This paper was submitted on April 27, 2016 for the course DR: 6120 at Wayne State University, Human Diversity and Human Conflict by Amber Hughson and should not be copied.
In the United States, gender nonconforming Americans face startling rates of discrimination and abuse, leading to high rates of suicide attempts, physical and sexual assault, homelessness, and imprisonment for survival crimes (Grant, Mottet & Tanis, 2011; Erni, 2013). Despite the reality that transgender and gender nonconforming individuals are very often the victims of harassment and discrimination, legislation has recently been put forward throughout the country to protect cisgender Americans from policies that seek to protect transgender citizens. Intolerance of transgender citizens is often linked to normative insecurity regarding sex and gender, based partly on widespread misunderstandings about gender fluidity, sex, and sexual orientation. Working off of previous research, this paper will connect the experiences of transgender and gender nonconforming citizens to the exploitation of Americans’ insecurities about sex and gender norms by right-wing authoritarians (RWA) and Christian fundamentalists. In particular, North Carolina’s recent successful passage of House Bill 2 (HB 2) will be highlighted as an example of anti-trans political maneuvering by RWA Christian fundamentalists.
To begin, I’ll define the term transgender as well as gender nonconforming, as they will be used throughout this paper. Stryker (2008) defines transgender as “people who move away from the gender they were assigned at birth” (p. 1). In this paper, transgender will include individuals who identify themselves as a gender not assigned to them at birth, regardless of their transition status or performance of their preferred gender identity. Seelman (2014) defines gender nonconformity as “a range of gender experiences, subjectivities and presentations that fall across, between or beyond stable categories of ‘man’ and ‘woman’… [including] those who identify as male-to-female (MTF, or trans women), female-to-male (FTM, or trans men), genderqueer, two-spirit, androgynous, and other gender identities” (p. 187). In some ways, these terms center and normalize sex and gender dichotomy, but they are used with respect and a sincere belief that gender neutral and identity affirming language is on the horizon. From here, I’ll begin by exploring what gender norms are and how they impact transgender Americans in daily life, to be followed by how these norms impact transgender Americans in the law and who is actively creating or maintaining those laws.
Gender Norms and Violence Experienced by Transgender Americans
Feminists, such as Simone de Beauvoir, bell hooks, Judith Butler, and Angela Davis, among many, have explored the ways that female-women throughout history are expected to look, act, and behave as compared to male-men. Further, they discuss how these roles inform and reinforce the social superiority of men over women in patriarchy. Allan Johnson (1997) writes, “…male-identified qualities are associated with the work valued most in most patriarchal societies–such as business, politics, war… In contrast, qualities such as inefficiency, cooperation, mutuality, equality, sharing, compassion, caring…. are all devalued and culturally associated with femininity and femaleness” (p. 154). These types of qualities and behaviors separately assigned to males and females construct our social norms of gender. Tajfel (1970) explains that social norms are “…an individual’s expectation of how others expect him to behave and his expectation of how others will behave in any given social situation” (p. 98). Without the presence of these prescribed norms of how males and females should look and behave, transgender identities would simply not exist. If, regardless of genitalia and hormones, any human being could dress, speak, walk, and otherwise socialize in any manner they saw fit without question, there would be no model behavior to define deviance. These socially prescribed gender norms are the very thing which transgender people do not conform to.
If a transgender person lives as a woman (MTF) or a man (FTM), they may or may not have genital anatomy which matches their gender identity, but they may also have secondary sex characteristics such as facial hair, breasts, broad shoulders, or narrow hips which would be visual cues to strangers that they do not fit into the model of what a woman or man “should” look like according to gender norms. Further, a transgender person may have been raised as a girl, but transition to living as a boy and face social stigma from those who do not accept or understand these changes. In response to their mere presence outside of these norms, transgender and gender nonconforming people encounter discrimination in housing, healthcare, and education at very high rates. Stryker (2008) writes, “Because most people have great difficulty recognizing the humanity of another person if they cannot recognize that person’s gender, the gender-changing person can evoke in others a primordial fear of monstrosity, or loss of humanness. The gut-level fear can manifest as hatred, outrage, panic, or disgust, which may then translate into physical or emotional violence” (p. 6). The National Transgender Discrimination Survey of 2011 showed that 41% of transgender respondents attempted suicide, compared to 1.6% of the general population. Further, that 78% of gender nonconforming students faced harassment in school, 53% of respondents experienced harassment in public accommodations, and 63% experienced discrimination that impacted their survival–such as refusal of housing and health care (Grant et. al). In a study of the experiences of transgender youth, Grossman and D’Augelli found that youth “…expressed fear that the constant verbal harassment and discrimination they faced might escalate into physical violence and sexual abuse, as they found themselves being continually objectified sexually” (2006, p. 124). Research shows that transgender Americans face violence in the physical and emotional sense, as well as structural violence in limiting their accessibility to basic needs such as housing, healthcare, and social services.
