There are a lot of other fabulous people coming, and the full line up is here.

My paper is entitled "Protecting Transgender Students: Application of Title IX to Gender Identity or Expression and the Constitutional Right to Gender Autonomy." The bottom line of this paper? If you're filing a case to protect transgender students' rights to proper forms of address, dress codes, facilities usage and protection from invasive questioning, then you can't count on Title IX alone. You should also file a claim under the U.S. Constitution for the right to gender autonomy.

You may remember me banging on about the "right to gender autonomy," in a post right here on The Bilerico Project, some years ago when I was writing a law review article on it. That article eventually was published in the Touro Journal of Race, Gender and Ethnicity. Anyway, after the jump is my brief take on the application of this constitutional right to Title IX and transgender students. There are a few typos -- it's just a conference draft -- but look for a much expanded and polished version this coming Fall in the Wisconsin Journal of Law, Gender and Society.

He gives up, exhausted, rests, tries again.
As before.
Enter Vladimir.

ESTRAGON:
(giving up again). Nothing to be done.

VLADIMIR:
(advancing with short, stiff strides, legs wide apart). I'm beginning to come round to that opinion. All my life I've tried to put it from me, saying Vladimir, be reasonable, you haven't yet tried everything. And I resumed the struggle.

Thus begins Samuel Beckett's classic, Waiting For Godot, which reminds me a lot of filing a complaint with the EEOC.

You should keep in mind that a contingency fee is a business arrangement. That means that the lawyer who accepts a case under such an arrangement is betting that there will be an award, and that it will be enough to cover the time and office expenses spent on the case. This lawyer is generally not on a crusade for justice, except to the extent that it means getting you some compensation.

It is a good idea to contact legal organizations, like Lambda Legal, the ACLU, the Transgender Law Center, or the Transgender Legal Defense and Education Fund, to see if they are interested in the case. Their resources are limited, however, so they only take on cases that have a good chance of success and fit within certain legal priorities that the organization considers most important for the community. They can take on only a fraction of the cases flooding into their offices. Even they, however, won't necessarily want to take the case to the U.S. Supreme Court. Some cases are just better off being settled, because litigation is always a roll of the dice.

Should you file a complaint with HR? Well, you could, but then there is what happened to Robert Jordan.

"When the news broke in October 2002 that police in Montgomery County, Maryland, had captured two black men suspected of being the snipers who had randomly shot 13 individuals, killing 10, in separate incidents over a period of weeks in Maryland, Virginia, and the District of Columbia, an IBM employee watching the news on television in one of IBM's Montgomery County offices exclaimed, 'They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them.' A fellow employee, Robert Jordan, who is black, was in the room at the time and heard the exclamation. Jordan was offended and discussed the incident with two other coworkers, who told him that the employee had made similar comments before. Jordan then reported the incident to management. A month later Jordan was fired, purportedly because he was 'disruptive,' his position 'had come to an end,' and management personnel 'don't like you and you don't like them.'" Jordan v. Alternative Resources, et al., 458 F.3d 332 (4th Cir. 2006) (expletives undeleted).

He lost his case.

Federal law prohibits employment discrimination based on sex, which has been interpreted to mean gender identity or expression, as in transgender identity, or non-standard gender, as in gay stereotyping. If you work for a public employer, sexual orientation is covered by some federal courts under the U.S. Constitution. A number of state and city laws also prohibit employment discrimination on these bases. Most large companies also don't allow that kind of behavior and say so in their policies. But what does it mean to try to enforce these rights?

I've recently reactivated my law licenses in New York and New Jersey, and undertaken a number of lawsuits for people who have requested my assistance as a lawyer. So I'm seeing a whole different side to things, beyond the academic theories I've been spending time with for the past decade.

It's a jungle out there.

But it's not about legislation right now. The government agencies and the courts are where it's at. I've moved my activism to those arenas, and it's time to start blogging again.

It's been busy, but lately, blogging has been on my mind. It's not enough to go into our various little cubby holes and do our work. It's important to tell each other what we're up to, providing encouragement to keep going in the face of life's obstacles, and also learning something about what the next challenges are, and where the action is likely to be.

