PFOX Letter About Proposed Transgender Bill
Re: Transgender Bill
Dear Montgomery County, Maryland Council Members:
I am writing to urge that you vote No on Bill 23-07, relating to “non-discrimination” on the basis of “gender identity.”
“Gender Identity Disorder” is classified as a mental disorder by the American Psychiatric Association. Legal protection against discrimination based on mental illness is not provided for any other disorder, and there is no rational explanation why it should be offered for this one. Those who wish to assume a “gender identity” contrary to their biological sex are in need of mental health treatment to overcome such disturbed thinking, not legislation to affirm it.
Furthermore, Montgomery County residents who believe it is better for men to remain men and women to remain women ought to have freedom to act on those beliefs, without facing stigma or punishment. This is the central reason for my opposition to this bill.
However, there are also numerous specific provisions of the bill which are objectionable. I will discuss these in the order in which they appear in the bill.
1) The role of the Human Rights Commission is too broad.
As I have already indicated, I do not believe the county has any business receiving complaints of “discrimination” based on “gender identity.” However, under this bill, the role of the Human Rights Commission is not limited to receiving and adjudicating such complaints. It may also “initiate” such complaints (line 63), presumably even in the absence of a specific claim of harm suffered by a particular individual.
Furthermore, the bill mandates that the Commission “conduct educational and other programs” (line 39); “study and investigate” such “discrimination” in “meetings, conferences, and public hearings” (lines 45-47); “advise county residents” and various government bodies (lines 52-55); “recommend procedures, programs, and laws” (lines 55-56); and “conduct additional programs” (lines 71-72).
In other words, the Human Rights Commission is not only to respond to complaints of “discrimination,” but is to undertake a massive propaganda campaign designed to persuade all Montgomery County residents that anyone who believes it is best for women to remain women and men to remain men is guilty of “prejudice, intolerance, discrimination, and bigotry” (lines 54-55). This type of thought control is wholly inappropriate for any level of government in a free society.
2) The definition of “gender identity” trivializes the significance of biological sex.
The bill defines “gender identity” (lines 81-84) as “gender-related appearance, expression, image, identity, or behavior,” without regard to whether these characteristics correspond “with the person’s assigned sex at birth.” To suggest that the identification of a human being’s sex at birth represents merely an “assignment,” as though it were entirely a social construct agreed upon by the child’s parents and physician, simply defies reality.
Sex is an objective biological reality, identified based on the presence of external genitalia, internal sex organs, and chromosomes, which in the overwhelming majority of cases are entirely consistent and unambiguous at birth. (The tiny minority of births in which there is some ambiguity are entirely a red herring for the purposes of this discussion, since only a tiny minority of persons who are “transgendered” were actually born with such an “intersex” condition.)
3) The bill does not include reasonable exemptions.
Even similar legislation in other jurisdictions usually includes certain exemptions. For example, the federal Employment Non-Discrimination Act (ENDA), which included gender identity protections when first introduced earlier this year (H.R. 2015) had exemptions for:
- employers with less than 15 employees; and
- religious organizations.
Such exemptions are necessary to protect, for example, small family businesses and churches from affirming behaviors that they find offensive and/or contrary to their moral convictions. Yet I find no such exemptions in the text of Bill 23-07.
4) The bill is self-contradictory.
The only exemption that is included is that employment decisions may be made on the basis of “a bona fide occupational qualification” (line 267). In addition, the bill says, “An employer may require an employee to adhere to reasonable workplace appearance, grooming, and dress standards” (lines 271-72). However, most ordinary Americans would consider dressing in ways that are culturally appropriate for one’s biological sex is the most fundamental “appearance, grooming, and dress standard” that could be conceived of—yet requiring that is exactly what this bill is designed to forbid.
Likewise, for any job involving customer service or contact with other clients, dressing in a way appropriate for one’s biological sex may be the most basic “occupational qualification,” because the adoption of the “gender identity” of the opposite sex is often highly unconvincing and therefore disturbing to witnesses (i.e., “other customers may be upset,” as Dan Furmansky of Equality Maryland admitted in his testimony before you on October 2).
5) The bill violates the privacy rights of every Montgomery County citizen.
This is the issue which has drawn the most public attention. The most extreme application of the principle of “non-discrimination” based on “gender identity” would be to the use of gender-separated restrooms, locker rooms, and showers. I must admit that when I first heard this issue raised, before I had read the bill and other documentation regarding it, I had my doubts that anyone could possibly intend for it to be applied in such an extreme way that, for example, a person who is still biologically male (but who has adopted a female “gender identity”) would be allowed to strip nude in front of women in a women’s locker room.
