Since the rhetoric has been so polarized and strident in the debate over the main issue of adding "sexual orientation" to the Washington Law Against Discrimination, an essential element of ESHB 2661 has been overlooked: the legal definition of sexual orientation as proposed in the bill:
“heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, ‘gender expression or identity’ means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”"Having a... self-image... different from that traditionally associated with the sex assigned to that person at birth" affords any individual control (in the eyes of the law) over his or her gender identity. If you're physiologically, objectively, and genetically a male, but your (claimed) self-image is female, by this law, anything you seek to do in light of that self-image alone would be protected under the enforcement powers of the Human Rights Commission.
Couldn't a male convict claim he has a female self-perception and demand to be housed in the women's prison?
Couldn't a group of teen boys enter any female locker room or bathroom? Anyone thwarting them would have a lawsuit on their hands. As plaintiffs, they could claim they have the self-image of a female. As a subjective, internal psychological process, how does the defendant, although protecting women's privacy, prove otherwise?
Certainly you could make a case with evidence that prior to the offense, they had shown no outward evidence of believing themselves to be female (more to the point, why should you have to?). That wouldn't win in court, because the attorney could claim his clients changed their self-image, even that very day of entering the locker room.
After winning the case and a large monetary judgment, nothing obstructs the plaintiffs from returning to a male self-image. In fact, nothing in 2661's definition prevents daily, volitional modification of "self-image." Thus, it's so vague as to be meaningless.
The lack of clarity in the definition holds obvious peril of abuse and willful misinterpretation due to the term "self-image." On this basis alone, legislators ought to go back to the drawing board on this bill. I predict numerous expensive lawsuits against municipal law enforcement if they do not.
I realize I'm echoing a point made by Matt Rosenberg (HB 1515's Genetic Flaw) but I personally have yet to hear this precise facet of the legislation discussed in the broadcast debates, newspaper commentaries, or in any of the testimony on the floor regarding 2661. (Note: some have said it was mentioned briefly in the debate, although it was apparently not a major sticking point.)
Today, several amendments to 2661 (by Sen. Swecker and Sen. Benton) were defeated in the state Senate, including adding "political party" to the list of protected classes, and bringing the bill by referendum before the voters.
On Jan. 26th, Thursday, KCTS Connects will be hosting a call-in show debate between Rep. Ed Murray and Rev. Ken Hutcherson regarding the bill.
UPDATE: I want to make it clear that obviously, this obfuscatory language was boiled down from another source. That is, the drafters of the bill were "emulating" other legislative definitions. I think they may have used this one, from Canada:
So, this adds to the confusion. If "gender identity is fundamentally different from and not determinative of their sexual orientation" how can this be part and parcel of 2661's alteration of WLAD? Posted by Brian Crouch at January 25, 2006 03:03 PM | Email This
Gender identity is linked to an individual's intrinsic sense of self, particularly the sense of being male or female. Gender identity may or may not conform to a person's birth-assigned sex. The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender.At birth, a child is assigned a gender by a health care professional based on observation of the child's genitalia. Society makes the assumption that based on this medical assessment a child will grow up to exhibit correspondingly masculine or feminine behaviours and appearances. However, this is not always the case. A person's felt identity or core identity may differ in part or in whole from their birth-assigned sex. Individuals whose birth-assigned sex does not conform to their gender identity include transsexuals, transgenderists, intersexed persons and cross-dressers.
A person's gender identity is fundamentally different from and not determinative of their sexual orientation.
Despite the best intentions of those writing the law, once that law gets in the hands of the attorneys, it takes on a new life never anticipated by those writing or voting on the law.
Posted by: swatter on January 25, 2006 03:30 PMIf you open that can-of-worms, anybody out there with any kind of behavior will want special protection!
(ALL GUM Chewers UNITE! We want Protections from discrimination!)
Posted by: Jeremy on January 25, 2006 03:43 PMAnd it has not been overlooked. If you watched the hearing on HB 2661 (like you said you did) you would have known that the point was brought up several times.
LOL.
Gerald, LiberalWashington.com
Since when is a sex "assigned" at birth? What do they do, alternate days? Today we will assign male, tomorrow female, then back to male, etc. What complete and utter garbage. And to think, we are paying for this, and a lot.
Posted by: fred on January 25, 2006 03:57 PMI will investigate wheter AWB suggested the obfuscatory language. I rather doubt it.