For example, ENDA is so 2000s. Yes, it will get passed at some point, and yes, we should still continue to ask for it. But I'm not putting all my eggs in that basket right now, because the House is too dominated by conservatives to make it worthwhile. Same thing with GENDA in New York State.

Dan Choi was arrested at the White House fence at one of the protests. They said he was blocking the sidewalk, even though he was standing on the fence ledge, not the sidewalk. And then, as we know, President Obama came to the rescue and got behind DADT repeal in a big way, as did many others within and without the Administration, and it happened. But what happened to Dan Choi?

O Captain! my Captain! rise up and hear the bells;
Rise up--for you the flag is flung--for you the bugle trills;
For you bouquets and ribbon'd wreaths--for you the shores a-crowding;
For you they call, the swaying mass, their eager faces turning;
But O heart! heart! heart!
O the bleeding drops of red,
Where on the deck my Captain lies,
Fallen cold and dead.

Of course, Lt. Choi isn't dead, thank goodness, and Walt Whitman's famous poem about the end of the Civil War and Lincoln's assassination isn't comparable. But where are the flags being flung for Lt. Choi, and what bouquets and swaying masses are there for his heroic and selfless efforts?

He seems to have been abandoned by our community and our media after the battle was won.

I haven't seen anything in the LGBT media about his continuing fight. Federal prosecutors are demanding the maximum six months in jail and the government took away all his benefits and are even asking for thousands of dollars from Lt. Choi, bill collectors hounding him. These are the same prosecutors who insisted on disrespecting Lt. Choi, calling him "Mister Choi" in open court, refusing to use his military rank, until the Judge ordered them to do so. In fact, the Judge specifically found that there was sufficient evidence to permit use of a "vindictive prosecution" defense in this case.

Where is the love, people? Do you know what is happening to Lt. Choi?

PROTECTING RIGHTS AND FREEDOMS

Civil Rights. We believe in an America where everybody gets a fair shot and everybody plays by the same set of rules. At the core of the Democratic Party is the principle that no one should face discrimination on the basis of race, ethnicity, national origin, language, religion, gender, sexual orientation, gender identity, or disability status...We know that putting America back to work is Job One, and we are committed to ensuring that Americans do not face employment discrimination. We support the Employment Non-Discrimination Act because people should not be fired based on their sexual orientation or gender identity.(emphasis added)

This is a great platform. Of course, I've been disappointed that I didn't get everything I wanted for Christmas from President Obama and Congress, and I'm holding out for a pony. But my stocking has had something besides a lump of coal for the first time since forever, and I am ardently supporting President Obama and my local Congressional candidates (Go Sean Patrick Maloney!) with my scarce money and my even more scarce time.

But -- and feel free to call me silly -- I want to see my little community reflected in the Democratic National Platform. For so long, we have been considered sideshow circus freaks, and it would mean a lot to me to hear the word "transgender" coming out of the Democratic National Convention. After all, we have a dozen transgender delegates there.

In 2010, Kylar founded Trans People of Color Coalition (TPOCC), the only national civil rights organization dedicated to the needs of Trans People of Color. In 2010, he was appointed as a Division Director of the Section on Individual Rights and Responsibilities, an American Bar Association Committee and Co-Chair for the Committee on Sexual Orientation and Gender Identity. He has spoken at numerous law schools throughout the country including most recently the University of Mississippi, Washington University, St. Louis University, Tulane, Harvard, Temple, University of Missouri-Columbia, and Georgetown as well as numerous colleges and conferences. In addition, he authored the essay "The Evolution of Employment Discrimination Protections for Transgender People", published in "Transgender Rights", the first of its kind, by Currah, Juang, Minter 2006. He is published in the Temple Law Journal and numerous other publications. He is currently in the film "Still Black: A Portrait of Black Transmen." He currently serves on the board of the National Black Justice Coalition and was board chair from 2007 to 2010. He has served on the board of directors of the National Stonewall Democrats from 1998 until 2002, and served as the interim secretary from January to May 2001. He served three terms on the City of Columbia's Human Rights Commission and two terms on the board of the statewide GLBT advocacy group, PROMO: For the Personal Rights of Missourians with the last year being as Vice-President.

