Posts Tagged ‘Gender’

I’m frustrated.  And I’ll tell you why I’m frustrated.  I’m frustrated because of the UNC sexual assault scandal that is in some of the press right now.  I’m frustrated that we live in a culture that puts the survivors of a sexual assault on trial more than the accused.  I’m frustrated that a school as prestigious as Carolina would  threaten a survivor with disciplinary action for intimidating her rapist, just because she decided to speak out about what she sees as an unfair process and a lack of support.  I’m frustrated by the comments by student conduct board members, or the comments in every article about this case, that suggest she brought it on herself.  I’m frustrated by my friends with whom I’ve been arguing who say that if she wanted a fair hearing, she should have gone to the police.  And I’m frustrated by the people who are making this issue about the rights of the attacker instead of the rights of the victim, even when said attacker has not been publicly named.

No doubt this is a complicated case.  I will not presume to know whether or not Landen Gambill was forcibly raped by her former partner.  I will state, however, that 2/3 rapes are committed by someone the victim knows.  Nearly 30% of rapes are committed by intimate partners.  What I do believe, though, is that the decisions the UNC administration have made – and the basis for Gambill’s Office of Civil Rights (OCR) Complaint and subsequent media attention – are at least unethical, and most likely illegal.

1.)    The case was heard by the student “honor court,” a board of undergraduate students designed to hear violations of the student conduct code.  This requires little further elaboration because UNC has admitted that the board should not have heard the case, and have since been stripped of the right to hear them.  Unfortunately, Gambill’s case was heard in the interim, between when the University began to respond to the OCR’s Dear Colleague Letter and when the policies changed.

2.)    The student court put the victim on trial. According to Gambill, one of the members of the student court stated: “Landen, as a woman, I know that if that had happened to me, I would’ve broken up with him the first time it happened.  Will you explain to me why you didn’t?” My response to this the first time I read it is absolute rage.  The student a.) presumes to know what she would do if she were in an abusive relationship, even though leaving an abusive relationship is very difficult and complicated, b.) by asking the question, the implication is clear: “if you really were raped, you would have left him.  Staying implies consent.”  I’ve argued with some people who don’t see that implication in the question, but really I can’t read that question without seeing the insinuation that the victim was responsible for her own assault, c.) the student conduct board brought up a previous suicide attempt (which has no bearing on this case. None.) in her hearing.  Why?  The only thing I can think of is that this was an attempt to discredit her, that just because she suffered from depression she was more likely to “make up” the story.

3.)    The student board released graphic details of Gambill’s assault to her parents, in potential violation of Federal privacy laws (specifically FERPA).  FERPA allows institutions to disclose any and all information to parents if the students are dependents for tax purposes.  According to the UNC website, however, the parents would have needed to file for access to that information in advance, suggesting that this was probably a violation after all.

4.)    The most frustrating piece for me, however, is that Gambill now faces disciplinary action for speaking out, something I believe to be in direct violation to 2008 amendments to the Clery Act which is designed to protect whistleblowers and victims of sexual assault.  From a policy perspective, this decision is especially harmful.  If victims are being intimidated, they are far less likely to report a sexual assault.  Sexual assault is already underreported and underinvestigated.

5.)    In terms of public response, many are wondering why Gambill decided to report to the school rather than the police.  I think the answer is at least two-fold.  First, the campus has a lower burden of proof than the criminal justice system for adjudicating such cases.  Colleges are required to use a “preponderance of evidence” standard for hearing such cases.  That is to say, students are held responsible if there is an infinitesimally greater than 50% chance that they did it (this is often dubbed the reasonable observer test – would a reasonable observer presented with the evidence believe that the person was responsible).  Courts are required to use a “beyond reasonable doubt” standard – something that’s probably closer to the high 90%s.   Second, going through the criminal process requires a much greater emotional commitment and resilience than going through the conduct process for what are usually meager results (rape cases are among the hardest to prove at the criminal standard).  This process can cause even more trauma on top of the initial assault.  Above and beyond that, though, it doesn’t matter. It was the survivor’s right to choose to whom and when she wants to disclose.  Whether or not she reported to the police as well, the campus would still have been responsible for addressing the assault.