One of the many spaces in which transgender individuals face harassment is in public bathrooms segregated by gender. The separation of restrooms by gender is relatively recent, having occurred in the Victorian era with industrialization; this segregation is not biologically necessary, but is socially mandated and reinforces the strict dichotomy between the sexes (Schilt & Westbrook, 2015). Due to a disinterest or inability to conform to gender norms, transgender Americans find themselves stared at, harassed, or physically assaulted in public restrooms, where they encounter cisgender citizens who feel their gendered space has been violated by someone of the “wrong” gender. Seelman (2014) writes, “The pressure to pass creates a situation of “extreme stress” for trans and gender-nonconforming individuals because they must worry about whether they meet others’ gendered standards in order to access spaces crucial to basic well-being” (p. 189). Gender nonconforming Americans are, by nature of these experiences with assault, encouraged to align as closely as possible with society’s expectations for their gender or sex, or to face harassment if they fail to do so.
Among transgender Americans, transgender women were 3.13 times as likely to face harassment than transgender men (Grant et. al, 2011; Seelman, 2014). Transgender women who have transitioned from presenting as men to women are largely misunderstood by Americans who are socialized to believe that men are dominant and superior; for any male to display feminine characteristics results in derision by cis heteronormative men and women (Pharr, 1997). Gender normative Americans reject the idea that a man might want to be a woman, because socialization dictates that women are inferior. However, this interpretation of transgender women retains the importance of biological sex, by situating them as men acting like women, rather than as women acting like women. Grossman and D’Augelli (2006) write, “As gender-atypical behavior is much less accepted in boys than girls, biological males who are transgender are most often the targets of verbal and physical abuse. Without resources and support, these youth often drop out of school, run away, and end up on the streets, where they may engage in survival sex and become at risk for HIV and other sexually transmitted infections” (p. 113). Furthermore, transgender Americans face greater discrimination when they carry multiple marginalized identities, with transgender African Americans faring far worse than all others in rates of physical, sexual, and emotional harassment (Grant et. al, 2011). Violence and discrimination against transgender and gender nonconforming Americans likely stems from perceived normative threat, in which the ambiguity of sex, gender, or sexual orientation due to deviation from social norms, mobilizes vigilance and potential violence in the defense of “something essential about one’s group or nation” (Creppell, 2011, p. 452). Though there is no willful intent to harm by transgender individuals, in defense of social norms Americans have shown a willingness to react with abuse and discrimination out of fear, discomfort, or even disgust.
Faced with high rates of violence in public spaces that are often segregated by sex and gender, transgender Americans have very few options for legal recourse. In spite of this, they manage their lives by choosing the facilities and resources which will lead them to the safest outcome as a matter of survival. America’s failure to acknowledge gender nonconformity as an identity to be protected as a basic right leads to legal discrimination against socially marginalized citizens.
Gender Norms and Legal Discrimination
As illustrated above, evidence has shown that transgender Americans are frequently the victims of physical violence by their fellow citizens, but they also face legal liminality due to American use of sex rather than gender terminology in legal protections and regulations (Johnson, 2010; Erni, 2013). Erni (2013) explains that the use of the term “sex” in legal protections allows loopholes which are exploited by employers, housing providers, and states to discriminate against transgender individuals without recourse, because gender identity is not protected within the law. Further, that anti-discrimination protections for women and LGB individuals have used the basis of biological sex, rather than gender, to fight for equal rights to protections awarded to males and heterosexual people. Erni writes, “While there is no question about the benefit brought about by advancements in women’s rights and same-sex anti-discrimination and equality laws, these advancements are a double-edged sword to transgender people whose very existence defies and repudiates the gender-sexuality system as we know it” (p. 138). As a result, Erni concludes that transgender individuals are disproportionately likely to be arrested, convicted, and sentenced to prison because society both leads them into committing survival crimes such as theft, squatting, and prostitution, but also denies them spaces where they can safely and legally engage within society. Aside from failure to be protected, laws criminalizing nonconforming gender performance date back to the 1850’s in the United States when, in response to the growth of industrial cities which allowed for the development of LGBT communities, cross-dressing was made illegal by many states (Stryker, 2008). Marilyn Frye (1983) explains this as the double bind of oppression–“situations in which options are reduced to a very few and all of them expose one to penalty” (p. 150). This double bind makes decisions about which bathroom facility to use, which locker room, which sports team, or which clothing department to shop in distinctly stressful and dangerous for transgender Americans.
