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Post by Jeremy on Oct 25, 2018 7:55:36 GMT -8
Sort of. Genetic evidence is to be used in cases of dispute. The memo states that sex is to be determined on a biological basis that is "objective and administrable." It further states that "Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth."
However, this doesn't actually go a step further than the original Title IX definition of the word. As many transgender activists have argued in the past, the word "sex" does refer to someone's biological birth traits - it's the word "gender," on the other hand, that refers to someone's expression or identity. The original Title IX mandate doesn't use the word "gender" with regards to discrimination - it says "on the basis of sex." So in terms of verbiage, both old and new, the HHS memo proposes the same thing as the original did.
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Post by otherscott on Oct 25, 2018 8:12:31 GMT -8
I also think Title IX and the definition of the word sex in it is a weird place to have this battle. The purpose of it is to say "you can't discriminate based on sex." Which means you can't give males more rights than females or vice versa. The whole "as identified by birth" thing is kind of irrelevant to what the Title is actually trying to accomplish, which is trying to ensure equality between the sexes. LGBT rights are seperate things entirely, and I think we can all agree that the anti-discrimination laws against those groups need to be a lot more robust than they are now.
On a related note, having discrimination based on sex in Title IX include sexual harassment and assault is also very weird and also should probably be covered elsewhere.
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Post by Zarnium on Oct 25, 2018 8:34:51 GMT -8
The idea that "sex" refers to biology/anatomy and "gender" refers to the brain is mostly a simplification used by the media because it's easy to understand. The reality is that the terms are frequently used interchangeably by transgender people, even in a professional capacity. (It is called "sex reassignment surgery" and the M or F on an ID is usually for "sex," after all.) I'm also pretty sure there's a judicial precedent outside of just Obama's orders of interpreting "sex" to refer to gender identity as well, albeit not entirely consistently.
We do need more robust, explicit protections for LGBT people, but in any sane world we'd already be covered under existing protections without any change to the verbage.
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Post by otherscott on Oct 25, 2018 9:06:30 GMT -8
Right and I'm not arguing against that Zarnium.
What I am saying is that "I'm discriminating against you because you are currently a man/woman" or "I'm discriminating against you because you were born a man/woman" is different from saying "I'm discriminating against you because your current gender or sex is different from your birth gender or sex". Both are discrimination that should be legislated against, but Title IX itself is in place to prevent against the former.
That being said, I do see how it could also easily incorporate the latter without too much of a change of philosophy, so I'll back off my point calling it weird.
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Post by Jeremy on Oct 25, 2018 9:30:01 GMT -8
I didn't pick up on the verbal "sex vs. gender" divide from the mainstream media - I've heard it stated, repeatedly, from actual pro-trans doctors and transgender activists. I'm sure there are some folks in those camps who consider the two words synonymous - in fact, I'm noticing plenty of them making this argument in response to the HHS memo. Part of why legislation in regards to trans issues is so rare is that there are multiple contradicting opinions about what constitutes "trans," on top of the various verbal disagreements, which has made it difficult for the movement to gain a stronger footing.
Admittedly, this is the sort of thing that's probably more noticeable to folks who are outside the movement itself, since they're less likely to be subject to internal bias. But that issue can be applied to almost anything. (To use a personal example, there are a wide variety of opinions on what "Judaism" constitutes. Being myself Jewish, I would prefer to ignore interpretations of the religion that conflict with my own. But that doesn't change the fact that those other interpretations exist, and are quite plentiful.)
Maybe there is a judicial precedent that offers a different legal interpretation, but I've yet to find it.
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Post by Zarnium on Oct 25, 2018 10:04:34 GMT -8
I won't deny that the inconsistent and vague terms make things difficult; however, that's simply the reality we live in. Transgenderism is not something that's easy to codify with pre-existing language, and that's still developing. (Ask a gender-variant person what the difference between "transgender" and "transsexual" is, and you'll get a lot of different answers.)
However, I'll also point out that some legal terms and language don't actually mean exactly what they mean in common parlance, anyway. If someone is declared "blind" in a legal sense, it doesn't mean they have no useful vision at all; someone can have severely impaired but usable vision that's still bad enough for it to have legal ramifications. "Sex" is the same way, the difference between sex and gender is vague enough to define trans discrimination as sex discrimination.
Besides, even if we take transgenderism out of the argument entirely and define everyone as their assigned birth sex, this all still doesn't make a whole lot of logical sense. Let's say a "man" goes to work in a dress, and his boss says he has to go home and change or he's fired. How is that not sex discrimination?