6.)    To those saying that there isn’t enough evidence: maybe.  This isn’t about whether or not the accused actually did assault her (although false sexual assault claims are very rare).  It’s about whether the University met its legal obligation and moral obligation to support the survivor.  It did not.  I believe there are other probable violations here as well (failing to inform her that her alleged attacker was moving back on campus, for instance).  Moreover, it’s worth noting that the honor court did find her attacker responsible for harassment after Gambill’s roommate reported behaviors characteristic of stalking, and that an administrator (according to Gambill) obtained a confession from her alleged assailant. As to the rest of the case, we are not privy to the details of the hearing; perhaps there was enough evidence, perhaps there wasn’t, but the above violations should never have occurred.

No institution is perfect.  Sexual assault is difficult for any campus to address.  But it is a problem that we need to be addressing.  Sexual assault is pervasive on college campuses, and if you think you don’t know a survivor, I’d bet you’re wrong.  And the level of the press that this case is getting is probably frustrating for students, who just want to put the whole thing behind them.  I suspect UNC will probably be found in violation if OCR investigates – that an Assistant Dean of Students had resigned over this very issue, and has joined in the OCR complaint with more than 60 others, is testament to the mistakes that were being made.  Let’s spend less time impugning the victim’s character and trying to interrogate her and spend more time addressing the cultural conditions that excuse rape but harass survivors.

Imagine it was your best friend. Your mom. Your sister. Your daughter. You.  Imagine if someone asked you why you didn’t prevent your rape.

I set off a firestorm on my Facebook page when I suggested that transgender murderer Michelle Kosilek should receive her gender reassignment surgery at taxpayers’ expense this week.  Some folks said that only the most liberal of liberals would say such a thing; other people, who I would consider at least as liberal as I, said that this was a waste of Taxpayer dollars.  Some suggested that prisoners forfeited their right to health care and that they should have let Kosilek kill herself.  Others suggested that a “sex change” could not be medically necessary.  Others still demonstrated a complete lack of understanding of the difference between sex and gender.  Throughout my conversation – and other similar ones that I saw spawning across the internet – an unexpected amount of vitriol was being tossed around as casually as people today discuss the weather.  I found the whole experience rather disturbing.  I’m going to try to address all of these pieces in what is bound to be a rather long post.

First, a primer on language:

I think it’s important that we work from the same set of definitions.  Anyone who knows me should know that I think language is incredibly important.  It’s possible that I’m wrong about some of these terms – I am not blessed, to my knowledge, to have any really good friends who identify as transgender – so my working definitions of these terms are purely academic.

Sex: For simplicity’s sake, we’ll use the traditional chromosomal definition of “sex.”  XX = female.  XY = male.  This becomes incredibly complicated in the case of persons who are intersex, but this is not part of our discussion for now.

Gender: Gender is not a biological concept.  Rather, it a socially constructed identity that entails a number of different roles and expectations.  In my view, gender is something that is determined by the individual and how he or she (I’ll avoid the neutral pronoun xe or any of its alternatives for simplicity’s sake, again) identifies.

Transgender Flag

Transgender (adj.): Someone who is transgender identifies with gender roles incongruent with their biological sex.  Often, people who are transgender say they feel as though they are a “female trapped in a male’s body” or vice versa.  I think the part of speech is important here: transgender is an adjective and not a noun.  We talk about a person who is transgender; we don’t talk about a transgender.  This is because saying “a transgender” is similar to saying “a gay”—you are defining someone based on one characteristic.

Transsexual (adj./n.): I’ve been told that some people differentiate transsexual from transgender in the following way: that transsexual individuals have had gender-reassignment surgery and now have the physical anatomy to match their identified gender.  I’ve also been told that this word is problematic because it has negative clinical connotations.  It is also much more often used as a noun than “transgender” which makes someone’s gender identity their defining characteristic.  So I will avoid using this term, but I wanted to throw it out there.

Cross-Dressers: Cross-dressers are not the same as transgender people.  Cross-dressing may have nothing to do with gender identity.  Cross-dressing can be for performance (drag), sexual fetishism, and more.  Some cross-dressers are transgender; many are not.