To make matters worse, in the last several months, the oppression of transgender people has been implemented through regulation of bathroom use in public spaces, from schools to court houses. Though there has never been a criminal case filed against a transgender person for assaulting someone in a restroom, nor of a person pretending to be transgender in order to assault someone in a restroom, sixteen state legislatures throughout the country have attempted to pass bills prohibiting gender nonconforming Americans from using restrooms based on their gender identity (La Ganga, 2016; Libresco, 2016). Percelay (2015 June) notes that in the seventeen school districts attempting to enact protections for transgender students, none report problematic incidents that imply risk to cisgender students. Alternatively, in North Carolina, 88% of gender nonconforming students in grades K-12 reported harassment ranging from physical assault to verbal abuse (Grant et. al, 2011). In 2016 the city of Charlotte, NC implemented a city ordinance that protected transgender citizens’ right to use restrooms based on their gender identity, specifically with students in mind. In response, North Carolina’s state government successfully passed a law with the intent of protecting cisgender citizens from transgender citizens seeking to do so.
House Bill 2 (HB 2), also known as the Public Facilities Privacy and Security Act of 2016, legally binds local boards of education and public agencies to designate that multiple occupancy bathrooms are for use based only on “biological sex” (Part 1, Section 1.2b & Section 1.3b). HB 2 defines “biological sex” as “The physical condition of being male or female, which is stated on a person’s birth certificate” (Part 1, Section 1.2). The law also stipulates that citizens of North Carolina may “seek, obtain, and hold employment without discrimination or abridgment on the basis of… biological sex,” amending the distinction of protections from discrimination by the word “sex” alone; thus limiting municipal governments from passing protections for transgender students based on the ambiguity of the term “sex.” The act was made law in North Carolina on March 23, 2016.
The three Republican sponsors of HB 2, Bob Steinburg, Julia Howard, and Dan Bishop, as well as their supportive colleagues, cited maintaining the privacy of women in restrooms as their main reason for implementing HB 2. Julia Howard quotes Senator Phil Berger on her website, “The idea that grown men and young girls should use the same bathroom and middle school boys and girls should share locker facilities defies common sense and puts children and families at risk. This is crazy” (Howard). Similarly, Dan Bishop, HB 2’s most stalwart defender, writes that House Bill 2 would rectify, “the deeply disturbing blunder by the City Council, which by its plain language purports to ban separate bathrooms for males and females, threatening havoc upon thousands of business establishments and the privacy interests of Charlotte’s women and families” (Bishop, 2016). Further, Bishop is quoted by Morrill (2016) as stating, “A small group of far-out progressives should not presume to decide for us all that a cross-dresser’s liberty to express his gender nonconformity trumps the right of women and girls to peace of mind.” Three important social implications are made in these statements: first, that transgender women are not women, and therefore must be men; second, characterization of men as predators toward young girls; third, that blurring segregation between the sexes is a threat to “children and families.” The threat of men entering women’s bathrooms is characterized as physical in these laws and the statements defending them, yet transgender women (and transgender men) have been using bathrooms based on their gender identity for as long as bathrooms have been segregated by gender, without harm to cisgender citizens. Given this, it is reasonable to argue that the real threat of sex and gender desegregation is to norms, not to physical safety or privacy.
