Since sexism no longer matters, plaintiffs try using “gender identity” to win relief from sexist injury
August 12, 2013
“I lean more towards the feminine spectrum, but I do ovulate between masculine and feminine. It just depends on the day, girl!” – B. Scott, explaining his gender suit.
There was a time when lawyers filed actions against individuals and organizations that discriminated against their clients based on sex. Some of these cases involved damages caused by institutions or officials who illegally discriminated via enforcement of sexist stereotypes. These cases were usually brought on behalf of women. Examples include women who were not promoted due to their failure to exhibit ritualized behaviors of submission not required of their male coworkers , women who were required to don sexualized uniforms and maintain specific, expensive (unpaid) time-consuming body grooming and face-painting regimes as a condition of workplace readiness not required of male co-workers.
These lawsuits were filed on the grounds that sex-stereotyping is discriminatory against women, and when institutionally or officially enforced, illegal.
The current age of profound political backlash against the rights of women has resulted in a reinvigoration of state, official and institutional codification of sexual stereotypes (“gender”) as a legally protected form of discrimination now framed as a personal belief or “faith”. As such, sex discrimination has been re-classified as a state-protected institutional and personal “value”.
The new form of sex-based discrimination has elevated the sex-stereotype to a protected legal category that eclipses sex itself. Claims of sex discrimination are now opposed by the new protected “right to believe in” sex discrimination. This new protected form of sex stereotyping is called “gender” or “gender identity”. The legal creation of “Gender Identity” is identical to the old form of discriminatory sex stereotyping except that it now protects and codifies the “right to stereotype” while providing limited recourse against sex discrimination to individuals that publicly, formally pledge belief in sex stereotypes. Examples include statutes which allow males to displace females in state education Title IX sports programs on the basis that the males believe themselves to possess thoughts, feelings, and behaviors sex-stereotyped as female.
What then will become of those claims formerly filed under now eliminated sex discrimination protections? Two recent actions provide us with a clue.
Fashion pundit and femme gay male internet personality B.Scott filed a 2.5 million dollar lawsuit against Viacom and the BET cable network last week after an incident which took place during his July appearance on the pre-show for the BET Awards. Scott claims he was pulled off the air and told his clothing did not adhere to the company’s sex-based dress policy. He states that he was forced to change outfits to one that BET producers deemed appropriate for males based on sex-stereotypes. These actions resulted in alleged damage to Scott’s reputation due to an interruption of his performance, wrongful termination, loss of income, and emotional distress due to the unlawful infliction of discriminatory wardrobe policies based on sex. However since sex-stereotyping is now a protected legal category Scott’s attorney recommended filing suit on the basis of “Gender Identity” discrimination. One problem: Scott has no record of ever making public pledge or testimony of a personal transgender belief or “identity”. On the contrary, Scott has always maintained a strong pride in himself as a flaming gay man. As part of his lawsuit, Scott was forced to make a public statement adopting a personal “gender identity” and proclaiming himself to be transgender.
“Over the years my love muffins and strangers alike have questioned me about my gender identity. What IS B. Scott? As a society we’ve been conditioned to believe that a person has to be ‘exactly’ this or ‘exactly’ that. Biologically, I am male — as my sex was determined at birth by my reproductive organs.
However, my spirit truly lies somewhere in between. It is that same spirit that has allowed me to become so comfortable in my skin, choose how I express myself, and contributes to how I live my day-to-day life.
Transgender is the state of one’s gender identity (self-identification as woman, man, neither or both) not matching one’s assigned sex (identification by others as male, female or intersex based on physical/genetic sex). [source]
It is by that definition that I accept and welcome the ‘transgender’ label with open arms.
It is also by that definition that BET and Viacom willingly and wrongfully discriminated against my gender identity during the 2013 BET Awards Pre-Show.”
B.Scott’s announcement did not sit well with many in the transgender community who disputed the authenticity of his newly declared protected gender beliefs. Longtime trans activist and Transgriot blogger Monica “Fishy” Roberts (who believes he is female and refers to his penis as a “six inch neo-clitoris”) tweeted “When B Scott starts taking hormones and calling himself Brittany (or another femme name starting with ‘B’) and declares he’s transitioning then I’ll consider him part of Team Trans.”
Roberts and others rightfully observe that Scott’s sudden public testimonial of his newly adopted Gender Identity beliefs appears insincere and mercenary. However unlike an individual who suddenly proclaims Judaism to access a protected legal right to compel an employer to give them the day off for Passover, the protected legal category of Gender Identity requires no evidence of authenticity. Duration of belief, performance of rituals, membership in a faith affinity group are objective criteria used to parse self-declared legally protected personal belief identities. Gender Identity requires no such objective criteria. Anyone can claim it at any time, even retroactively, purely on the basis of personal report of one’s feelings. Gender Identity offers legal protection to anyone who is willing to declare at any time that they:
– possess intellectual, psychological or behavioral characteristics which fail to conform to social stereotypes based on reproductive sex,
-believe such non-reproductive traits are inextricably caused by reproductive biology,
-draw the conclusion that reproductive biology itself is therefore not objectively observable.
This new protective legal status for “sex-deniers” has undermined, if not removed, the grounds for claims based on sex discrimination, or at least provided cover for the lack of political will to enforce anti-discrimination claims of women, who are overwhelmingly the victims of such sex discrimination. It is little wonder that femme gay man Scott decided not to pursue remedy via sex-discrimination suit although that is obviously what he was a victim of if his account of events is factual.
Instead of asserting his right to dress as he wished regardless of sex, Scott’s representatives found it more advantageous in this legal environment to argue that Scott’s right to wardrobe hinged on his self-concept of himself as reproductively (partially) female.
In Quebec last month, management consultant and butch lesbian Tommi Sojourner filed a Judicial complaint on the grounds of “Gender Identity” after an incident of apparent sex-based harassment that occurred in a bizarre courtroom exchange with a judge who insisted on referring to the claimant as male over and over and over again, even after correction by Sojourner and opposing counsel over a dozen times. Sojourner, who does not perform femininity, expressed that being repeatedly referred to as male – after multiple corrections- based on her failure to conform to female sex-stereotypes was insulting, sexist, and deliberately harassing. Further, she alleges that her case was not given an objective hearing due to judicial bias based on her sex-role nonconformity. This is sex discrimination. It is discriminatory for a judicial official to insist that a woman is actually a male due to the fact that she fails to conform to sex-based stereotypes of dress and behavior and it is harassment to continue to do so after being corrected more than a dozen times.
Sojourner’s claim rests on the fact that she is not transgendered. If she was a genderist she would have been well pleased by the judge’s repeated cross-sex identification of her, based on sex-stereotypical norms. Regardless, in the post-sex legal landscape where “sex-denial” is itself a protected category, her attorney thought it expeditious to utilize a Gender Identity claim vs. a sex discrimination case. By this erasure Sojourner was not discriminated against as a woman based on sex, or as a lesbian, but on the dis-acknowledgement of her own personal free-floating self-concept of herself as (like Scott) inhabiting “femaleness“.
If sex does not exist, sex discrimination does not exist. Class-action litigation based on sex does not exist.
With the elimination of the legal category of sex and the removal of sex-stereotyping as an actionable wrong, litigants have no choice but to seek protection under “Gender Identity” on the basis that formerly discriminatory (now protected) sex-stereotypes are being incorrectly applied to them based on personal testimony of their self-reported, objectively unobservable, sex reproductive “self-concept”.
This is legal political feminist backlash circa 2013.