There's more, but first I must tell you how proud I am that Kylar has been appointed the the Rules Committee for the Democratic National Committee (DNC) 2012 Convention Platform Committee. Kylar is headed to the DNC Convention! And he needs some help to make it there.

We started the day with my annual "Fifty Top Developments in Trans Law" talk. It is amazing how many things happen in a year. The list is after the jump.

Our keynote speaker was Diana K. Flynn, Chief of the Appellate Section of the Civil Rights Division of the United States Department of Justice since October 1986. In this capacity, she is responsible for the direction and management of the Division's litigation program in the United States Courts of Appeals and, under supervision of the Solicitor General, in the Supreme Court. Prior to her appointment as Appellate Chief, Ms. Flynn served in the Division as counsel to the Assistant Attorney General and as an appellate attorney. Before that, she spent several years engaged in the private practice of law. She is a 1979 graduate of Yale Law School and a 1976 summa cum laude graduate of the University of Rochester.She is incredibly insightful about civil rights litigation, and told her personal story about transitioning on the job there several years ago during the previous administration. She is a community treasure.

We also had a panel "Beyond Bullying: Trans Youth and Education?, with panelists Joseph Wardenski (U.S. DOJ, Civil Rights Division) Sharon McGowan (U.S. DOJ, Civil Rights Division, Appellate Section), Elizabeth Gill (ACLU of Northern California) and Asaf Orr (California attorney who represents parents and kids in educational matters). There was a great discussion about how to use legal means to educate school officials to accommodate and include trans kids safely.

Our afternoon panel was held jointly with the Family Law Institute, on the subject of Trans Marriage and Parenting. Our panelists were Jennifer Levi (GLAD), Shannon Minter (NCLR), and Denise Brogan-Kator (Family Equality Council). We discussed some of the intricacies of pre-transition and post-transition marriages, and divorce, annulment and custody issues. This was followed by a discussion with local activists Ruby Corado and Jason Terry of the D.C. Trans Coalition. We heard about some of the good work the Coalition is doing, and how we, as attorneys, can help the trans community more effectively.

Afterwards, we adjourned to the bar upstairs, and got a chance to catch up. I can't wait for the next one, and I hope you'll consider joining us.

The most important development, from my point of view, came in an area about which I have not spent much thought or time: trans military service. I'm not a fan of war (who is?), and like Ike, I have my questions about the military-industrial complex, but I'm thankful there are people who are willing to sacrifice their lives to preserve my freedom. In the wake of last year's repeal of Don't Ask Don't Tell, the Association for the first time hosted military recruiters at its career fair, including the United State Air Force Judge Advocate General Corps, the United States Army Judge Advocate General Legal Center and School, and the United States Coast Guard Office of the Judge Advocate General.

The Association has encouraged firms at the career fair to consider including gender identity/expression, and over 80% of the recruiters at this year's fair have non-discrimination policies explicitly including gender identity. I think that all recruiters who come to recruit at the LGBT Bar Association should have such policies. Military recruiters are in a special category. Not only do they not have such a policy, their regulations actively prohibit service by openly trans people. This, obviously, is very troubling. At the same time, I think it would be a good thing if LGB lawyers join Judge Advocate Generals and help from the inside on the issue of trans military service. The scales on this issue are very tippy, and it's not clear to me exactly where the balance lies. The Association chose to host them at the conference.

Nonetheless, regardless of how I might have felt about hosting military recruits, I am very happy that this year's conference began the first open forum on trans military service by a national organization. It was a plenary session attended by the whole conference, and thousands of attorneys heard about the legal issues and the personal stories underlying them. In addition, the Association will be holding open discussions around the country during the coming year on this issue. The video of the forum after the jump. It was extremely moving, and poignantly demonstrated the importance of this issue, even to a skeptic like me.