Cisgender (adj.): The quality of identifying with the same gender as your biological sex.  For analogy sake, gay:straight::transgender:cisgender.  It’s not an apt analogy, really, but it’ll do.

Pronouns: It is important to use the pronoun of the person’s identified gender.  Some people make it a practice to ask people what their preferred pronoun is (typically he or she, but sometimes gender neutral pronouns such as xe).  When I discuss Michelle Kosilek, for instance, I will be referring to her as “she” because that is the pronoun with which she identifies.  This is the same reason that we should refer to Chaz Bono as “he.”

MTF/FTM (adj.): Male-to-Female or Female-to-Male – these are sometimes used to describe people’s original sex to their new gender.  These are problematic because transgender females are not people who were male and became female; instead, they were always female and they just began living the roles with which they always identified.  Make sense?

Some famous Transgender People:

The two that pop into my mind immediately are Chaz Bono and Laura Jane Gabel, the lead singer of Against Me!  Keelin Godsey also comes to mind because he almost qualified for the Olympics this Summer.  Truth is, though, there aren’t many reference points in popular culture for transgender individuals.  This is a subject only recently being examined by our culture.

A quick transgender fact sheet:

26% of transgender individuals have been fired for their gender identity.

15% of transgender people live below the poverty level.

Between 16% and 60% of transgender individuals experience physical abuse.  Between 13% and 66% are survivors of sexual assault.

Suicidal ideation is reported in 38-65% of transgender individuals, with attempts having been carried out by 16-32%.

Depression has been reported in 43-60% of transgender persons.

So why the big range?  The truth is, the research is sparse and there are a lot of factors that weigh in on someone’s mental health, including the support of the community, access to resources, whether or not they have been assaulted, etc.  I imagine that as more research is conducted, and as trans issues reach public awareness, the numbers will point to a greater consensus.

So, now onto Michelle Kosilek:

Michelle Kosilek is in prison for murder after having strangled her wife with a wire.  She is sentenced to life in prison with no possibility of parole.  She sued in 2000 for access to hormone therapy while she was in prison, and sued again in 2005 to gain access to Gender Reassignment Surgery.  A federal judge last week (notably a Reagan Appointee) stated that the Massachusetts Department of Corrections needed to provide the surgery.  This sent off a nationwide backlash against tax-payer dollars being used to fund “sex changes for murderers.”

It’s important to note that Kosilek’s doctors have established that this is the only treatment that would help with her Gender Identity Disorder (A term in the DSM-IV which will likely be replaced in the upcoming edition).  Kosilek has attempted suicide twice, and has attempted to manually castrate herself in absence of the prescribed surgery.  Although the American Psychological Association has not officially declared Gender Reassignment a treatment for GID, it is the standard of practice espoused by most practitioners who treat transgender individuals and it and part of the WPATH standards of care (http://www.wpath.org/publications_standards.cfm).  In nations that have adopted universal healthcare (e.g., Canada), gender reassignment surgery is covered as medically necessary.  Some private insurers in the USA cover the surgery as well, but only after strict criteria are met.  Otherwise, the surgery can cost up to $20,000.  In order to legally have the surgery in the US, one must live as the new gender for at least a year and undergo extensive psychological evaluation.

Do Prisoners Forfeit their Rights to Health Care?

This is a complicated question, to be sure, and I believe it comes down primarily to the eighth amendment – do we inflict cruel and unusual punishment on our most heinous criminals?  The Constitution says we don’t.  The purpose of the prison system is not to inflict suffering on inmates; it is to remove them from society and, for those who will eventually leave prison, rehabilitate them for reentry into civilization.  For prisoners with Cancer, we do not withhold chemotherapy.  For prisoners with severe depression, we do not withhold antidepressant medication.  For prisoners with schizophrenia, we do not withhold antipsychotic medication.  To do so is inhumane.

