As Ru Paul said, "we are all born naked - after that, everything is drag." And as Judith Butler said, we 'perform' gender. But not all of us do it 'right.'
Ru Paul became one of the most famous drag queens in mainstream media history after being the face of M.A.C cosmetics and the M.A.C AIDS fund in 1995. He is credited with the statement, "We're born naked, and the rest is drag."
There has been a lot of progress on gay and lesbian human rights in the West. All countries in the European Union are required to have laws prohibiting discrimination on the basis of sexual orientation or gender identity. But do those kinds of laws help the people most likely to face discrimination?
None of the people who brought the pioneering court cases in the west were sissies or toms. None of the GLBT cases talk about gender non-conformity.
Oh yes, there are the transsexual cases.
For years the European Court of Human Rights was obviously uncomfortable with transsexual rights, giving inconsistent decisions. Finally in 2002 the Court got it right. It ordered the United Kingdom to correct the information on Christine Goodwin's birth certificate and other identity documents to reflect her post-operative gender. The court said she must be allowed to live her life in dignity in accordance with the sexual identity chosen "at great personal cost." And she had the right to marry in accordance with her new gender. As an MTF she could now marry a man.
What is the result? Gender conformity. The person in the dress with the post-operative genitals of a woman can marry a man.
No wonder Singapore recognises the post-operative gender of transsexuals. It brings things back (as much as possible) into (some sort of) heterosexual order. China and Japan do the same thing. Thailand does not - for kathoeys are understood to be a third sex. Gender non-conformity is not a conceptual problem in Thailand. Everyone knows that there are more than two genders.
In earlier decisions the European Court of Justice looked at the questions whether firing a transsexual or a homosexual was discrimination on the basis of "sex" (prohibited by the treaty setting up the EU). Yes for transsexuals. No for homosexuals. It seems that homosexuals challenged gender roles more than transsexuals.
Later the UN Human Rights Committee ruled that discrimination against homosexuals was discrimination on the basis of sex. But no talk about "gender non-conformity."
What if a firing was because of gender non-conformity? The firing of a macho female financial advisor who wore no make-up? Or the firing of a male police sergeant who wore too much?
Price Waterhouse v. Hopkins (US Supreme Court, 1989)
Back in 1982, PriceWaterhouseCooper, the big international accounting firm, was no equal opportunity employer. Of 662 partners in the firm, seven were women. Of the 88 individuals considered for partnership in 1982, there was one woman - Ann Hopkins.
The trial judge found that Ann Hopkins had an abrasive manner of dealing with people, particularly other managers and subordinates. Partners said she was "macho." She needed to take "a course at charm school." When the decision was taken in 1982 to deny her promotion, one of the partners advised her to walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.
The 1964 US Civil Rights Act bars discrimination in employment on the basis of "race, color, religion, sex, or national origin." The US still does not bar discrimination on the basis of sexual orientation or gender identity.
Ann Hopkins sued alleging discrimination on the basis of sex. She won on the basis of "sexual stereotyping." The law had been enacted to end sexual stereotypes in employment. Ann Hopkins had been put in a bind - out of a job if she behaved aggressively and out of a job if she did not. They wanted her to be tough and aggressive like a man and they wanted her not to be tough and aggressive, for she was a woman.
The end message: you can't fire a competent tom for being a tom. "Sex" in the Civil Rights Act had been extended to cover gender performance, gender non-conformity.
Smith v. Salem (US Court of Appeals, Sixth Circuit, 2004)
Jimmie Smith had worked for the city fire department for seven years. He was diagnosed with "Gender Identity Disorder." He began "expressing a feminine appearance on a full-time basis."
After some co-workers questioned him about his behaviour, he told a supervisor that he was a transsexual and expected to undergo sex reassignment surgery. City officials met and planned how to get rid of him. They demanded that he undergo three separate psychological examinations with doctors of their choosing. The matter wound up in court.
The court reasoned that Smith had picked up the "term-of-art" created by the Hopkins case - "sex-stereotyping" - to do an end run around the fact that the discrimination was on the basis that he was a transsexual.
The Civil Rights Act does not prohibit discrimination against transsexuals. Judges in earlier cases said that "Congress had a narrow view of sex in mind" - "the traditional concept of sex." One case said that the Civil Rights Act only applied to "sex" and not to "gender." In contrast, the Supreme Court in the Hopkins case kept talking about "gender" - almost more than "sex."
The Smith decision clearly held that transsexuals could argue "sex-stereotyping." It, and the later Barnes case, do not adopt the European position that discrimination against transsexuals is a form of discrimination on the basis of sex.
Barnes v. Cincinnati (US Court of Appeals, Sixth Circuit, 2005)
Phillip Barnes was a police officer with the City of Cincinnati for 17 years. In 1998 he very successfully passed the examination required to become a sergeant. His promotion was followed by a probationary period.
Barnes was a pre-operative transsexual, who often lived as a woman off duty. The judge noted that Barnes had a reputation throughout the police department as a homosexual, bisexual or cross-dresser. No other male sergeant was known to be gay or have a feminine appearance.
Some said that Barnes lacked the necessary "command presence" that would project confidence and gain the respect of subordinates. Barnes had a French manicure, arched eyebrows and sometimes came to work wearing makeup or lipstick. He was told to stop wearing makeup and act more masculine.
The promotion to sergeant was revoked. No other promotion was revoked between 1993 and 2000.
He sued under the Civil Rights Act for discrimination on the basis of sex. The trial court found that Barnes had been demoted because of gender non-conformity.
The fact that Barnes was a pre-operative transsexual provided a reason for the gender non-conformity, but did not move the discrimination out of the category of gender non-conformity and into a separate category for transsexuals. As with Ann Hopkins, discrimination on the basis of gender non-conformity was within the prohibition of discrimination on the basis of sex.
The paradoxical and appropriate result
US legislation does not bar discrimination on the basis of sexual orientation or gender identity - unlike the general pattern in other Western countries. The US is clearly behind the Western pack on this.
But paradoxically, the court decisions in Hopkins, Smith and now Barnes, focus on gender non-conformity. They focus on the kind of individuals most likely to face discrimination - most likely to not get hired or to get fired.
The US Supreme Court just refused leave to appeal in the Barnes case, letting the decision of the Court of Appeals stand. Bravo.
Professor Douglas Sanders is a retired Canadian law professor who lives in Bangkok. He can be contacted at sanders_gwb@yahoo.ca.
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