Posted by: Brian Crouch on January 25, 2006 04:01 PM“heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, ‘gender expression or identity’ means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”to “heterosexuality, homosexuality and bisexuality”? I think we can all choke our pride and live w/ that. Sen. Finkbeiner is a real manly man doing what he's doing, especially since he shares a belief w/ me that marriage is between a man & a woman. Posted by: A Watchdog on January 25, 2006 04:03 PM
OK, Jason, define away, just no towel snapping today.
Posted by: Obi-Wan on January 25, 2006 04:12 PMFYI... and go GOP go!
And go Seahawks!!!
Posted by: A Watchdog on January 25, 2006 04:13 PMhttp://www.tvw.org/index.cfm?CFID=5455467&CFTOKEN=39715409
Its about 51 minutes and 30 seconds into the audio. It is really interesting language, and I encourage SP to look more deeply into what it could mean... I'm not exactly sure what it would include either.
Gerald
Does this law mean that sex is assigned at birth? By who? Would this law only apply to people whose sex was assigned to them at birth? For something to be assigned, wouldn't that require a volitional act?
Posted by: Ken Richards on January 25, 2006 04:43 PM
Well I’m not the world’s most masculine man
But I know what I am and I’m glad I’m a man
And so is lola"
I think we must include the lyrics to LOLA in the Bill!!!!!!!!!!!!!!!!!!!!!!!!!!!!
How funny is this!
Dude look like a lady (4x)
Baby let me follow you down
Let me take peek dear
Baby let me follow you down
Do me, do me, do me all night
Baby let me follow you down
Turn the other cheek dear
Baby let me follow you down
Do me, do me, do me, sue me
What a funky lady
She like it like it like it like that
He was a lady
Perhaps the entire Bill should come on a CD and be set to music!
Posted by: Mr. Cynical on January 25, 2006 05:03 PMXX
XY
Anything else is either confusion, or mental illness.
Posted by: JCM on January 25, 2006 05:06 PMAre there lesbians trapped in male bodies who would finally be able to go into the women's locker room?
Are effeminate males finally going to have a law they can cite when asking not to be called sissies?
The possibilities are many; but what, exactly, are the proponents of this bill trying to achieve?
Posted by: Micajah on January 25, 2006 05:08 PMIt's to the the tune of Kumbaya ... a 'camp' camp song. ;)
We wear Birkenstocks...lesbian
We drive pick-up trucks ...lesbian
Ev'ryone has an aunt who is...a lesbian
Oh yeah..lesbian
We don't eat red meat (except some of the time) ... lesbians
we like pocket knives ... lesbians
we own dogs that are part wolf ... lesbians
oh yes ... lesbians
here's a verse for all you non-lesbians out there ...
we wish we could be ... lesbians
we'd join a softball team ... lesbians
but we're not tough enough to be ... lesbians
benchwarmer ... lesbians
we throw solstice parties ... lesbians
we don't tip real well (ooo!) ... lesbians
[i forget this line]
oh yes ... lesssbiiiiiaaaaannnnsss!
How about if you were a middle aged man whose self-image was that of a frisky female Great Dane and you decided to take a crap on the police chief's lawn and then you regained your regular self image after pinching a loaf and picked the waste up in a plastic bag and threw it in the police chief's garbage can?
Would that be legal under this new law? Of course it would. It's what Liberals dream about!!!
Posted by: Rev. A.A. Tappman: Anabaptist on January 25, 2006 05:55 PMOne can easily imagine someone abusing this law to qualify for benefits from health providers, or using the law as a shield for sexual harrasment, or trying to obtain university admission based on gender or diversity quotas, etc.
This is just bad law. It's very poorly worded and researched. This is what happens when politicians under the influence of the gay lobby try to solve racism with more racism. If this law passed, it would also create a disasterous precedent for future volitional status becoming law. What's to prevent a law protecting lower IQ folks?
Most gays claim that their homosexuality is genetic, but what about bisexuals? Is it genetic or choice? We see the same kind of abuse today with university applicants who claim distant ethnic heritage in order to boost their application's appeal to diversity drunk admissions departments.
The only true solution to discrimination is to look beyond physical or other vague attributes and judge based on one's merits and character.
Posted by: Jeff B. on January 25, 2006 06:25 PMThe definition was noticed in the legislature, but I agree that not nearly enough attention was paid to it.
Posted by: jsa on January 25, 2006 06:30 PM"gender expression or identity. As used in this definition, ‘gender expression or identity’ means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression"
As I see it, people will have the freedom to dress in whatever manner best suits their own idea of "gender expression". If a person wants to dress in a "sexy" manner, they will have the freedom to do so, and cannot be punished in any way in any setting where they are "protected" from being "discriminated" against.