Upon media analysis of transgender-inclusive legislation from 2006-2010, Schilt and Westbrook (2015) found that
“Opponents of transgender recognition often brought up the specter of sexual predators in sex-segregated spaces as an argument against the passage of transgender rights legislation. Interestingly, such fears centered exclusively on women’s spaces, particularly restrooms… they often conflate “sexual predators” (imagined to be deviant men) and transgender women (imagined to be always male). This exclusive focus on “males” suggests that it is genitals—not gender identity and expression—that are driving what we term “gender panics”” (p. 27).
Throughout the analysis done by Schilt and Westbrook, as well as commentary by legislators in North Carolina, very little attention is paid to transgender men. Further, there is no evidence that transgender people have a connection to predatory behavior, and in fact evidence shows trans folks are more likely to be the victims of sexual violence than their cisgender peers. Therefore, the question becomes: why is legislation being created to protect cis women from transgender women? This question is particularly interesting when presented in the context of a society where violence against women is perpetrated with notable frequency by cisgender men, with low rates of conviction for those crimes. One conclusion that can be drawn is that these pieces of legislation do not seek to protect citizens from rape or assault, but rather from gender deviance and impurity.
Cavanagh (2010) writes,
By reading another person as ‘perverse’ or ‘paedophilic’ because of the person’s gender identity, and simultaneously appealing (explicitly or implicitly) to the ‘vulnerability’, ‘impressionability,’ and ‘sexual innocence’ of children, parents and caregivers re-entrench the importance of the nuclear family, its heterosexual and reproductive mission, and concordant threat posed by the gender- or sexually dissident subject. Gender impurity here becomes a threat…
The insistence on protection of women by the legislators behind HB 2 embodies the ways that the law upholds patriarchy in America. As transgender activist Brynn Tannehill writes,
“Transgender people represent an imminent threat to many of the patriarchal power structures and arguments that support them. We blur the lines of what it supposedly “means” to be a man or a woman; we obliterate conventional definitions of sexual orientation and sexuality; we lie at the intersection of so many forms of oppression (sexism, homophobia, racism) that successfully taking on transgender issues makes inroads into many of their strongholds” (2014).
The criminalization of bathroom use by gender identity is not one that seeks to protect the safety of all citizens–such as laws against harassment, assault, and sexual violence already seek to do–but are a means of using the legal system to maintain oppression and hierarchical structures which depend on the existence of two distinct sexes with distinct characteristics. While these structures require the majority of Americans to believe in a bipolar understanding of sex and gender, there are a minority of Americans who also see sex and gender as issues of moral importance. It is that moral position which is the difference between maintaining social norms out of ignorance, and actively creating a system which leads to violence and oppression.
Gender and Right Wing Authoritarian Christian Fundamentalists
A significant amount of research has been done about the relationships between in-groups (those who define social norms) and out-groups (those who deviate from social norms), and what leads them to value those within the in-group, in our case cisgender citizens, or disparage those in the out-group, i.e. gender nonconforming citizens. Research has shown that people are more likely to favor opinions which reinforce their in-group identity (Vignoles, Golledge, Regalia, Manzi, & Scabini, 2006) and show favoritism for in-group members, than they are to take harmful actions against out-group members (Hewstone, 2002; Tajfel, 1970). Yet, there are instances of in-groups actively using their power and advantage to discriminate against out-groups, such as in the case of HB 2. Parker and Janoff-Bulman (2013) found that
“…there may be at least one category of group membership that necessarily entails outgroup derogation, and that is the case of morality-based groups… We react to those whose moral convictions differ from our own with intolerance, a strong desire for social and physical distance, and low levels of cooperativeness and goodwill… Disagreements in the domain of morality not only lead to a deceased ability to resolve differences but also to a loss of concern with procedural safeguards (e.g., due process of law) when pursuing ends consistent with one’s own moral position” (p. 82-83).