I thought that perhaps Bill 23-07 would include an exemption such as that which was included in the original version of ENDA as introduced in Congress last spring. I would note that including “gender identity” at all under the protections of ENDA has proven so controversial in Congress that it has now been dropped from the bill by its openly homosexual chief sponsor, Rep. Barney Frank (D-Mass.). But even when “gender identity” was included in the bill, it contained the following exemption:
Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
When Bill 23-07 was presented to the County Attorney’s office for an interpretation of this issue, their response in an October 1 memorandum was that the bill “would be interpreted by this office to permit restriction of bathroom/locker room use based on physical gender.” This strikes me as a dose of common sense, similar to ruling that laws against sex discrimination are not violated by the existence of gender segregation in restrooms, locker rooms, and shower facilities.
I was astonished, therefore, to learn that the Council’s Health and Human Services Committee, in its October 15 Worksession, took active steps to amend the legislation in order to insure that the bill would, in fact, guarantee the right of a biological male who identifies as female to appear nude in women’s locker rooms in the presence of nude biological females.
According to an email from legislative analyst Amanda Mihill, the Committee adopted an amendment corresponding to the second-most expansive interpretation of the bill’s application in this context, out of six different options—an approach which “prohibits a person from preventing or prohibiting the use of private [sic] accommodations based on a person’s gender identity ‘publicly and exclusively expressed or asserted by the person seeking to use’ the public accommodation.”
Some of the public responses to this concern have completely missed the point. For example, Councilmember Trachtenberg’s November 2 press release quoted a New Jersey law professor who says that harassment would still be forbidden, giving as an example a case in which “the woman next to me puts her hand on my thigh.” Similarly, Councilmember Leventhal said in a November 1 email to Dr. Ruth Jacobs that “Bill 23-07 does not provide a shield to protect any person who commits a crime in [a] public facility.”
However, “harassment” does not necessarily require physical contact. And is not “indecent exposure” a crime (and one not requiring physical contact)? Would not a male who maintains a male identity be guilty of both “sexual harassment” and “indecent exposure” if he were to enter a women’s locker room and disrobe in front of women? In fact, sexual harassment is considered a form of “sex discrimination”—and is thus presumably illegal under the same Montgomery County law you are now looking to amend.
Yet this amendment would say that if an individual with the exact same male body, include intact male genitalia, were to commit the exact same act after adopting a female “gender identity,” it would not only not be harassment or a crime, but it would be protected behavior, and anyone who objects would be subject to punishment for “discrimination.” This is yet another example of how the proposed law contradicts itself, for which would trump the other—the sex discrimination inherent in the sexual harassment, or the “gender identity” discrimination inherent in trying to prevent such sexual harassment?
Councilmember Leventhal’s further assurances to Dr. Jacobs regarding the continuing effectiveness of the state’s “peeping tom” law also miss the mark. After reading the provisions of the law which he cites (Maryland Code, Criminal Law Sections 3-901 and 3-902), I find they refer primarily to situations in which the victim has a reasonable expectation of privacy from being seen in the nude by any observer, male or female. The concern being raised in regard to this bill, however, involves facilities (such as locker rooms) in which a woman can and must expect that she will be observed in the nude by other women, but not by men. I would imagine that most women accustomed to the security offered by the segregation of such facilities on the basis of biological sex would not be comforted at the thought that men who think of themselves as women would also see them in the nude.
Finally, Councilmember Leventhal assures Dr. Jacobs that exploitation of this law by temporarily cross-dressing voyeurs is foreclosed by the law’s requirement that persons use facilities that are consistent with the gender identity which is “publicly and exclusively expressed.” But how is this provision to be enforced, given that the proposed law includes no requirement that an individual carry proof that they “publicly and exclusively express” a gender identity contrary to their biological sex? In fact, the Health and Human Services committee expressly renounced the possibility of requiring such proof when presented with that option in their October 15 Worksession. So if a cross-dressing male enters a women’s locker room and asserts a female identity, the law requires no documentary proof that such identity is “exclusively expressed,” and any person wrongly challenging such an individual faces potential prosecution for “discrimination,” it seems like there will be very little practical disincentive for such a scenario to occur.
Let me conclude by referring you to the attached article by Dr. Paul McHugh [at http://pfox.org/phpbb/viewtopic.php?p=211#211], formerly psychiatrist-in-chief at the Johns Hopkins University Hospital. It relates how a careful study of transgenderism led them to abandon the practice of performing sex change operations. McHugh notes:
We have wasted scientific and technical resources and damaged our professional credibility by collaborating with madness rather than trying to study, cure, and ultimately prevent it.
A similar statement may be made about the Montgomery County Council if you adopt Bill 23-07.
Sincerely,
Peter Sprigg
Germantown
(The bill is sponsored by Montgomery County, Maryland Council members Duchy Trachtenberg, Valerie Ervin, and Marc Elrich.)