For example, a female might exericse her "gender expression" by wearing a bikini top in order to look "sexy". A male might prefer a tank top, or no top at all. Or perhaps a dress or mini-skirt.
The Washington Law Against Discrimination applies in a wide variety of settings, including employment, housing, education, government services, and business which serve the general public (stores, restaurants, movies, etc.).
It would appear that just about any kind of dress code, whether the setting be the work place, public schools, or anywhere else, would be illegal under this new definition of "gender expression".
Posted by: Richard Pope on January 25, 2006 07:34 PMGo Bill Finkbeiner!
PS: There's nothing new in any of this except the hype - it has all been around for 30 years. Get a grip.
Posted by: Thor on January 25, 2006 08:17 PMWhy did you insert the word "claimed"? That changes the entire proposal from sensible to dangerous. But as far as I can tell, that's your word, not to be found in the proposal. Do you take soundpolitics readers for complete idiots?
Is there any serious reason to believe that the abuses you fear would actually occur, as opposed to getting laughed out of court?
If the bill includes the word (or concept) "claimed", then please tell us so.
Posted by: Bruce on January 25, 2006 09:38 PMWho's to say your not hetero and homo from one day to the next. Geesh, who's style you crampin anyway.
Talk about straw men!
Posted by: SP Fan on January 25, 2006 09:49 PM
This Reminds of the last attempt of a sticky definition by the Democrats, "It just depends on what you consider the meaning of IS IS"
I can hardly wait to see the lawsuits from this one. People and Attorneys will be challenging this everywhere from the Boy Scouts to Women's Shower rooms!
Thank goodness we will have some sanity in the Supreme court as of early next week!
http://www.liberalwashington.com/home/2006/1/25/random-reponses-to-sound-politics-comments.html
Just trying to clarify some things,
Gerald
Discrimination against anyone is abhorrent. Most likely 99.99% of the population doesn't discriminate. This legislation is designed to pander to the gay/lesbian/bi-sexual/trans-gender lobby to get their vote.
That lobby should take pause and realize that their real friends and supporters are not pandering legislators that pass laws; rather, their real friends are the republicans and libertarians that want government out of our lives, and let people live their lives without governmental intervention.
Posted by: Obi-Wan on January 25, 2006 11:51 PMHe didn't "choose" to be a pedophile, it's just the way he is...
She didn't "choose" to be a drunk, it's just the way she is...
He didn't "choose" to be a lazy bum, it's just the way he is...
Anytime a legislating body or court legitimizes a specific attitude or behavior by creating laws to protect it, the door has been opened to anyone wanting to sanction their own devient behavior.
Most of us are content to let homosexuals live their own lives and be left alone. But it is they who continue to shove their lifestyle down our throats (see Hollywood and the MSM) in an attempt to politically and morally legitimize behavior many (and probably most) of society finds perverse and disgusting. How many of us really want to expose our children to what they might see and hear in Seattle's Broadway district? Is this legislation really what we want? Have we no shame, Washington?
Posted by: Saltherring on January 26, 2006 05:35 AMIt simply does NOT fit in the language. You can try to tear holes all you want, but the fact is, the law is far more solid than any of you want to admit.
Stop acting like experts and ask some.
Gerald
Seriously, extending this to point of ridiculous has the benefit of making us all equal again.
Remember, the law would protect straight people too - and I know a whole lot of straight people some people think are gay.
I found the floor debate on this bill in the state Senate yesterday revealling. Our state Senate GOP demonstrated once again that it is captive of the far-gone right church wing. Senator Val Stevens actually repeatedly said that any sex that is not for the purpose of procreation is perversion.
Good grief.
Posted by: thor on January 26, 2006 07:57 AMWhat, when, how, where, why, a person uses the equipment they are born with as determined by the genetic determination is...
BEHAVIOR
Behavior is not equivalent to race or gender.
Posted by: JCM on January 26, 2006 08:07 AMFrom "hiding in the closet because you didn't want anyone to know" to vehemently stating "same sex to same sex sex" is normal and expecting everyone to agree with you means you have "come a long way, baby".
TB is right.
Val Stevens could have been a bit more tactful and sensitive, but she told it like it is. It doesn't mean I treat "homosexual" or "lesbian" friends any different.
Posted by: baffles on January 26, 2006 08:12 AMnor·mal (nôr'məl)
adj.
Conforming with, adhering to, or constituting a norm, standard, pattern, level, or type; typical: normal room temperature; one's normal weight; normal diplomatic relations.
As over 90% of the population preferences are in line with perpetuation of the species, it fits a bit better.