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Post by Jeremy on Oct 25, 2018 10:38:04 GMT -8
In pure legal terms, that's not sex discrimination at all. Employees are allowed to enforce professional dress codes in their workplace. Title VII protects employees from complying with dress codes that are harmful, sexually demeaning, or forbid religious attire, but it's unlikely that it would protect an employee who defies an accepted workplace standard. (Exceptions do exist, but they're for instances far more common than your suggestion - for example, California doesn't allow employers to forbid women from wearing pants.)
I agree that language can be conflicting and confusing, which is why I'm focused on objective (or at least widely-accepted) standards. Until transgenderism and its attributes are more objectively "codified," the law should be understood as it is written.
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Post by Zarnium on Oct 25, 2018 11:13:17 GMT -8
If dresses are banned for women too, then it's not sex discrimination. If women are allowed to wear dresses, then it is sex discrimination.
You're also placing an unrealistic standard on the degree to which transgenderism even can be objectively defined, determined, and codified. Its a complex issue that isn't easy to narrow down into simple terms, and it's extremely difficult to get every member of a subculture to consistently use the exact same language at all times. Should we just not seek any protection while we argue about definitions for decades?
And "sex" is widely used in the way I'm describing. Otherwise no one would be trying to change the sex marker on all their documents. It's not my fault that the public hasn't bothered to read some posts in a transgender forum for ten minutes or ask a few transgender people about the subject.
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Post by Jeremy on Oct 25, 2018 11:47:26 GMT -8
Lots to respond to there, so I'll bite-size it: If dresses are banned for women too, then it's not sex discrimination. If women are allowed to wear dresses, then it is sex discrimination. Not under US legal terms. Accepted workplace standards, as I cited above, are generally considered in cases like this. Such standards are subject to change (as was what happened when they passed the aforementioned California rule), but they do maintain a certain level of rigidity - one which "men in dresses" currently falls outside. As another example, American workplaces are far more likely to grant women maternity leave than give men paternity leave. That may sound like discrimination, but it contextually isn't. By all means, seek protections. But be aware that in other civil rights battles, there has usually been a generally accepted consensus on how to define the minority/protected class. It's difficult for even pro-trans outsiders to fight for the rights of trans people when the very definition of what defines a "trans person" is constantly shifting. Sex and gender are indeed considered synonymous by many people - including those who think the very concept of "transgenderism" is irrational, and prefer to think of biological sex as the only determinant. People are free to argue whichever position they wish, but it does bother me that folks who've long granted them different definitions are now, in the wake of the HHS memo, arguing that they mean the same thing. Consistency should trump convenience.
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Post by Zarnium on Oct 25, 2018 12:13:12 GMT -8
The use of the term "sex" to refer to what you are referring to as "gender" goes back much further than when the memo was released, as well as the concept that in addition to changing their "gender" presentation, transgender people and their care providers have often spoken about having a "sex change" as well. Plus, there's the word "transsexual," which is itself poorly defined as I mentioned, but was commonly used to refer to a transgender person in medical literature before the term "transgender" was popularized, and which is still used occasionally today. Its also pretty rare to find a post-transition transgender person who will tell you their sex is male, but their gender is feminine. (Or the reverse for transgender men). Again, it's not super difficult to find this out, most people just don't bother.
What we have right now is a situation where the fact that the terms are frequently used interchangeably is relevant to a major news story, so people who weren't previously in the loop are seeing it for the first time. And yes, it was probably unwise for any trans activists to spread the concept that sex and gender are two separate terms for two distinct things when there was by no means any consistency on this subject among trans people or their care providers; however, when you're dealing with a group of people who have historically had as rough a time as trans people have, there's a big temptation to try to make things as simple and easy to understand as possible for a public that goes ballistic when it sees something slightly out of the ordinary.
Additionally, I'm aware that having separate dress codes is legally allowed in most places, but by any logical definition, this is still sex discrimination that shouldn't be allowed if Title IX means anything.
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Post by otherscott on Oct 25, 2018 13:14:34 GMT -8
It's an interesting issue Zarnium, and one not without it's nuances. Presumably, if you are in the service industry or even an industry where you would have to interact with a client, it's reasonable to believe that people will be put off by a man in a dress. Not that they should, but they will.