Some argue that Kosilek lost any right to humanity when she took another’s life – so do we just withhold treatment from murderers?  What about the number of false convictions?  And if murderers, what about rapists?  Pedophiles?  Drug Dealers?  Exactly which prisoners do we withhold treatment from?  I find the whole logical progression of this argument disturbing – such withholding of treatment amounts to torture, and I’m not comfortable living in a country that tortures its criminals.  The same applies to Michelle Kosilek.  She is by no means sympathetic (although more on that later) – it is understandable that our basest instincts would say “let her suffer.”  She did, after all, murder her wife and leave her in a parking lot.  But she is still a human being, and she is suffering immensely without the treatment her doctors have prescribed.  Besides, since when do we allow our basest instincts determine public policy?

If it’s a question of cost, chemotherapy can cost up to $30,000 or more.  Stopping cancer treatment doesn’t seem to be as popular as withholding Michelle’s gender re-assignment.

But It’s Not Medically Necessary!

Here is the one that frustrates me the most.  People go on and on about how a “sex change” cannot be medically necessary.  I guess that really does pose an important question: Do we believe doctors, psychiatrists, psychologists, and scholars about what is medical necessary?  Or do we defer to the armchair clinicians spewing their “common sense” truths from talk radio, twitter, or the legislature?  Isn’t the reason that people are so afraid of “ObamaCare” that they’re afraid unqualified bureaucrats will be determining healthcare?  One would need to be the Gabby Douglass of mental gymnastics to overcome that cognitive dissonance.   On this one, I’ll trust the doctors and the people who say that gender reassignment surgery saved their lives.

He’s Not REALLY a Woman:

Really?  And you live inside Michelle Kosilek’s mind and can say, with certainty, that she does not identify as a woman?  Some folks out there would respond that it doesn’t matter how she identifies.  But gender is socially constructed, and one’s self-identification is all that matters.  This blog post is going on for too long, so I won’t get into everything that’s wrong with this sentiment.  Anyone who would like to do more can google “social construction of gender,” or take some introductory courses in sociology, gender studies, feminist theory, or queer theory.  Here is a brief summary: http://thefeministagenda.blogspot.com/2009/04/social-construction-of-gender.html.  Michelle is just trying to make her external self match her internal self; in an ideal world, we could decosntruct gender roles entirely.  That’s not where we are yet.

Good, Hard-Working People Can’t Afford GRS, So Why Should the State Pay for a Prisoner’s?

This is probably the most compelling argument, and I think the question is backwards.  It should read: “If part of being humane is giving prisoners access to health care, why do we not give that same access to good, hard-working people?”  The problem isn’t with the DOC providing the surgery; it’s the fact that access to good health care in the United States is a problem.  It’s a problem that our current president has tried to fix, and it’s a problem that’s seen great progress in recent years.  But it’s still a problem.  Taking healthcare away from prisoners only makes it worse and it imposes undue pain and suffering to boot.

So what?

So why does any of this matter?  Why have I gone out of my way to defend Kosilek or the decision of Judge Wolf?  Because it’s a matter of principle, and not of politics.  This has nothing to do with me being an uber-liberal.  It has to do with me believing that we have a moral obligation to help those on the margins of society, and that as a public we treat Transgender people like crap.  It’s interesting to note that Michelle Kosilek got life in prison without parole, but someone who strangled a transgender person in Massachusetts only got two years.  It’s interesting to note that the person Kosilek murder – her wife – was originally her therapist in a half-way house that seduced her.  It’s interesting to note that her wife, Cheryl, physically abused her by pouring boiling hot water on her and attacking her with a knife.  It’s interesting to note that she was also abused by her stepfather who attempted to stab her for asking if she was a girl.

If people only took some time to understand the issues that trans people face, maybe Kosilek never would have been abused?  Maybe she never would have checked into that halfway house?  Maybe she would have never murdered anyone?  We’ll never know the truth.  But it’s time that we start allowing compassion and sympathy back into our lives instead of judgment, hate, and fear.  So if you’re going to talk about this case – and you should, there’s a lot to talk about – do it respectfully, do it with integrity, and remember that prisoners – no matter how heinous their crimes – are people too.

