The Work of the ACLU: Linking Gender Identity and Gay Rights

December 31, 2000

In the early fall of 1967, the Los Angeles police cracked down on the performances of Sir Lady Java, a transgendered woman, at the Red Foxx Club. Invoking Rule No. 9, which made it illegal for performers to "impersonat[e] by means of costume or dress a person of the opposite sex," the police threatened to arrest the owner of Red Foxx if Lady Java ever again got up on the club's stage. ACLU attorney, Jean Martin, searched for a club or bar owner brave enough to challenge the city law.

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The ACLU took on Rule No. 9 because equality for transgendered people is part of the ACLU's overall mission of advocating equality for everyone. But the ACLU also believes transgender issues are a crucial element in the fight for lesbian and gay rights. The ways in which the freedoms of lesbian, gay, bisexual and transgendered people are limited is rooted in the same stereotypical and tightly bound notions of gender (including gender roles, attributes assigned to either gender, and the expression of gender identity).

The kind of paranoia about gender exhibited by Rule No. 9 was more overt in the 1960's, but it continues today. The connection between transgendered people and lesbian and gay people, though not always obvious, was clear with the case of Sir Lady Java. The police were not merely trying to crack down on a handful of drag performers in L.A. They were attacking drag performers in order to target bars and clubs that often served as the only public places where gays and lesbians could gather. The police made no real distinction between gay people and transgendered folks. In those days, police used all kinds of laws--dress code laws, laws prohibiting same-sex couples from dancing, liquor licensing, etc.--to limit the activities of "deviants." And deviants, of course, included LGBT people.

Generally, people are no longer quite so crude and blatant about discrimination; the era of raids is over, and they may be more discriminating about difference within the LGBT community. However, it remains true that it's often very difficult to separate discrimination and harassment based on sexual orientation from discrimination based on gender identity.

Mary Jo Davis, a lesbian the ACLU is representing in Washington state, was fired from her job as a hospital technician, because her supervisor made assumptions about her sexual orientation based on her gender expression. The supervising doctor called Davis a "dyke" and a "faggot" because Davis had short hair and wore jeans and cowboy boots.

F.F., an anonymous male student is one of the plaintiffs in Flores v. Morgan Hill School District. He was harassed and ostracized for being a "sissy" from the time he was an elementary school student all the way to his high school years. Other male students saw his being a "sissy" as the same thing as being gay, and they refused to dress near him for gym class, claiming he was "a queer who shaved his legs." F.F. avoided the locker room, only to be told by the gym teacher he would have earned better grades if he had changed for class more often. Sadly, F.F. resorted to changing in a closet. Later, in high school, F.F. performed in several dance concerts during which students from the audience shouted at him, calling him "faggot" and "queer."

The ACLU recently filed a friend of the court brief in the Brandon Teena case in Nebraska. Teena, a young transgendered man, was violently raped and then murdered when his friends "discovered" that he was not anatomically male. When the police interrogated Brandon Teena after he was violently raped, they fixated on his gender identity, wanting to know why he ran around and "acted like a guy," rather than focusing on the crime that had just been violently perpetrated against Teena. The rapists were released from police custody and then sought out Teena again, this time to kill him. Brandon Teena's murderers felt they had been tricked by this "dyke who dressed up as a guy." The rape occurred in a drunken frenzy of gender paranoia during which the murderers had to prove to themselves and to Brandon Teena that he was "really" a she: they raped him after pulling down his pants and inspecting his genitalia. This kind of violence is intrinsically related to the fear and prejudice of the police in Los Angeles, the doctor in Washington state, and the school students in California. There is an unspoken societal mandate to suppress any variation on the theme of what it means to be a "real woman" and a "real man." A failure to conform to these standards can provoke a number of reactions from job discrimination to violence as extreme as that endured by Brandon Teena.

In Kentucky, the ACLU is helping the City of Louisville defend a local anti-discrimination law. The law prohibits both sexual orientation and gender identity discrimination. Dr. Barrett Hyman, who is challenging the law, makes the constitutional claim that the city cannot force him to comply, because his religious belief is that it is sinful to be gay. His interpretation of the Bible tells him that it is wrong for men to love men or for women to love women, clearly designating behaviors he thinks are inappropriate based on one's gender. In his deposition, Dr. Hyman made it clear that he also considers it to be a sin for a man "to dress like a woman." He is challenging both the sexual orientation and gender identity language in the new ordinance based on his ideas of what kind of behavior--whether intimate relations or more public forms of expression like dress--is appropriate for people based on what gender they are.

Dr. Hyman's rhetoric is familiar, but times have changed. The United States Department of Justice submitted a friend of the court brief in the Louisville case. Media reports touted this as the first time the United States government has defended a gay rights ordinance, but the Department of Justice also expressly defends the right of cities and counties to ban gender identity discrimination. This is a remarkable moment in the history of the LGBT movement, especially given the fact that as of January 2000 only one state and about 22 localities had passed trans-inclusive laws.

It's a long way from Lady Java to Louisville. The tie between gender identity and sexual orientation endures. We're gaining ground, though, in educating the courts and the public about the ways in which our freedoms are limited. We're also educating ourselves, as an organization and as a community, about the sometimes complex relationship between gender identity and sexual orientation.

Ultimately, by taking on the fight for transgender equality as part and parcel of our lesbian and gay rights work, the ACLU Lesbian & Gay Rights Project will further equality for everyone who experiences discrimination and fear of violence for not fitting tidily into the uncomfortably narrow definitions of "man" and "woman."

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