Thus you are dealing with a situation where such "dress code" discrimination is not in place solely to be discriminatory, but by the fact that without it they are actually harming their ability to do business. And saying, "well you don't want customers who are put off by that to be your customer anyways" is not really living in the real world.
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Post by Zarnium on Oct 25, 2018 13:26:13 GMT -8
White people used to think that about black people, too, but we have protections against employers refusing to hire black people now. The same could be said for women wearing pants. Society came to accept things like this in part because of anti-discrimination legislation, and the public had to encounter it on a regular basis whether they liked it or not. It also still definitely is sex discrimination, even if someone believes it is justified sex discrimination.
It's also representative of the very real misandry and discrimination against men (and those perceived as men) that no one wants to talk about in lieue of talking about women's rights nonstop. Women can wear pants or whatever other "male" clothing they want, but people go nuts when they see a man wearing a dress. Society has decided that things traditionally associated with men are now "gender neutral", but anything traditionally associated with women is a big no-no for men, leaving them much more restricted than women in terms of physical appearance and presentation.
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Post by Jeremy on Oct 25, 2018 14:58:00 GMT -8
Additionally, I'm aware that having separate dress codes is legally allowed in most places, but by any logical definition, this is still sex discrimination that shouldn't be allowed if Title IX means anything. Two things can be simultaneously true: (1) People are granted a strong level of protection against sex discrimination by Title IX, and (2) an employer is allowed to exercise some level of control over the people on his payroll, particularly if he feels - as Scott suggested - that certain employee appearances/behavior will negatively affect business. I think our key point of divergence - both here and in the discussion in general - is that I'm trying to interpret the law as it is, while you're trying to interpret it as you feel it should be. If that's your preference, it's fine, but I don't think we're ever going to get on the same wavelength. Women have plenty of restrictions in regards to physical appearance and presentation. Men are allowed to walk down the street topless, but a woman would get arrested if she did the same. Women are also judged far more on their physical appearance as a whole - their weight, their use of makeup, and yes, the clothes they wear. And there is some crossover in the other direction - while a man wearing some sort of jewelry is not truly commonplace, it's a more frequent sight than a woman wearing a suit and tie. There are many reasons for the differing attire between genders (arguably, the "let women wear pants" argument was helped by the fact that plenty of men found women in pants attractive, while most women likely would not say the same about seeing a man in a dress). That's not to say that discrimination of men doesn't exist or that it isn't shunted aside in favor of women's rights discussion, but there's a lot more to this gender divide than sheer misandry. Let's focus on this sentence: "Society came to accept things like this in part because of anti-discrimination legislation, and the public had to encounter it on a regular basis whether they liked it or not." This is true, except in reverse order. Black people were prevalent and growing in the American workforce long before legislation to protect them against employment (and other) discrimination was passed. Yes, there was bigoted pushback against them once Congress began taking action, but many white people had gotten used to seeing black people working jobs, and they certainly didn't find it strange to see a black person behind a desk. (Ditto the aforementioned California legislation - women wearing pants was common long before it was passed.) Men in dresses, however, are not nearly as common a sight, and thus a legal case for them - at this point in time, anyway - would likely not stand up in court against an employer's rights and acceptable workplace standards. The Democrats used to have an efficient operation - they would slowly adjust the public to new ideas, and then cement those ideas through legislation. In recent years, however, they've too often opted to ram through legislation, regardless of popular opinion, and then hope that the public quickly adjusts to it. Their success rate, unsurprisingly, has been limited, and unhelped by the way they sometimes lean on victimization terms for justification. (To that end, I do wish you'd stop tossing around the term "sex discrimination," as I think I've at this point rationalized why it's an arbitrary term in this case.)
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Post by Zarnium on Oct 25, 2018 15:58:49 GMT -8
I'll stand for whatever anti-discrimination measures are right; I couldn't care less if other people like it or not. It's not fair to ask people to just wait around until society catches up. I'm not going to give up a lifetime of being comfortable with myself just so that some bigoted snobs don't have to look at me wearing women's clothing and makeup.
There's also a huge political movement backing women being able to wear whatever they want and look as non-feminine as they wish; it would be pretty difficult now to fire a woman explicitly for wearing men's clothing, short hair, and no makeup. The reverse is not true for men.
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Post by Jeremy on Oct 25, 2018 16:26:00 GMT -8
By all means, go for it. Fight for whatever you wish. You could even start a movement to allow men to wear whatever they want in the workplace.
Having the freedom to promote controversial ideas is precisely why America is the greatest country in the world.
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