The sponsors of HB 2, which all profess right-wing affiliations and membership to churches within the Protestant sect (Howard; Bishop; Steinburg, 2010), take specific moral positions in regard to sex, sexual orientation, and gender. Given the positions of these individuals as defined by threats to religious freedom and family values which should not be tolerated, I’ve associated them with two often overlapping groups: Right-Wing Authoritarian personality and Christian fundamentalism. Crawford and Pilinski (2014) describe Right Wing Authoritarianism (RWA) as “a belief that the world is a dangerous place, full of threats to both the individual and the group,” which strongly predicts attitudes on sociocultural political issues (p. 558). According to their research, political intolerance by RWAs results from perceived normative threat. Further, groups that emphasize the importance of “cultural traditions, legitimate authorities, and transcendent moral beliefs” are most often against social change and ambiguity (Chambers, Schlenker, and Collisson, 2012, p. 147). There may be little surprise then, that RWA personalities are often connected to Christian fundamentalism, defined by Kelstedt and Smidt as “a subgroup within evangelicalism that accepts biblical authority, salvation through Christ, and a commitment to spreading the faith. [Fundamentalists] defend these beliefs militantly” (1991, p. 260). Fundamentalist Christianity, while evangelical, can be distinguished from evangelical Christianity in its greater emphasis on conservatism and authoritarianism (Moyers, 1994). The word fundamentalist has its origins in a Protestant text about orthodoxy published in the United States in the early 20th Century called The Fundamentals, which illustrated the “Fundamentals of the Faith from which no deviation could be tolerated” (Zakaullah, 2003, p. 446). Both RWAs and Christian fundamentalists take positions which perceive deviance from morality as threats, which should not be tolerated politically or socially.
At the root of each piece of legislation in the United States which regulates bathroom use based on “biological sex” is a legal organization called Alliance Defending Freedom (ADF), which authored a document recommending language for just such legislation. The language suggested by ADF is replicated throughout each “bathroom bill” being proposed throughout the United States (Percelay, 2015 November). Alliance Defending Freedom describes its origins in 1994, the middle of a decade led by Democrats, as “the Christian community gain[ing] growing awareness that the threats to its freedom were multiplying. The legal system, which was built on a moral and Christian foundation, had been steadily moving against religious freedom, the sanctity of life, and marriage and family”; ADF describes their mission as “defending our most cherished birthright–religious freedom” (Alliance). In regard to the bills they promote, ADF legal counsel Kellie Fiedorek stated, “If the right to privacy means anything, it certainly means that women and girls should not be compelled to undress, shower, or use the restroom in the presence of men. This is just common sense” (Poulson, 2016). In another article, their staff writer states, “No child should be forced into an intimate setting – like a bathroom or a locker room – with a child of the opposite sex. Our model policy provides a solution that prevents children from being exposed to threats to their privacy and safety” (Sharp, 2016). Senior Counsel for ADF, Jeremy Tedesco, writes, “…boys changing clothes in girls’ locker rooms and vice versa? How can this be a good idea? Underage indecent exposure is now a social good? Creating an atmosphere that could result in sexual assaults committed by minors is sound educational policy?” (2013). While ADF’s website argues that the proposed bills are not about transgender individuals but rather about allowing people of the opposite sex (specifically men and boys) to be seen in “private” public spaces, all of the proposed bills specifically allow exceptions for those in need of assistance–therefore, men are explicitly allowed to enter women’s restrooms with women and children, in order to assist their daughters or mothers in using the restroom. ADF’s position is built on rhetoric of privacy and safety from the “threat” of young girls and women being “exposed” to men and boys, under the presumption that the mere presence of opposite sex individuals leads to sexual assault or sexual conduct of any sort. Further, that the sight of genitalia not matching one’s own is a violation of privacy, while the sight of same-sex genitalia does not. As Schilt and Westbrook (2015) point out, opponents to transgender protections portray males as the potential protectors of vulnerable family members–such as wives, mothers, and children–and a sexual threat to women and children who are not related to them. Transgender women, as people who may have pensies, are characterized as “really men” and are therefore a threat (p. 31). The position of ADF, and fundamentalist Christians at large, hinges on the biblical definition of the nuclear family as a male husband, female wife, and innocent children, with sex as a mode of either reproduction or sin (Mohl, 2015). This orientation toward sex and gender paradoxically centers males as both the superior protectors and the dominant aggressors, both the saviors and threats to the purity of women and children. Throughout the discussion of opposite-sex bathroom use, little is said about transgender men who, according to this position, are likely considered impotent and harmless females who, understandably, would prefer to be men.
