippets and a photo shoot of one star in the Kardashian celebritysphere, and tying them to tired old claims about how trans people are all walking gender stereotypes.

And you could start reading the writings of transfeminists.