Back to the topic - why are these laws needed. When someone applies for a job how does anyone know their "sexual preference"? If someone said to me in an interview I like banging people of the same sex I wouldn't hire them as that is totally inappropriate discussion in an interview. It would have nothing to do with what they like to do in the bedroom.
Posted by: fred on January 26, 2006 09:35 AMI didn't mean to offend but I think you hit the nail on the head: what's normal? If 10% of our population is a certain way, are they not "normal?"
On the behaviour point. A lot of people believe that your sexual orientation is up to you depending on how you want to behave. Other people disagree. Nothing in this proposed law changes anyone's right to believe whatever they want. I have a uncle who is a very devout Mormon who believes his gay son was made that way by God. I also believe gender is determined by God, not the male biological donor. I think gender identity is too.
The legislation just adds "sexual orientation" to a long list of existing protections including race, marital status, religion, ethnicity, disability etc.
By the way, Val Stevens did tell it like she sees it, repeatedly: she views any sex that is not for procreation as perversion. That's what she said - repeatedly. Does that mean that anyone who uses birth control is a pervert? Or anyone who doesn't "go all the way?" I could go on but what's the point.
She represents a particular religious believe that is trying to impose its will on all of us. She has that right. But clergy is clearly divided on this. So let's end this idea that we all know what God thinks.
And good for you baffles, for not treating your homosexual friends any different. But that's no justification to having our government condone discrimination based on "sexual orientation" (hetero or homosexual) because many people are discriminated against and held back based on their sexual orientation, despite your treatment of your friends.
Posted by: Thor on January 26, 2006 11:03 AMBruce nailed the issue without knowing it (typical liberal). Claims, claims claims is what this will be all about.
This silliness will make a greatly expanded industry for liberal lawyers (Washington State Trial Lawyers Association WSTLA to Gregoire--Thanks!!).
They are brushing up on their Title VII lingo in anticipation of it.
The "conference and conciliation" clause will be a boon to the alternative dispute resolution lawyers industry.
They'll need to appoint more liberal judges to rubber stamp the judgments as well. Hurrah!
Watch em go, and watch private sector employers go, and watch public sector stability erode to crises,
and watch petty retaliations, and manipulations increase creating making hostile work environments intolerable and counterproductive.
Then watch the leadership back peddle (more amendments) like crazy on this whole stupid and typically liberal scheme.
Eventually the Supreme Court will issue certiorari for a test case and strike this idiotic measure down, but until then, Gregoire will
chalk it up to another in a long series of destructive measures in the effort to turn Washington State into a liberal turd bowl.
Pathetically humorous in a dark sort of way.
Once again, this bill is very minor in the grand scheme of things. We're talking about just a few simple basics like renting an apartment, holding a job, getting insurance, or taking out a mortgage.
If some of you want to feel free to condemn homosexuality as a sin, oppose marriage for same-sex couples, "protect" your children from being taught about sexual orientation or different types of families... then you may legally continue to do so.
And the "extremes" you claim are fairly unlikely, but let's consider one scenario. Yes, I suppose someone who appears to be a man could claim his "right" to wear a dress to work without being fired because he feels that he is female-gendered. That's fine for a customer service rep at Amazon, perhaps. But YOU COULD STILL FIRE HIM/HER from, say, your law offices if everyone who works there is required to wear a suit jacket and pants as part of the defined professional attire.
I don't understand why Republicans aren't jumping to support this bill to use as evidence that they don't hate queer people.
Posted by: Mickymse on January 26, 2006 02:25 PMRight, you bet.
Unless they intend to rewrite the Evidence Rules, any attorney representing a defendant sued under this law will be committing malpractice if he/she fails to deny that the plaintiff has factual standing to bring the suit.
The part about self-image still must supply evidence to prove it. The plaintiff's statement alone is insufficient since most plaintiffs will be unqualified to render an expert opinion on the science of self-image as an objective reality.
This is called the Frye test and it is used to weed out junk science.
I predict that there will be lots of motions to dismiss for failure to state a claim.
Shyster attorneys everywhere will rejoice all the way to the bank.
Posted by: platypus on January 26, 2006 04:39 PMNo "celebration" from this one...
Posted by: alphabet soup on January 26, 2006 08:35 PMPeople who perceive themselves as something other than their natural identity are peculiar and probably need therapy. They don't need legal encouragement to continue their fantasy..
Gay, lesbian, transgender, horse, sheep, etc...If the self peception is not natural...there is nothing to protect by law.
Posted by: Deborah on January 26, 2006 11:18 PMBy any chance, was her name Goldstein?
Posted by: Amused by liberals on January 29, 2006 10:15 AM