In order to understand how this level of religious dogmatism became a powerful enough force in American politics as to not only create nearly identical legislation across seventeen states regulating bathrooms by sex, but also to have these pieces of legislation pass until ultimately being stopped by governors in all but one state, we have to look at the history of Christian fundamentalism in American politics. Muhammad Arif Zakaullah (2003) links the arrival of Christian fundamentalists into American politics to the 1950’s and 60’s, with the legislation of desegregation, the end of school sponsored prayer, and the legal right of women to obtain abortions (p. 450). In response to what they perceived to be liberal control of moral issues, fundamentalists, such as Pat Robertson, Billy Graham, and Jimmy Swaggart, mobilized fundamentalists as a force against immorality and away from secularism. In the 1980’s, the Republican Party saw private sector fundamentalists as a means of gaining a majority; strategists created a platform of pro-family values that were anti-homosexual and anti-abortion. Republicans supported Jerry Falwell’s establishment of the Moral Majority (MM), an organization that exerted political influence on Washington for “spiritual and moral direction” to “fight pornography, homosexuality… and immorality in school textbooks” (p. 473). Republican support of Christian fundamentalists, and the fundamentalists’ disappointment in Republican’s focus on free market politics rather than moral issues, led to direct political participation by fundamentalists. Conservative Protestants entered Congress in force in the late 80’s and early 90’s. In addition, fundamentalists created and continued organizations like the Alliance Defending Freedom, to influence the Democratic leadership of the 90’s. For example, pressure from the Christian right influenced President Clinton’s position about gay men in the military to a policy of “don’t ask, don’t tell.” According to Zakaullah,
“…many bills were deliberately designed to be extremist, so that many liberal and moderate law makers would not vote for them, and hence it would ignite the anger of those evangelicals who sympathised with the fundamentalists, but were not themselves active. These repeated defeats would raise temperatures, and lead to action by sympathisers in the form of both money and men” (p. 479).
The involvement of Christian fundamentalists in politics is evident today in the introduction of bills which reinforce traditional Christian definitions of sex, sexuality, gender roles, family positioning, and religious freedom–including widespread anti-abortion legislation, active attempts to prevent same-sex marriage by appealing to states’ rights, and now regulations on bathroom use. Though Christian fundamentalists are not the majority of Americans, or even of Christians, using rhetoric that implies an imminent threat allows them to exploit average Americans’ fears and normative insecurity about sex and gender roles to gain support. They position themselves as the defenders of American traditions and religious freedom, which creates a sense of security and order in the face of ambiguity. Bills that prevent integration between gender nonconforming Americans and cisgender Americans will only lead to greater misunderstanding and insecurity, to be further exploited by the Christian right. These efforts to marginalize gender nonconforming citizens through rhetoric of threat, will ultimately have dire physical and emotional consequences for transgender Americans.
The monetary and political power of Christian fundamentalists in America exploits the fears of Americans who are not fundamentalists, but who do not understand gender fluidity nor its relationship to sex or sexual orientation and therefore see transgender individuals as a threat to social norms which provide order. By framing segregation of people by biological sex as protection from the threat of sexual violence, privacy, and implied purity, fundamentalists fuel the violence acted out against transgender individuals in public and private spaces. Even if legislation does not pass, or meets popular discontent and civil action, the rhetoric of the threat of integration based on biological sex for the protection of transgender rights creates an environment of abuse, oppression, and social marginalization for all people who fail to conform to strict gender norms.
Pettigrew, Christ, Wagner, and Stellmacher (2007) conclude that while authoritarians avoid inter-group friendships, inter-group contact in neighborhoods, at work, or in public spaces leads to a decrease in prejudice. Though Parker (2013) would likely argue that differences in morality between groups makes their conflicts intractable by requiring opposition, Christian fundamentalists are not the majority–instead, they have accumulated power and resources through the exploitation of normative insecurity. If normative insecurity can be reduced by integration, Christian fundamentalists aligned with the Republican party may lose their ability to insert strict gender norms and the oppression they create, into American policy. The issue of bathroom use by gender identity rather than biological sex is not one of religious freedom, even if it may be framed as such. Rather, it is an issue based on misinformation, ambiguity, and segregation. More research should be done about how education about the fluidity and nature of sex, gender, and sexual orientation might mitigate fear of those who fail to conform to present norms. Though fundamentalist Christians will continue to block education about sex in schools, the majority of Christians, as well as other faiths and secular groups may have hope if they cooperate and seek intergroup integration and understanding. Continue reading “A Moral Threat to Gender Norms?: Linking Christian Fundamentalism to Intolerance of Transgender Americans”