In short:

"The pregnant women targeted are at risk for having a child born with the condition congenital adrenal hyperplasia (CAH), an endocrinological condition that can result in female fetuses being born with intersex or more male-typical genitals and brains. Women genetically identified as being at risk are given dexamethasone, a synthetic steroid, off-label starting as early as week five of the first trimester to try to "normalize" the development of those fetuses, which are female and CAH-affected. Because the drug must be administered before doctors can know if the fetus is female or CAH-affected, only one in eight of those exposed are the target type of fetus.

The off-label intervention does not prevent CAH; it aims only at sex normalization."

According to Lili Velez, a freelance medical writer and former professor of biomedical writing:

Needless to say, I would bet the people administering these treatments have a rather narrow idea of what "normal" is for human beings.

Pregnancy is a time when joy can turn to panic in the blink of an eye, and wanting a "normal, healthy baby" can leave families with difficult choices. We don't, scientifically or culturally, really understand the full range of "normal" for humans. It's been a challenge for families raising children with intellectual, metabolic, or physical differences to make a safe pathway for their lives. The same dignity about difference needs to be provided for CAH-affected children and their parents.

At the same time, this has created a platform for the oldest prejudices and canards against us to be aired as we struggle to create lives worth living. Martin Luther King often said that the arc of the moral universe is long, but it bends towards justice. But how quickly justice is to be achieved is not stated, and the arc can be long indeed, generations long.

What are the barriers to transgender people achieving the measure of power necessary in democracy for the recognition of the human rights to which we are entitled? Why are we so far behind the gay community in rights, economic power and cultural acceptance? What do we need to move our community forward?

I've been thinking about that lately, and here's what I've come up with. What do you think?

Nonetheless, I found myself spending the last 24 hours arguing for Ms. Wachowski in my head over and over again, as I watched headline after headline discussing the merits of her life and identity, as if this spectacle were completely unproblematic.

Last week, promoting their new film's trailer, which looks amazing, by the way, the co-directors released a short on-camera discussion about the film. In response, I saw the following in the media:

Movie buzz: Wachowski's new identity (Newsday)
The Matrix director transgender: Larry Wachowski now Lana (San Francisco Observer)
Watch: Matrix Director Debuts as Transgender (Seattle Post Intelligencer)
Video Of Lana Wachowski, Hollywood's First Transgender Director (Village Voice)
Matrix Director Sex Change: Larry Wachowski Now Lana, Sports Pink Dreadlocks (International Business Times)
Directors cut! Matrix he now a she? (New York Post)
Lana Wachowski's quiet coming-out party (Salon)
Larry Wachowski Transgender: 'Matrix' Director Reveals Transition (HuffPo)

This is to say nothing of the vicious, angry transphobic comments placed on every site that featured Cloud Atlas, even where Lana Wachowski was not directly the topic of discussion. Lana Wachowski's transition was news five years ago. Now, it is not news, but something else entirely. It is prurient, zoo-specimen gawking of the worst type, something that trans people must endure all the time, patiently, without a trace of the irritation that I often feel. When I work with employers to assist in an employee transition, this is one of the most important elements of the work: to save trans people from the constant gawking of both detractors and well-wishers so they can do their jobs, because being a zoo specimen is hard work. It's even harder when you have well-wishers, who feel they are doing something good by pointing you out and giving you a round of applause.

[S]cores of her friends strutted past in the dark, stopping often to air kiss, catcall or sometimes brawl....Many are working as prostitutes...skintight candy-striped dress...she leaned against a prewar apartment building where some studios rent for $3,700 a month....reducing the scene to one of vice is to get only part of the picture...."I was so blown away," she said. "I'm from the Caribbean -- you have to hide."...platform thigh-high boots, buttocks-revealing denim shorts, red-pleather boleros with matching caps and tops of the backless, sleeveless or even frontless variety...brightly colored like flocks of exotic -- if risqué -- parakeets...But while the T-girls are often beautiful, none deny that most nights here are fraught with ugliness...unruly customers...violent episode at a Dunkin' Donuts...police place giant spotlights to discourage crime...The screaming fight lasted for blocks, all the way to the river and into the night.

Do I find this description distasteful because it emphasizes the ridiculous, or because it reminds me of racist rhetoric, or because it views its subjects as trash? I'm not sure, what do you think?