 

P.S. – This piece tries to make the moral case for granting Michelle Kosilek her surgery.  For the legal reasons, I would suggest reading the actual decision — there is more to it (basically depraved indifference on the part of the DOC) than what the media would portray: http://cbsboston.files.wordpress.com/2012/09/kosilek-order.pdf

Dear Professor Warren,

I woke up this morning thinking about the Democratic National Convention in Charlotte.  I remembered how attuned we were, as a party, to the needs of those on the margins.  As those on the right accuse us of godlessness (and I admit, I myself am an atheist), I saw people preaching the true message of Christ and professing the values our nation is built on: that yes, we are our brother’s keeper, and yes, we are in this together.  That together, we are greater than the sum of all our parts.  You quoted a piece of scripture in your speech that resonated with what I think we stand for as a party.

You said: “Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.”  And you explicated the passage well, stating that the passage “teaches about God in each of us, that we are bound to each other and we are called to act.”  You, along with the rest of the speakers, reached out to those on the margins – the poor, the homeless, the undocumented, the disabled, the LGBT community, and the various racial communities that make up our great nation.  You drove home the point that health care is a fundamental human right that no one in this country should go without.  Because of this, I woke up and donated $20 to your campaign.

Then I saw Scott Brown’s response to the Michelle Kosilek case; he called it “an outrageous abuse of taxpayer dollars” and I said (publicly) that this was yet another reason I would not be voting for Senator Brown.  Certainly, transgender folks are treated as some of the “least of these my brethren.”  The prison community even more so.  And for a woman who has been forced to live her life as a male by a society that refuses to understand the needs of gender minorities – for a woman who has been forced to live in an all-male prison – for a woman who has repeatedly self-mutilated and attempted suicide over the lack of medical care (again, something we as a party deem a fundamental human right) – I knew that you would understand Kosilek’s plight.

So I was surprised today to learn that you agree with Senator Brown.  Surprised and disheartened, really, after what I found to be such a great convention speech.  Although you weren’t as blustering as Senator Brown, you told WTKK the following: “I have to say, I don’t think it’s a good use of taxpayer dollars.”  It’s true that this is the sentiment of many of our friends and neighbors who do not understand transgender issues.  It’s true that, in an election year, it might have been political suicide to come out in favor of trans rights (especially in the case of Kosilek, a murderer who garners little public support).  But there was an out for you, Professor; you could have simply deferred to the medical expertise of those in the prison system who stated that this was medically necessary treatment.  Certainly the great people of Massachusetts don’t want the Government intervening in the decision of doctors, right?  Isn’t that everyone’s great fear about “ObamaCare” – that bureaucrats will be deciding the treatment of Americans?

I know that you would not deny anyone the chemotherapy to cure their cancer, or the medicine to control blood pressure, or the drugs to treat depression.  Why then would we withhold treatment for someone who has fought the last twenty years trying to live as a woman the treatment the medical community has deemed necessary.  We do not allow prisoners to fund their own care; we take on that obligation as a state and as a nation.  That means that we cannot withhold treatment, even from – especially from – “the least of these my brethren.”  What Michelle Kosilek did to her wife was deplorable; it’s easy to hate her, and seek vengeance against her by denying her treatment.  But that’s not who we are, nor is it who I think you want us to be.

Trans folks face some of the worst treatment our society has to offer, and to keep her in an all-male facility, and to deny her the care she needs, sets her up for further suicide attempts, further attempts at self-mutilation, further attempts at rape and abuse.  The Bill of Rights protects every American from cruel and unusual punishment – even those on the extreme margins of our society – and I would hope that a candidate as progressive as yourself would recognize that this is not about an operation; this is about a human being.  It’s about our own humanity as we remember what a Reagan-appointed federal judge remembered: that we love our neighbors, that judgment is not our prerogative, and that – with God in each of us – we are called to act.

More:

http://articles.boston.com/2012-09-06/metro/33615525_1_disorder-illness-violent-inmates
http://tranifesto.com/2012/09/06/the-michelle-kosilek-decision/
http://news.yahoo.com/transgender-murderer-michelle-kosilek-deserves-sex-change-treatment-155400205.html

Resources for those trying to understand trans issues:

http://transequality.org/Resources/NCTE_UnderstandingTrans.pdf
http://lbgtrc.msu.edu/resources/understanding-transgender-identities